a philosophy blog

Abortion, Sex, and the Limits of Morality - Part I

A survey of important opinions


The classic case against abortion

The traditional view goes roughly like this:

  1. It is wrong to destroy a person.
  2. A fetus is a person.
  3. Therefore, it is wrong to destroy a fetus.8
8. I won’t rehearse this argument in detail here except to say that the first premise is one that could only have occurred to someone who requires such injunctions. And the second premise was invented to make the first one easier. At the end of this discussion it should be clearer why I say this. I mention the argument here because it is background to what follows and because in its legalistic simplicity it bears all the marks of having settled for a long time the issue for those whose interest in the matter is constitutionally and fatefully removed. (Reread this note after finishing this piece and it will make more sense.)

John Noonan9 offers a well-known defense of the second premise, arguing that a fetus is a person or a morally significant being whose destruction is wrong. He goes through a list of items sometimes latched onto as markers of fetal entry into the moral realm: viability, physical appearance, feelings of attachment toward the fetus by others, etc. He rejects them all as either too arbitrary or too elastic to serve such an important function.

9. John T. Noonan, The Morality of Abortion: Legal and Historical Perspectives, (Cambridge, MA: Harvard University Press), c. 1970. Noonan presents a proper defense of the humanity of a fetus. For more on the classic argument, see also Michael Tooley, “Abortion and Infanticide.” Philosophy & Public Affairs 2:1 (Autumn 1972): 37–65, and my notes on Tooley.

Viability outside the mother’s uterus as a marker of independent moral status is a potential moving target in light of the technology to save premature infants in the last trimester, at one end, and of in vitro fertilization and developing early gestation techniques in the early first trimester, at the other end.

Physical appearance and the presence or absence of feelings of identification with the fetus are manifestly arbitrary and invitations to partiality that worry moral philosophers.10

10. But Jane English writes, “Our psychological constitution makes it the case that for our ethical theory to work, it must prohibit certain treatment of non-persons which are significantly person-like.” See note 1.

The heart of Noonan’s argument rests on identifying the singular event that signals our entry into the realm of moral significance. Only the moment of conception fits the bill as a relatively clear marker of the beginning of the path to personhood. The probability, Noonan writes, that we shall end up fully human, in the most loaded sense of that term, is about 80%11 once we have been conceived. (Any given spermatozoon or ovum prior to conception has a probability of being in the history of an adult human thousands or millions of times less.) For Noonan, conception is as clear a marker as we can ask for.

11. More recent estimates suggest that the percentage of embryos that survive to birth is only 20-30% due to fetal pathology. Enid Gilbert-Barness, Diane Debich-Spicer, et al. Embryo and Fetal Pathology, Cambridge University Press, 2004, p. 14. Still Noonan’s point stands. There is a vast change in probabilities at conception that is not matched at any other point of development.

If we grant this, a mother does not have a right to abort unless her life is in danger. Though she too is a person with a right to life, after all, and so has a right to self-defense, even at the expense of an innocent, injury, pain, suffering, indignity, inconvenience, or trespass on her body do not rise to the occasion as excuses for ending the life of a highly probable person. She has a right to defend her life but not a right to untrammeled control of her body—or dignity, for that matter. Rape does not change the case.

Casseri plate
Casseri plate from Spiegel’s De formato foetu liber singularis (1626)

Noonan’s conception of a person amounts to that which is conceived of human parents. This is a genetic definition, as Mary Ann Warren calls it. Is it adequate for drawing moral conclusions? How do we get from a genetic person to a person who has moral status? Moral status is not an observation in the way a stage in fetal development is. Moral status is conferred upon some entities and not others. Certain diseases may be “conceived” after a fashion in sexual intercourse. We do not confer the cells attending those conceptions moral status. What is it about the cells that will likely become a person that triggers having moral status conferred upon them? If it is because they will become a person, then we are admitting they are not so yet. So what has to happen to those cells, or what must they be capable of, before they accrete moral status? Whatever that is would help us understand what a person is in a way that explains the normativity implied if we think it is not ok to kill one. Normativity is an expression of value. Our next philosopher addresses this.

Mommie has a license to kill

Mary Anne Warren offers a response to the classic argument against abortion based on the relative rights of mother and fetus which in turn stem from their relative personhood. She argues for a position we can call, for short, “abortion on demand.” She denies the second premise above. A fetus, she claims, is not a person—that is, not a fully invested member of the moral community in which the injunction not to kill ordinarily has effect. Therefore, whatever else it might be to destroy a fetus, it is not wrong in the way it is wrong to destroy a person.

For Warren, a being, to be a person, must have at least some of these capabilities (among possibly others):

  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.12
12. Mary Anne Warren, “On the Moral and Legal Status of Abortion,” The Monist, 1973, paragraph 30. A selection is accessible online (2/14/2012). See also Bianco Luno, “Sacred purview and insistence.”.

Clearly, a fetus has none of these things and so is not a person with a right to life.

One way to refuse to accept Warren’s conclusion appeals to the fact that a fetus does have these traits potentially and, as such, is a potential person and in virtue of that has a right to life.

The Brood
Samantha Eggar, David Cronenberg’s The Brood (1979)

Warren responds that a potential person does not have the same rights that an actual person does.13 If we address the rights of a potential person in isolation, perhaps, a case could be made for the fetus’s right to something. But the problem is that there is a contest. The mother, as an actual person, has an actual right to life and an actual right to autonomy (in this context, control over her body). The fetus, as a-not-yet-actual person, has neither. No actual right the fetus has is violated if the mother chooses to abort it. The most you can say for the fetus is that it has potential rights. A potential right, however, can never trump an actual right. Only beings with at least some of those abilities listed can have actual rights. The mother has them, the fetus does not.

13. This raises, of course, questions about our tendency to be partial to those closer to us in space and time, which also arise in many other contexts like famine relief, group affiliation, and obligations to future generations, the latter especially comes up in recent concerns over climate change and its impact. If there are reasons to think partiality objectionable, they apply here as elsewhere.

Consequently, a mother only has to consider her own rights when making a decision to carry a pregnancy to term. She may at any time terminate the process without violating anyone’s actual rights.

To have a right, Warren suggests in essence, one must have adequate mental development to articulate or indicate a claim to it. A normal adult has that, not a fetus. Other philosophers have made analogous arguments for why animals cannot have rights, in their case, not even potential ones.14

14. Tibor R. Machan, for instance, in “Do Animals Have Rights?” Public Affairs Quarterly, Vol. 5, No. 2 (Apr., 1991), 163-173.

But what of a neonate or even a small child? Warren admits infants and small children cannot make such claims. Does that mean they might be killed? In Warren’s view, they might.

A “no man’s land” of rights

Warren is comfortable with accepting the existence of this gray area: that period after birth but before the child can begin to articulate a sense of its own right to exist. During this period, in fact, there has always been widespread cultural reluctance to hold a mother who kills her infant as responsible for the death of her child as, say, we might the father who kills his infant offspring. It is a reluctance no one nowadays has an interest in trumpeting and it is not always explicitly recognized as such but this ancient idea still reveals itself, sometimes in unlikely places.15 A mother has, at least implicitly, extraordinary privileges over her child. Not unlimited privileges, not without some restriction, but always more privileges than any other human being, including the father.16

15. From the Wikipedia article on Infanticide: “In 2009, Texas state representative Jessica Farrar proposed legislation that would define infanticide as a distinct and lesser crime than homicide. Under the terms of the proposed legislation, if jurors concluded that a mother’s ’judgment was impaired as a result of the effects of giving birth or the effects of lactation following the birth,’ they would be allowed to convict her of the crime of infanticide, rather than murder. The maximum penalty for infanticide would be two years in prison. Farrar’s introduction of this bill prompted liberal bioethics scholar Jacob M. Appel to call her ’the bravest politician in America.’”
16. There is, of course, a rich history of the practice and distinctions to be made, such as that between neonaticide (killing very shortly after birth) and infanticide (the killing of older children). Women have usually done more of the former and men of the latter. Stressful conditions, needless to say, are the occasion. But whatever the conditions that effect the actual practice, our concern is with the relative moral leniency with which the practice is commonly viewed. It might show up in our culture in the different lengths of sentences given to convicted mothers and fathers, in closely similar situations. The fact that religions and belief systems have been compelled to enjoin against it is, even in pre-statistical times, evidence for its prevalence in the face of certain obvious counter expectations we have of parents, mothers, especially. See, again, the Wikipedia article on Infanticide.

The idea we may have that the father should have an equal role in the disposition of a child is a recent, and largely Western, legalistic development. Yet even major thinkers in that tradition, such as Hobbes and Kant,17 went out of their way to excuse maternal infanticide within certain admittedly vague limits. They recognized that a mother has special privileges over the life of her child—certainly before but also for some time after birth. Writing centuries ago, Hobbes and Kant were scarcely feminists by any stretch of interpretation yet both hinted that abortion may well be within a woman’s moral purview due to ancient law that predates modern civil institutions. More remarkably, to some degree infanticide, also, was taken to follow from the special relationship of being mother to the infant. (Regarding abortion, Hobbes put it colorfully, “The birth followes the belly.” No one else has “belly” in the game. The idea of “mother-right” is ancient. Its roots are sunk deep in primordial culture. Neither Kant nor Hobbes saw himself saying anything controversial in acknowledging this even if there is no formal place for it within their mature political and moral orders. I will return later to this theme.)

17. See Bianco Luno’s notes on Kant and Hobbes: “An affair of honor and the darkness of hell” and “Mommy has a license to kill, Kant said so.” On Hobbes and his view of paternal rights, see Carole Pateman, “’God Hath Ordained to Man a Helper’: Hobbes, Patriarchy and Conjugal Right” British Journal of Political Science Vol. 19, No. 4 (Oct., 1989), pp. 445-463.

Needless to say, their motives were different from those of modern feminists. It was not that a woman has a “right to choose,” as Hobbes and Kant saw it, but that nobody else has a right nearly so natural and intimate as hers to determine the fate of her child. Certainly, not society at large—except by legal fiat, but it is the morality of that fiat that concerns us here.

On a Kantian account, the young child—and, perforce, the fetus—is as yet far from qualified as full participant in the rational kingdom of ends that constitutes the moral community. (Warren and Kant are in agreement that far.) This though Kant had doubts about whether the mother was, as a woman, herself qualified either. But, consistently, he viewed the mother/child relationship as somewhat outside the moral law, or at least the moral law as it applied to men, i.e., the only full participants in the world where the morality he articulated purported to reign. He does speak of a certain honor peculiar to women, in this context, suggesting that she operates under a different moral aegis.18

18. “An affair of honor and the darkness of hell.” More about Kant on this below.

What should be remarked is that some modern feminists—those who argue by invoking rights as Warren does—have essentially adopted the dominant Western liberal tradition in which the notion of rights plays a crucial part. Curiously, though, this liberal tradition, which concocted the notion of “rights” (initially having much more to do with the distribution of property and power than with specifically human entitlement), is strikingly patriarchal in origin. This is evident in its pedestalization of individual liberty at the expense of every other human value—as has been noticed by other women thinkers. There are other philosophical traditions that are more native or at least friendlier to fundamentally feminist values than this one. As we shall see later, assuming that women have different values or at least place a different spin19 on ostensibly the same “values” they supposedly share with men, there are other ways to conceptualize the problem of abortion that do not involve talk of rights.

19. We address elsewhere, for example, how the notion of freedom or liberty means something significantly different for women from what it does for men.

I have been stressing the connection between abortion of a fetus and the killing of an infant or “pre-person” child. But the situation is different, one could argue, as Warren does, when the child is no longer physically connected to the mother’s body because her physical autonomy is no longer at stake, leaving open other possible dispositions of the child. The newborn or small child may not yet have rights on its own but at least one of its mother’s rights over it—this formerly-but-no-longer-part-of-her-body that may subsist on its own and which may or may not yet have rights conferred upon it by others (such as other family, society, etc.) who may have an interest—is not in play. The child is no longer part of her body—even if, in every other sense of possible connection between two beings, she may well claim the child as hers. And hers to do with as she wishes even though it is no longer strictly a part of her physical body.

Infanticide in the Ganges
Infanticide in the Ganges

But Warren leaves open the possibility that infanticide is still a moral option in adverse circumstances: extreme poverty, abuse, hopeless congenital illness, even limitations of her own ability to love, all that flesh may be heir to—in short, when, in the best judgment of the mother, the choice to let the child live may set the stage for its one day ruing the day it was born and condemning the one who let it happen. The weight of consequence involved here is monumental. And if her judgment is not to be respected with regard to the future prospects of this child, whose can we substitute for it? We are assuming society has largely already abandoned her—otherwise, she would not likely be in some of these straits in the first place. If the larger community has an interest apart from hers, it behooves it to show this by supporting her materially in every way conducive to the best outcome for the child. In so far as it has not done this, society has disqualified itself from having a moral opinion (whatever legal power it may have). If it still exercises an opinion, it does so on extra-moral grounds—i.e., because it can, not because it has moral right.

And we are inclined to think, again, that Hobbes and Kant—long dead men though they are—agreed.

The legality of infanticide, of course, is relatively clear in a given society. Its moral status at an early stage of child development is muddier, and this is what creates a moral space in which Warren may articulate with a certain amount of plausibility a personhood standard that leaves young children vulnerable.

Warren does not think that a fetus is valueless, of course. But it can still be asked of its value: compared to what? The value of a fetus clearly does not outshine the fully invested right of its still physically connected mother to make choices regarding her own life.

The striking thing about Warren’s position is that it appears to countenance something relatively “unspeakable”—infanticide—in the interest of insuring a very personal and individual right: the supreme right of a woman to control what happens within her body. If autonomy so defined is not a supreme right, what is?20

20. I think this is how almost any woman, natively, would begin to understand autonomy. Not so with masculine conceptual practice. There is a logic of possession (not so much autonomy) articulated in Locke that may apply, however. Locke takes the body as the paradigm possession, essentially inalienable in a way all other possessions are not. See my discussion on Locke [in prep] and the body as paradigm possession.

This signals a severe strain if not a breakdown of the rights tradition she has taken over from the dominant patriarchal culture. Without saying more, our intuitions about the wrongness of infanticide are at stake. We will have more to say about Warren and the rights tradition. In particular, we will explore Kant’s apparently radical way out which simply excuses women altogether from the subject of morality so whatever they do to clear non-persons it is not our business as bystanders to judge with the same kind of surety that applies elsewhere in morality.

The famous violinist

In an influential 1971 article,21 Judith Jarvis Thompson takes a different tack on the subject of abortion. She also operates within the same rights tradition as Warren, but she sidesteps the question of whether the fetus is or is not a person in order to focus on the question of how persons (adult or otherwise) acquire rights in the first place and what that entails for the right to abort. She suggests we don’t acquire rights over another just because of who or what we are. Rather we get them in virtue of a prior understanding such as a promise or contract, implied or explicit. We gather she is unsure about the ontological status of the fetus and would prefer to work out a different argument that protects the rights she thinks a pregnant woman has vis-à-vis the fetus even if it is a person. This leads her ultimately, however, to draw the line more conservatively on what is morally permissible than Warren.

21. Judith Jarvis Thomson, “A Defense of Abortion,” Philosophy & Public Affairs, vol. 1, no. 1 (Fall 1971).

She starts her argument by assuming the fetus is a person. Even if it is a person, she asks, does that mean it can’t be aborted? Her answer is mostly no and sometimes yes.

Suppose a famous violinist is desperately in need of being hooked up to someone else’s kidneys to stay alive for nine months. Suppose you are kidnapped and hooked up to the violinist by raving fans. The violinist has no role in the choice of you as kidnap victim, but you were the one chosen by his fans. You wake up connected to the violinist. Suppose that now it is possible for you to disconnect yourself, if you choose, from the violinist. He would die, of course, if you did. Do you have a right to disconnect yourself? Thompson asks.

The violinist needs access to your body to live. You were not asked to volunteer it. Does the violinist, who is, no question, a full fledged person with the same rights to live as anybody, have a moral right to force you to let him stay connected to you?

Thompson concludes the answer is no. The moral right the violinist has to live is no greater than your moral right to control access to your body. You gave no one access to it so no one has acquired a right to it. Morally speaking, you may disconnect yourself, in this case, at any point.

Needless to say, it would be generous of you to let the innocent violinist have access to your body and let him live, but that would be an act of kindness that is over and above what can be morally required of anybody.

The analogy, here, is of course with rape. The fetus is blameless, possibly valued by others—perhaps society at large, and being supposed a person (in Thompson’s argument) it has a right to live like any other person, but, like others with a right to live, it does not have the right to take away anyone else’s right to control access to their body, not even if it means death for the dependent person or fetus. (Notice Thompson’s analogy is sex-blind: the person kidnapped might be male.) Thompson clearly implies that a woman has a right to abort in the case of rape.

But there are other somewhat more controversial cases to consider.

People seeds

Next, Thompson asks us to imagine that there are people seeds floating freely in the air that, should they enter your house and settle on your carpet, would sprout into people and become your responsibility. Let’s say this can be prevented from happening by having specials filters at your windows and doors. Further suppose you have been responsible enough to have those filters in place. But somehow a seed gets through to your carpet and sprouts. May you destroy this person? Again, assume once sprouted, these are people with rights, including that to live.

Thompson says, yes, you may destroy this unwanted person if that is the only way for them to vacate your space now. As long as you take reasonable precautions to prevent the sprouting from happening, you have not given up any rights not to share your abode with anyone else. As before, you may choose to take on the responsibility but this new person has not gained any rights over your space. You did not volunteer your space.

Here, Thompson has in mind unwanted pregnancy against which reasonable precautions were taken. It might be said the precautions were not stringent enough. Someone might say the way to have prevented this was not to have windows and doors so as never to risk this happening. Someone might say that the way to absolutely prevent any possibility of injuring or killing someone with your automobile is never to venture out in it. Would that be a reasonable demand? Most would say no. Apparently, we are perfectly comfortable with killing vast numbers of innocent people each year rather than restrict our use of motorized vehicles. Thompson thinks that sexual intercourse is a normal and healthy part of an adult person’s life. Nothing we do is without risk and we cannot demand abstinence as the price of avoiding any possibility of persons being killed.

When rights fall flat

All along Thompson has assumed a fetus is a person capable of having or being invested with rights such as the right to live. And still, up to this point in her analogies, she believes the fetus may be destroyed if its existence threatens the rights of the mother. But there are two important situations yet that occasion abortion. The case where reasonable precautions were not taken. And the case where the right to exist was openly granted the fetus then retracted by the mother.

The second of these two is clear cut. Thompson’s answer is no: an abortion is wrong in that case. A woman who willingly gets pregnant essentially confers a right to live upon the fetus. She has made a solemn promise to a person about a serious matter—about as serious as possible. She cannot decide after the fact that a trip to Europe would be more fun just now than carrying a fetus to term. A fetus is a person with serious interests at stake. Interests this serious cannot be taken lightly.

The assumption that the fetus is a person from the start now has the effect that the fetus can be the recipient of a promise and be harmed if the promise is broken. It is straightforwardly immoral to break a promise. Thompson here parts company with Warren who does not view a fetus as a person with the possibility of having rights or having promises made to it.

Finally, there is the case of careless pregnancy. Here, the case is more difficult because there are many degrees of carelessness which have to be balanced with other human exigencies. Among all the projects that a human being may undertake, that of bringing a person into being is second to none in gravity and one should come to it with all the wisdom imaginable. But nature thinks otherwise. Should a young person really be held to the same standards of moral behavior as a fully mature one? Just when does morality have a right to bear down so hard on us?

This is the background against which moral qualms operate: It is no accident that nature makes our bodies mature much faster than our minds. The imperative to reproduce is more important than either the survival of any given individual or the wisdom of it. Nature could not care less if this one fetus is aborted. There will be many more. Embryos are thrown against the wall of the uterus to see which sticks, as spermatozoa were earlier against an ovum. Nature couldn’t care less whether, having been brought to term, the fetus, or what comes of it, will be in or causes any amount of misery. Misery and death mean nothing. Only the numbers matter and even those not for long.

Against this background we insert our scruples and the question becomes when should we start caring and demand that others care? There is no reason to think that one moment pre-persons or persons don’t count and the next suddenly they do. Or that as agents one moment we are innocent and guilty of murder the next. The valuation process is gradual and invariably lags behind nature’s rush to see things repeat themselves. There is evolutionary advantage in being stupid about sex, in delaying scruples until the damage is done.

This gray area is morally ugly for anyone like Thompson who entertains the personhood of the fetus and trusts the rights-conferring power of our words and actions because it requires that something be said about how we acquire deep knowledge of our rights-conferring power. We need to have experienced the enormity of making and breaking promises. The gray area may in fact describe the condition in which most morally problematic cases of abortion actually happen. And this is exactly where Thompson’s analogies fail to give clear guidance.

But Thompson helps us delimit the problem area, setting the scene for another approach that focuses, not on scripts about abstract rights or somewhat arbitrary castings of personhood, but on character development.

Winging it

Character development is the focus of virtue theory. Rosalind Hursthouse offers a virtue theorist’s account of the stakes in abortion22 which I will sketch now with a few comments.

22. Rosalind Hursthouse, “Virtue Theory and Abortion,” Philosophy and Public Affairs, vol. 20, issue 3 (Summer, 1991), 223-246.

Virtue theory is much older than rights theory. Aristotle asked what the good of thing was and then went on to ask it, specifically, of human beings. The good of a thing is closely tied to its highest function, what it excels at. After eliminating things that we shared with non-humans he fixed on our peculiar ability to set rational goals and arrange our lives to achieve them as the particular good of our kind. There may be more than one rational goal but among them wisdom, he thought, was the highest. Wisdom here seems to mean the ability to contemplate and judge things dispassionately. That can only happen after one has tamed one’s passions. Among the supposed realizations of wisdom is that our proper earthly goal is to “flourish.” To flourish is not the same as living a life of painless pleasure or happiness. Flourishing is what happens when we exercise what is unique to us, our reason, in the interest of achieving a stable balance that would ultimately allow us to reach wisdom. Wisdom is regarding and judging dispassionately the quality of our lives as measured with what is most excellent about us: our rational capability. Morality is that capability in action. A modicum of peace and material comfort is requisite, however, otherwise we will not be in the position to appreciate and value the luxury of wisdom. But happiness is never per se the goal. Out of our will guided by reason in long contention with our passions and appetites comes virtue—the starting point for wisdom. And out of that the only happiness worthy of the kind of being we are.

Wisdom is something attained, if at all, near the end of life. The better part of one’s life is spent in training to be virtuous which is a state which must precede the possibility of wisdom. Aristotle said young persons cannot be virtuous (still less “wise”) because, although they may perform virtuous acts, they still struggle in doing so. True virtue comes only when the right action follows almost second nature, when it becomes habit. Nevertheless, one must start the long process of becoming virtuous by practicing virtuous acts as a young person.

But what is a virtuous act? In broad outlines, we have already said that it is one that is conducive to flourishing, but in practice what that means is not easy for a novice to discern. Aristotle says you initially get the idea of what it is right to do from observing and emulating the actions of those in your community who are regarded as paragons of virtue. You adopt them as role models. You do as they do. Never mind that you may not fully understand why. With much effort on your part and the fullness of time, you are led to believe you will one day understand and, when that happens, you will be well on your way to being virtuous rather than just doing virtuous acts.

A virtue theorist conceives of ethics as mainly about the development of virtuous character. So the good for the virtue theorist lies not in the act itself but in what the act says about or does to the actor. Except perhaps to fail to develop one’s character when one might have, absolute wrongs are scarcely categorical for the virtue theorist.

So there are not going to be many useful absolute rights and wrongs in virtue theory as there are in other moral theories. You latch on to a good role model and then wing it. (Needless to say, there are all kinds of worries we might have about this formula for being good but we leave them for another time.)

What does virtue theory say about abortion? Hursthouse tries to give an answer:

To begin, forget personhood—or when it begins, and forget rights—or how they come into being. For the virtue theorist, whether what you do is right or wrong is going to be determined by the kind of person you are or at least want to be, not abstract definitions and suspiciously conferred privileges.

What would a rational, decent, but all-too-human, woman do, faced with an unwanted pregnancy? Such a woman would think really hard about it, consider every angle: the life that would be discarded, its quality; the ability of its mother to do the right thing by this new life and to provide for it and to be happy in doing so; the availability of help from others, beginning, of course, with the father; the full and future impact on the person uniquely responsible for how this new life begins, that is, the mother herself; the impact on others in the community; the message the choice will send; and so forth. Everything is in play: natural and personal imperative, family and societal pressure, belief systems, self-worth, the dreams, the happiness and fulfillment of every one involved. And in, at least, some attenuated sense everyone is involved, but definitely some more than others. And some now and some later. And since we are addressing the morality of an act, whether to confer or abort life, most important of all is the good of the actor: the mother. (The fetus, person or not, is not a moral actor here.) How is what she is going to do going to affect her virtue? There is not going to be a simple answer to what she should or should not do. All will depend on how she handles the decision and consequences in her circumstances.

Let’s pause to appreciate that this is an incredibly difficult situation for any human being, even the wisest of us, let alone for a young person. It is the closest most individuals will ever come to being in the moral position a state is (or should be) in when it considers whether to declare war.23

23. The responsibility to formally declare is routinely shirked by governments, it appears, these days, in favor of international “police actions.” The moral enormity of the act is thereby obfuscated. The same happens when “legal actions” are taken to apply to abortion. There is clearly a sense in which laws restricting abortion are actually immoral because they attempt to preclude opportunities for virtuous action in favor of enforcing prima facie virtuous behavior. Something similar happens when we hear “mistakes were made” instead of “I [or some unambiguous person or persons] made a mistake.”

In one case, aborting the child will be a bad choice. In another, the only one that makes any sense. In many cases, there will be no deciding but a decision will be made. No decision is a decision. Virtue comes into play in how that decision is made and, once made, how it is carried out. That is how we know whether the act of aborting a fetus is right or wrong. We may know in advance. We may not know until later. It is entirely possible there may never be a clear answer.

In virtue theory, no actor acts in isolation. There is a community that creates the values that the actor will have to juggle. But there is no opportunity to practice virtue if the individual cannot choose among them.

I think I have given some indication of how Hursthouse addresses the real abortion problem. The concrete one. The answer is that there is no one general answer as to whether abortion is moral.

In the course of her discussion, Hursthouse makes a passing comment that is of great interest to me. She says that “nature bears harder on women.” The implication is that abortion is prima facie wrong but in a special way. It is a revealing admission that I will make much of later.

But before I conclude with my own view, I want to consider one more interesting position—this time by a man. Opinions have sexes and sex matters. This one is at the other end of the moral autism spectrum from virtue theory.

Life as a glass of wine

Most of us are familiar with the religious arguments for the sanctity of life and against abortion. I will not be discussing them directly here beyond the argument form presented at the beginning.24 It may come as a surprise to those set on the right of a woman to abort her fetus to learn that there is a formidable argument against abortion that is not founded on religious doctrine. Don Marquis25 offers a way of looking at the destruction of a fetus that shows it to be among the very worst things we might do. And his argument depends only on assumptions that a hedonic moral philosophy would espouse.

24. See note 9 on Noonan.
25. Don Marquis, “Why Abortion is Immoral,” The Journal of Philosophy, vol. 86, issue 4 (April, 1989), 183-202.

Life per se is not sacred in Marquis’ argument. Life is just the most wonderful thing we can imagine because anything that could possibly be wonderful is always contained in it. Nothing that has value exists outside of life. It is the container for all that is good. Marquis offers a rather pure utilitarian argument. A utilitarian believes that pleasure, or at least the minimization of pain, is the ultimate standard of what is good or desirable. More pleasure is better than less and either is better than pain or no experience at all.

Wine glass breaking
Wine glass breaking

Marquis comes to his abortion view by considering what makes taking away any life a bad thing. To take someone’s life is to rob them of a future life like ours. We all value the continuity of our lives because we expect—or most of us are in a position to hope—that tomorrow and the days after will bring us more opportunities to experience some measure of gratification. Whatever else it might bring, we focus on this bright side and that is what gives value to a future like ours. A “future life like ours” becomes a term of art for Marquis: a veritable technical term. It is the thing that contains value, the only thing that can, and its loss is the ultimate calamity that might befall us. (An afterlife plays no role in this calculus.)

We might think of life as a glass26 filled with liquid value. Break the glass and it’s all over.

26. A measuring cup with gradations is perhaps a better image than a glass of wine. Tom Regan uses a similar analogy to characterize utilitarianism: “…a cup contains different liquids, sometimes sweet, sometimes bitter, sometimes a mix of the two. What has value are the liquids: the sweeter the better, the bitterer the worse. The cup, the container, has no value. It is what goes into it, not what they go into, that has value. For the utilitarian, you and I are like the cup: we have no value as individuals and thus no equal value. What has value is what goes into us, what we serve as receptacles for: our feelings of satisfaction have positive value, our feelings of frustration negative value.” From In Defense of Animals, edited by Peter Singer (Oxford: Basil Blackwell, Inc., 1985), pp.13-26; a selection online. Regan, of course, is thinking of classic Benthamite utility as measured in pleasures and pains. Marquis seems to have a purer form of utility in mind than even Bentham’s, even a meta-utility. For him, it is the cup or vessel that has the value because it is the sine qua non for liquids/experience of any kind, sweet or bitter. Peter Singer comes out in a different place on abortion; but in Singer’s general insistence on the having of interests, which requires a minimal consciousness, as requisite for moral consideration, there is a valuing of consciousness. This valuing of consciousness is, it seems, a Kantian importation. Singer’s utilitarianism is compromised with extraneous values. Marquis’s is by comparison fascinatingly pure.

So what makes killing a human being wrong is the fact that you rob her or him of a future like ours. There will cease to be anything to contain value for them. But utilitarians measure value. More is always better. Kill a middle-aged adult and you rob them of half their life. Their glass was still half full when broken. Killing a young adult is worse. Their glass was mostly full. Killing an elderly person is less of a tragedy. Their glass was nearly empty anyway. A new born’s is full almost to the rim. And so killing an infant is up there among the baddest things. (Actually, even non-utilitarians sometimes talk this way.)

But not quite the baddest thing. There is one kind of killing that is worse than any of these. The one who has the most to lose, whose glass is overfull or as full as it is ever going to be is that of the unborn fetus whose entire life, even birth, lies ahead of it: the worst thing of all is to kill a fetus. This is the worst imaginable killing for one who believes that the principle value of life is the quantity of it left you.

Notice that this conclusion does not presume anything about the personhood of the fetus. You can call the fetus what you want but the fact is, in the normal course of events, there will be a “future life like ours” in store for it. And a future life like that is all that contains, or has ever contained, value. That, and that alone, is all it takes to make the destruction of a fetus bad.

Notice also that in any contest of “life assets” between the mother and the fetus, the fetus wins hands down. The mother has already consumed a respectable share of her life. The fetus next to none at all. If it is only one or the other who may live, it should be the fetus.

Finally, notice that it is not that the fetus has any special right to live that the mother doesn’t. It is simply that the fetus has more life to live, period. “Rights,” for a consequentialist, do not have significance unless they can be shown to maximize, in this case, life: the sheer quantity of it, irrespective of anyone’s share in particular. One might ask if quality counts. And the answer might be yes, but again other things being equal, there is no reason to think that the quality of the life in store for the fetus shall be any less than that in store for the remainder of its mother’s life. (If you believe in “progress”—the fetus will enjoy a better, as well as longer, life.) But quality of life is not a big issue for Marquis. If we knew, for instance, that the life of the fetus would be “solitary, poor, nasty, brutish and short,” (as Hobbes said of life in the state of nature)—an unthinkable, holy misery, whose only saving grace is that it would be severely truncated, we might draw a conclusion in favor of the mother, who still has wine in her glass, after all, not poison (as in the case of a fetus with severely debilitating deformities). So Marquis grants this concession to the mother. But that doesn’t describe the typical case of abortion.

Marquis argues that in the typical case it is very wrong to destroy a fetus—more wrong, in fact, than killing an adult.

In defense of Marquis, intuitively, at least, many people much of the time do talk and behave as though children were treasures greater than anything else we might care to compare them with. Surely a part of that sentiment must derive from an appreciation of the magnitude of their futures relative to that of their parents. In a moment of extreme duress, a mother or father will put their life in harm’s way to save, if possible, their child’s. A parent may come to see their children as their most valuable possession, bar none, even the parent’s own life. Something like the logic Marquis works out must be operating here.27

27. Interpreted narrowly, as Marquis himself seems to invite, his argument only gestures at the presumptive wrongness of killing. Presumptive wrongness does not rule out that there may be overriding considerations that cut the other way, nor does it preclude collateral reasons for finding any kind of killing wrong (so my reductio above about killing old people may not quite follow, but my point is that avoiding the reductio requires the importation of extra-utilitarian considerations). Marquis shows little patience with Kantian casuistry. His analysis offers undeniable insight into common intuitions about why killing is held in such low regard. But, as a convincing argument against abortion, his argument illustrates the limitations of utility as a measure of anything ultimate. I will say more shortly about this.

One qualm with Marquis’s moral logic, however, is obvious: do people, like perishable goods, really lose value the longer they are exposed to air? Is a toddler in diapers really more valuable than an elder with a cane? Is the fetus really the most precious of all? And is this simply in virtue of the age difference, the fact that one has a full glass and the other’s is nearly empty?

There are venerable moral theories, both Eastern and Western, that would reverse Marquis’s ranking. In Aristotle’s view, for example, which we discussed above, young people (not to mention infants and fetuses) barely count as moral beings.28 In theories like Kant’s (from which rights theories like Warren’s and Thompson’s in part derive), the young, rationally immature, do not count at all except vicariously through the respect we owe the rational adults to whom they may matter. (And, indeed, the young may matter in some degree to the affections of almost anyone.) In any theory that prizes the exercise of reason as a condition of ethical behavior, fetuses and children will not rank high because of the lack of this innate or situational feature. (And if it is the capability of being rationally responsible that counts, it is only in degree that fetuses and small children differ: that is to say, not much.)

28. Marquis considers himself a kind of Aristotelian “animalist.” Biological function or discernible teleology seem to be the source of value in living things. Yet, Aristotle’s explicit reluctance to place moral value in youth is very un-Marquisian.

But in Marquis’s account, the “old fart” is just about as valuable as the phrase implies. A lifetime of accumulated experience and wisdom does not add value to the person.29 Rather, it indicates that the end is near and if we bother to care for such people it is because this caring must bring some joy or relief to others, assuming they exist, who find that it adds something to their lives present and future. In and for themselves, aging persons spiral in on worthlessness.

29. Though the richness of the lives of the old may add value to future life, theirs or that of others—what is left of it, the likelihood that “experience and wisdom” may have salutary consequences for someone’s future life may certainly factor in. But that likelihood clearly diminishes with age as our time to enjoy those consequences runs out. It is not clear that the “experience and wisdom” of a woman during her childbearing years is going to trump the potentially greater quantity of it in store for the fetus. There is some reason to think the “experience and wisdom” the fetus will have one day at the mother’s age will exceed hers now.

If this sounds cold-hearted, it is because we live in a culture that indulges warmth of heart (rather selectively, of course). It is important to notice, however, that not all cultures have or have had this luxury. Consider the Inuit treatment of their decrepit elders: the rational thing to do may be quite icy.30 There is nothing intrinsically moral about being warm-hearted, at least not to a utilitarian.31

30. Early missionaries tell of those too frail to hold their own among the rigors of Inuit nomadic life being deliberately stranded on ice floes and left to die. But senilicide is hardly unique to Inuit culture. It may be rationally defensible in any culture in sufficiently dire physical conditions.
31. We note David Hume supplemented his utilitarianism with a certain capability for fellow-feeling. More about this later.

Marquis is not being particularly sentimental about children, babies, and fetuses. It just so happens that for a moral theory that values in a basic way opportunities for non-hellish, conscious experiences in some degree, these are the most ample containers of such opportunities.

The deeper problem with Marquis’s account and why it is included among the views discussed here lies elsewhere. I consider Marquis’s account a telling instance of what is wrong with utilitarian views generally. To their credit, utilitarians are very good at biting the bullet when it comes to consequences.32 Often what they see as an instance of modus ponens (as in “if this, then that; this; so there”), turns out to be a reductio ad absurdum or what happens when you give an idea enough rope. But they sometimes succeed so well at making their point that they force those of us who may have initially shared their premises to re-think them rather than accept the conclusion. This is, of course, not to say that utilitarians inevitably reach the wrong moral conclusion; only that the field of their starting considerations is always too narrow—for beings like us.33

32. Peter Singer’s work is famously brave in this regard.
33. Moral philosophers, to the extent they are right, are quixotic as it is—utilitarians unabashedly so.

The real problem with a view on abortion like Marquis’s points our discussion in another direction.

Intro |  Part I  |  Part II 

Posted by luno in philosophy and sex, motherhood, abortion, sex differences (Saturday June 30, 2012 at 8:43 pm)

No comments for Abortion, Sex, and the Limits of Morality - Part I

No comments yet.

Sorry, the comment form is closed at this time.

Creative Commons License