The Permissibility of Abortion

“Does Abortion violate the rights of the fetus?” There are three popular arguments people often invoke in defending or rejecting the permissibility of aborting the fetus. The first and most popular argument – with the notable exception of Thomson (1971) and Little (2005) – emphasizes ‘personhood’ as the main premise. For the anti abortionist, the fetus is a person and therefore has full moral status, equal to that of the reader or myself. Unsurprisingly, the pro-choice view denies personhood status to the fetus; and therefore do not accord the fetus equal moral status as an adult (or a child for that matter). The second argument targets the leap, or inference made from the premise ‘persons have a right to life’, to the conclusion ‘abortion is morally impermissible’. The final argument is more recent and refreshing in its approach, in that it avoids the status of personhood and, supposedly ‘rights’, by focusing on the fetus’s loss of a valuable ‘future like ours’ (Marquis, 1989). The argument from ‘personhood’ will not be the focus of this paper, as attempting to distill the semantic clarity of ‘person’ is a murky territory that lends itself to arbitrary distinctions in the timeline of fetal development. In addition, preoccupying oneself with definition – as necessary as it may be to oil the cogs of the debate (see Warren, 1996) – runs the risk of stalling the progress of the debate, to a point that it derails one from its proper aims: from trying to establish whether abortion is a violation of the fetus’s rights, to establishing what is or is not a person. The focus of this paper will instead assess the rights of the fetus by looking at the second and third arguments. I will argue that although the fetus has limited rights, abortion does not violate those rights, and is therefore morally permissible. The extreme view on anti-abortion argues that a fetus is a human being, and since human beings have a right to life, aborting a fetus is morally impermissible. Some people also add that a fetus is a life, and taking away life is akin to murder (Little, 2005). This view then accords the fetus with equal rights and moral status as an adult, which includes the right not to be killed and therefore a right to life. But can this really be the case? Are the rights of the woman and the fetus to be treated equally based purely on the fact that they both qualify as ‘persons’ and are a form of ‘life’? To take Judith Thomson’s (1971) line of argument, even if we grant that a fetus is a person, how do we deduce that then, a fetus must have a right to life, which also trumps that of the mother’s, and entitles it to the continued use of the mother’s body in order to guarantee its own life? Such questions are often overlooked, especially if ‘personhood’ is stressed excessively, when in fact, we should be focusing on how we get the conclusion ‘abortion is morally impermissible/abortion is prima facie wrong’ from the premise ‘a fetus is a person’. The dialectic of the latter approach allows us to investigate important issues of obligation, liberty rights, claim rights and many other social and economic factors which play a pivotal role in determining the conditions under which, the killing or letting die of a person can be considered moral or immoral. Don Marquis (1989) recognized the weakness of the ‘personhood’ argument, and argued instead, that abortion is prima facie wrong on the grounds that a fetus is denied of ‘a future like ours’. He concedes that it is not an absolute rule, and that extenuating circumstances may absolve one’s obligation to carry the pregnancy through. The ‘future like ours’ argument is a refreshing approach to the conclusion ‘abortion is morally impermissible’ because it does not rely on biological or psychological distinctions of personhood. Despite this, there are still problems for Marquis’s argument. The first problem for the ‘future like ours’ argument is the equivocation of term ‘loss’. Marquis states: “The loss of one's life is one of the greatest losses one can suffer… Therefore, killing someone is wrong, primarily because the killing inflicts (one of) the greatest possible losses on the victim” (Marquis, 1989, p. 189). In the many context sensitive meanings of ‘loss’, some presuppose an entitlement to the thing that is being lost, while others do not. If Miles loses a race against Thelonious, it means that Miles loses the valuable trophy which would have meant a lot to him. In this case, despite there a being a loss for Miles, he has no entitlement or moral right to the trophy. Sinnott (1999) terms this a ‘neutral loss’, which means the loser has no moral right over the thing that has been lost. Contrastingly, with a ‘moral loss’, the loser has a moral right to the means of obtaining what he lost. The question is, does a fetus suffer a ‘moral loss’ of ‘a future like ours’? And does Marquis consistently use the one meaning of ‘loss’ throughout his argument? Sinnott believes not. Marquis’s argument, roughly stated is: P1 It is morally wrong to cause anything the loss of a valuable future (except in extreme circumstances) P2 A fetus has a valuable future like ours P3 Abortion causes the fetus the loss of a valuable future like ours C Therefore, abortion is prima facie morally wrong (except in extreme circumstances) (Marquis, 1989) Suppose on one reading, we take it that Marquis means neutral loss from P1 to P3. P3 as Marquis says is “obvious” (Sinnott, 1999, p. 62-63) and so we can take it he means neutral loss. If we take P1 to be neutral, it is not clear why it is morally wrong to cause a neutral loss (P3). On the second reading, where P1 to P3 is a moral loss, P3 cannot be sustained without having already established why the fetus has a moral right to the necessary means to its future; to do so would beg the question. Marquis’s argument then trades on the looseness of the term ‘loss’, which can make one premise clearly true, but does not entail the following (or preceding) premise to be true. And despite trying to avoid issues over rights, Marquis’s equivocation only sheds light on the necessity for a discussion on liberty rights and claim rights. I will return to a more fine-grained analysis of rights in relation to P1 later. For now, I would like to make two further comments about Marquis’s paper before proceeding to other gaps in the anti abortionist argument. The second premise (P2) assumes that the future of a fetus is valuable in and of itself regardless of the possible outcomes. The fetus may one day grow up to be a very successful entrepreneur, whose riches are benevolently donated to support his local community; or he could grow up to live in a very abusive household, with little career prospects and a drug dependency problem. For Marquis, the mere fact that someone is being deprived of a future that could be like ours is enough to deem it morally wrong. But evaluating the possible trajectories are necessary variables one must consider when establishing the value of a future like ours. Can we say that depriving someone of his or her future possibilities is in itself morally wrong? I take it that such a view is a facile reading on the issue, for many women who choose to abort do so because they feel as though they are socially, psychologically or economically not prepared to take on the task of motherhood. Surely it would not be unreasonable to abort the fetus if you foresaw that its trajectory was that of the latter example mentioned above. If the woman’s circumstances are an environment that is anything short of minimally conducive to rearing a child – who has the opportunity to experience a future like ours – then, should that not be a factor which would alter the prospect of a future like ours? That is, presuming Marquis means a minimally flourishing future like ours. Depriving something of its future possibilities should not be treated in the same way as depriving something of its future actualities. My final point on Marquis is the exceptions to the argument. This objection does not undermine his argument; rather it probes the scope of his argument. Marquis states, “Of course, this value of a future-like-ours argument, if sound, shows only that abortion is prima facie wrong, not that it is wrong in any and all circumstances” (Marquis, 1989, p. 194). Although he takes care to omit the extreme cases, there is little discussion of what these cases are. Perhaps in instances of rape, or where the woman’s life is in danger it could be considered extreme. But what is less clear are factors that may grant permissibility based on social burdens, identity, physical intimacy (Little, 2005), or life prospects and mental health concerns (English, 1975). Are these considered extreme? Little (2005) believes these issues certainly carry considerable purchase in weighing up the rights of the fetus and mother, and therefore the permissibility of abortion. As previously mentioned, the first premise of the anti abortion argument is that ‘the fetus is a person’, and in order to avoid the quagmire of infinite semantic regression, the first premise has been granted. This leaves the question of how we arrive at the conclusion that aborting the fetus is morally impermissible, from the second premise ‘a person has the right to life’. To say that a fetus has a right to life and an adult – like the reader or myself – has a right to life seem to carry distinct senses with considerable pragmatic luggage involved. This distinction though, is trivialized in the anti abortionist argument; and what’s more, it treats the right to life as though it were relatively unproblematic. In this light, the anti abortionist seems to take a boundless leap from premise two to its conclusion, leaving behind much contextual information about the circumstances under which someone’s rights obtain, when that right is violated, and the relative weighting of the rights of the people involved. The anti-abortionist argument is a stringent and absolute rule which can neither account for, nor be sensitive to the vicissitudes a pregnant woman may find herself in. All these factors are necessary considerations for the evaluation of when and where the killing of a person is morally permissible or impermissible. The anti-abortionist’s argument is a non sequitur because the right to life is incorrectly assumed to entail a right to all necessities to sustain that life. This assumption is born out of a confused and conflated notion of rights. It ignores an important distinction between liberty rights and claim rights: a liberty right entails freedom for the right-holder, while a claim right entails responsibilities on others regarding the right-holder. I have a liberty right to go bike riding around Centennial Park, and that right is also protected by a circle of claim rights against others, that they don’t maliciously poke a stick in my bicycle spokes so as to cause to me topple over. Can we say the same distillation of rights applies to someone’s right to life? Certainly everyone, in the positive sense has a natural right to life, but the way the anti abortionists have characterized it, it seems that a right to life also entails a right to the guaranteed use of someone else’s body – the woman’s body. After all, the fetus relies on the woman’s organs in order to sustain life, so the question is does the fetus have a claim right against the woman to the continued use of her body? This distinction is captured most accurately in Thomson’s thought experiment ‘The violinist’. We are to imagine ourselves waking up one day back to back with a violinist. The violinist has contracted a fatal kidney ailment, and after an extensive search through medical records, in turns out that you are the only person with the right blood type. Without your permission, while you were sleeping, the doctors plugged the violinist’s circulatory system to yours. The violinist now, is on the path to recovery, but unplugging him would be to kill him (Thomson, 1971, p. 48-49). The violinist is no doubt innocent, and unplugging yourself would cause you to end his life. But does he have a right to the continued use of your kidneys? The relationship between the violinist and your kidney is akin to that of the fetus and the woman’s body respectively. This analogy though, is not to suggest that people do not have a right to life, rather a right to life only guarantees life in the positive sense and not whatever you need in order to sustain it. Now, if the violinist were only asking for an hours worth of your kidney, then any good Samaritan, or even a mildly good Samaritan should come to his aid and provide the necessities to bring his condition back to normal. This scenario illustrates what I ought to do to sustain the violinist’s life, but on no reading can we then jump to the conclusion that he now has a right to my kidneys. It would be awfully kind of me to do so, but I am in no way obliged to help, or owe that duty to him; i.e. he does not have a claim right against me that I come to his aid. Perhaps this case paints a crude picture on the notion of rights, but if we look at the demands a fetus makes on a woman’s body, then it becomes clearer why the anti-abortionist’s ostensible right cannot be derived from an ought. Another aspect of the anti abortionist argument which often misconstrues the nature of rights, stems from a distorted understanding of gestation. Taking a life is no doubt a serious concern and should not be taken lightly, but to label abortion as murder is to ignore the stages of prenatal development. The fetus is not a completely separate entity whose development happens independently of the woman; it is not a passive process whereby the fetus occupies a box in a woman’s house, and by some divine sleight of hand, nine months later the egg timer rings and lo, we have a newborn baby. Gestation is a zero sum situation, where the proliferation of one life comes at the cost of another. A woman who is gestating is at the mercy of the fetus, with every aspect of her life being shaped by it. As Little suggests, “… gestation belongs to the woman” (Little, 2005, p. 5) because the woman is providing all the life supporting nourishment from food, oxygen to essential vitamins. Taking away the life support is only to take away something which the fetus would not have had without a woman’s aid in the first place. To use a novel phrase from Bob Dylan, “ When you got nothing, you got nothing to lose. The question of right or entitlement against death is then a moot point, especially when the only person who can sustain that life is the mother and nobody else. The crucial distinction which I have tried to point out in this paper, is that there are different forms of killing, and the difference in circumstance should dictate whether the ending of a life should be considered moral or immoral. These circumstances are illuminated by the distinction of liberty rights and claim rights which anti abortionist movements fail to delineate. The removal of assistance to sustain life is not a right that the fetus has against the woman, so there is no violation of rights. Pulling the plug on the fetus, so to speak, is not the same category of killing as that of impaling someone in the head with an ice pick. These two types of killings are unambiguously distinct, but the anti abortionist’s stringent and absolutist argument fails to appreciate the reality of the complexities of killing, and the separate case of letting die. Cited Works English, J. (1975). Abortion and the Concept of a Person. Canadian Journal of Philosophy, 5 (2), 233-243. Retrieved from http://www.tandfonline.com/doi/pdf/10.1080/00455091.1975.10716109 Little, M. (2005). Course reader. PHIL2617 Marquis, D. (1989). Why Abortion is Immoral. The Journal of Philosophy, 86 (4), 183-202. Retrieved from http://www.jstor.org/stable/2026961 Sinnott, W.A. (1999). You Can’t Lose What You Ain’t Never Had. Philosophical Studies, 96 (1), 59-72. Retrieved from http://link.springer.com/article/10.1023%2FA%3A1004224102333 Thomson, J.J. (1971). A Defense of Abortion. Philosophy and Public Affairs, 1 (1), 47-66. Retrieved from http://www.jstor.org/stable/2265091 Warren, M.A. (1996). On the Moral and Legal Status of Abortion. Biomedical Ethics, 4, 434-440. Retrieved from http://instruct.westvalley.edu/lafave/warren_article.html 311 274 447 Tatsuki Kamekawa PHIL2617 1