This year, nine U.S. states have passed legislation that bans early abortions in an attempt to provoke a challenge to the abortion rights protected by the 1973 Supreme Court Roe v. Wade decision.
According to the Guttmacher Institute,
The current U.S. Supreme Court standard holds that states may prohibit abortion after fetal viability so long as there are exceptions for the life and health (both physical and mental) of the woman. Under this legal standard, viability—which can range from 24 to 28 weeks after the start of the woman’s last menstrual period (LMP)—must be determined on an individual basis, and determinations of both fetal viability and the woman’s health are at the discretion of the patient’s physician. In addition, states may not require that additional physicians confirm an attending physician’s judgment that the woman’s life or health is at risk in cases of medical emergency.
In light of this recent legislative activity, the political intensity of the subject, and the complex moral and legal questions surrounding it, I took the advice of a few readers and put together this entry for the Philosophers On series on the ethics and politics of abortion.
The Philosophers On series contains group posts on issues of current interest, with the aim being to show what the careful thinking characteristic of philosophers (and occasionally scholars in related fields) can bring to popular ongoing conversations. I ask contributors not for fully worked out position papers but rather brief thoughts that can serve as prompts for further reflection and discussion.
The contributors are: David Boonin (Professor of Philosophy and Director of the Center for Values and Social Policy at the University of Colorado), Kate Greasley (Associate Professor in Law, Oxford University), Elizabeth Harman (Laurance S. Rockefeller Professor in the Department of Philosophy and the University Center for Human Values, Princeton University), Perry Hendricks (doctoral student in philosophy, Purdue University), Bertha Alvarez Manninen (Associate Professor of Philosophy, Arizona State University), Gina Schouten (Assistant Professor of Philosophy, Harvard University), Christopher Tollefsen (College of Arts and Sciences Distinguished Professor and Chair of Philosophy, University of South Carolina), and Rivka Weinberg (Professor of Philosophy, Scripps College).
They cover a variety of issues with respect to abortion, including substantive disputes over its morality and legality, relevant empirical information, underlying values, and the nature of debates over these matters.
I’m grateful to them for putting such stimulating remarks together on such short notice. I urge you to read their contributions, join the discussion in the comments (see the comments policy), and share this post widely with your friends and colleagues.
You can scroll down to the posts to view them or click on the titles in the following list:
- “Why Abortion Should Be Legal Even if Every Fetus Has a Right to Life” by David Boonin
- “Abortion: Morality, Law, and Drawing Lines” by Kate Greasley
- “Some Fetuses Have Moral Status and Some Do Not” by Elizabeth Harman
- “Abortion is immoral even if the fetus isn’t a person: The impairment argument” by Perry Hendricks
- “Banning abortions won’t stop them: What the empirical data tells us” by Bertha Alvarez Manninen
- “On Abortion and Feminist Litmus Tests” by Gina Schouten
- “Rational Natures, Fetuses, and the Protection of the Law” by Christopher Tollefsen
- “A Conflict of Interests” by Rivka Weinberg
Why Abortion Should Be Legal Even if Every Fetus Has a Right to Life
(and why, if you’re not convinced by this short blog post, you should read my new book)
by David Boonin
PRO-LIFER: Suppose every fetus is a human being and has the same right to life you and I have. Would you then agree that abortion should be illegal?
ME: No. I’m a human being but my right to life doesn’t give me the right to use your body even if I need one of your kidneys or some of your bone marrow. So even if a fetus is a human being and has the same right to life you and I have, that wouldn’t give it the right to use a pregnant woman’s body even if it needed to use it.
PL: But you’re not already using my bone marrow. Every fetus is already using a pregnant woman’s uterus. And in most cases, the woman did a voluntary act that led to the fetus using her uterus.
ME: If you voluntarily start giving me some of your bone marrow, does that mean the state can force you to keep giving it to me for as long as I need it? If not, then the fact that her voluntary act caused a fetus to start using her uterus doesn’t mean the state can force a woman to let the fetus keep using it.
PL: But I didn’t create you and the pregnant woman did create the fetus that’s using her body.
ME: If your teenage son needs some of your bone marrow, does the fact that you created him mean the state can force you to let him use some of it? If not, then the fact that the pregnant woman created the fetus doesn’t mean the state can force her to let the fetus use her uterus.
PL: But bone marrow transfusions are artificial while pregnancy is natural: my bone marrow isn’t for keeping you alive, but a woman’s uterus is for gestating the fetuses she conceives.
ME: So abortion should be legal as long as the woman didn’t conceive the fetus she’s carrying?
PL: That’s not what I meant. A woman’s uterus is for gestating any fetus that finds itself dependent on her uterus.
ME: Then your bone marrow is for producing new blood cells for me when I find myself dependent on your bone marrow.
PL: Well, you and I are strangers, but a fetus is the pregnant woman’s son or daughter. And the law says we have stronger obligations to our children than we have to mere strangers.
ME: If by “our children,” you mean the people we created, I’ve already addressed this point.
PL: I meant something different. If I adopt a child, he’s still my child in the relevant sense. I’d still have stronger obligations to that child than I would have to a mere stranger.
ME: That’s because when you adopt a child, you explicitly consent to take on those obligations. A woman who has sex doesn’t explicitly consent to take on the obligation to let the fetus use her body.
PL: Well, she might not explicitly consent to take on that obligation, but by freely choosing to have sex, she tacitly consents to take it on since she knows having sex might lead to her starting to provide bodily support to a fetus.
ME: If you freely choose to start giving me some of your bone marrow, you know this will lead to you providing me with bodily support. Does that mean you tacitly consent to continue providing me with bone marrow for as long as I need it? If not, then the fact that the woman knew that sex might lead to her starting to provide the fetus with bodily support doesn’t mean she tacitly consented to let the fetus continue using her body for as long as it needs it.
PL: You must be against child support laws, then. If a deadbeat dad freely chose to have sex that resulted in the creation of a child, he can be forced to pay child support. Since his having sex is enough to give him a legal obligation to help the child, why isn’t her having sex enough to give the pregnant woman a legal obligation to help the fetus?
ME: Do you think the facts that justify taxing people to pay for medical research also justify conscripting their bodies for that research? Do you think the facts that justify imposing fines on lawbreakers also justify forcing them to donate bone marrow? If not, then the facts that justify requiring a father to provide financial support to a child don’t justify requiring a pregnant woman to provide bodily support to a fetus.
PL: The law puts a lot of weight on intentions, though. Compare first-degree murder to negligent homicide. When a woman has an abortion, she does so in order to kill the fetus. If I decide not to give you some of my bone marrow, I do so simply to spare myself the burden. She intends the fetus’s death, I merely foresee yours.
ME: So if I’m your business rival and you don’t want to give me your bone marrow because you want me dead, you think the state should have the right to force you to give me the bone marrow? If not, then while intentions sometimes make a legal difference, they shouldn’t here.
PL: The law also says killing is worse than letting die. Compare stabbing a person to death to not giving blood to someone who will die without it. Abortion kills the fetus but refusing to give you bone marrow simply lets you die.
ME: So abortion should be legal as long as we chemically induce a miscarriage or surgically remove a fetus from the uterus and leave it to die? If not, then this distinction doesn’t support your position either. And if so, then you don’t really support a ban on abortion, just a ban on some methods of abortion.
PL: I disagree. Expelling a fetus from a uterus doesn’t simply let the fetus die. It kills the fetus by actively discontinuing the life support it needs.
ME: If you start giving me the bone marrow I need and then stop, you actively discontinue the life support I need. Does that mean the state can force you to continue letting me use your bone marrow? If not, then the fact that expelling a fetus from a uterus actively discontinues the life support the fetus needs doesn’t mean the state can force a woman to continue letting the fetus use her uterus.
PL: Well, if the fetus is a human being with a right to life, would you at least support the legal restrictions on abortion that many states currently have? Would you support parental consent requirements, for example?
ME: Do you think a 16-year-old girl should need her parent’s permission to refuse to let someone use her bone marrow? If not, then, a 16-year-old girl shouldn’t need her parent’s permission to refuse to let a fetus use her uterus. Many current legal restrictions on abortion, perhaps most, should be rejected for similar reasons.
PL: Do you really think it’s all that simple?
ME: No, I don’t. If you want to consider some of the complications I’ve ignored here, you should read my new book.
Abortion: Morality, Law, and Drawing Lines
by Kate Greasley
Last month, the Alabama state legislature voted to criminalise abortion for any reason but the most serious risk to the health or life of the pregnant woman—in its terms, “the unborn child’s mother”. The “legislative findings” listed in the statute, presented as matters of brute, dry, fact, stand out for their deep moral contentiousness. Those findings stated unequivocally that all human life forms from conception are ‘unborn human children’; that ‘universal human equality’ begins at conception, and that whereas ‘abortion advocates [sic] ‘ignore the unborn child’, medical science has increasingly recognised its humanity and beamed back to us its in utero development. Most strikingly, the law assimilates abortion with ‘crimes against humanity’, likening it to the atrocities of the Holocaust, the Cambodian killing fields, the Rwandan genocide, and Stalin’s gulags.
The term ‘unborn child’ is tendentious, and intentionally so. Its very terms exclude the in utero dependency of the nascent human life—or indeed, its radical immaturity—from having any relevance for its moral status. The shocking comparison with the Twentieth Century’s worst atrocities is premised on the core contentious belief favoured by many abortion opponents: that the right to life of a developing embryo or foetus is every bit as strong as that of a five-year-old child, or an adult human. Is it?
The first and most essential thing to understand about this question, contrary to the representations by the Alabama legislature, is that it is not a scientific one. In virtue of what and at what point human life is morally considerable is a moral question through and through and there is no way to argue for any answer without moving through full-blooded moral premises.
In thinking about this, it can be helpful to separate out two questions about the moral status, or ‘personhood’, of embryos and fetuses. One question is about the conditions of moral status. This is the extremely complex and difficult issue of what endows creatures like us with strong moral rights, including the right not to be killed for anything but the weightiest of reasons. Do we have these rights by dint of belonging to the natural kind Homo sapiens, or are they a product of certain developmental capacities—cognitive, emotional, sentience-based—that we may not possess at all points in our human biological lives? Both views come with their challenges. If a full set of human genetic coding is the basis of moral rights, then a single-celled human zygote is every bit as morally important (from the point of view of the universe) as your ten-year old. That is a hard idea to stomach. On the other hand, if moral status and the right to life depend on capacities such as rationality, self-awareness, conscious desires, or agency, we might wonder where this leaves the moral standing of many born human beings, such as early infants (they are hardly rational or self-aware) or people with radical cognitive disabilities. Egalitarian intuitions that all born human beings are equal rights-bearers seem (on the face of it, anyway) to counsel against a developmental approach to moral status.
A different question is what we might call the threshold question, or the question of where to draw the line. This question can easily get conflated with the conditions question, but it is importantly different. It is the kind of question I think people have in mind when they ask why we should protect the life of a 24-week gestated fetus, but not a fetus at 23.5 weeks. It can be the question people have in mind when they ask why a neonate should have more protection from being killed than a fetus of the same gestational age. Why put the line there? The answer we give to the conditions question will be highly determinative of where we think the threshold ought to fall. For example, if I think the neurological capacity for consciousness is the basis of moral status, I will look for the point in human development where this is detectable. But past some point the directions will stop. This is especially true when we start to think in smaller and smaller increments, and are asked to pinpoint more precisely the moment when everything changes. The consciousness criterion might give us a general range in which to place the threshold (26-32 weeks, for example), but it cannot specify down to the day, hour, minute and second. The charge potentially laid down is therefore that any developmental threshold will be arbitrary as between these closer neighbouring points.
I am not convinced that this line drawing or threshold problem is, in itself, a real problem, as the conditions question is. First, some people’s worries about precision as between weeks, days, and minutes could fall foul the fallacy that no sharp boundaries means no real difference. I was a child once and am an adult now. There was no sharp boundary, no non-arbitrarily identifiable ‘moment’ when this change occurred, yet it did, and it was a real change. If precision, even between adjacent ‘moments’, is more of an issue in the abortion context, this can only be because of one’s further belief that the conditions for moral status do have sharp boundaries. There would otherwise be no sense in looking for one. But what further commitments about personhood and its conditions must one have if one believes that persons come into existence in a non-arbitrarily distinguishable moment? Moreover, even the human species membership criterion could not meet such a brief: conception is not a “moment”, but a process comprised of numerous connected moments, all indistinguishable from their immediately neighbouring ones.
What of the law’s line drawing? The law’s reasons aren’t exhausted by morality’s ones. Issuing clear guidance which is possible to follow is part of the law’s job, as is, sometimes, making determinate what is morally not completely determined. Prudence tells us that only the mature should drive, but it does not tell us whether the driving age should be 17 or 16 and 11 months. The law must adjudicate between these margins, as far as is practicable (it cannot specify down to milliseconds). Many factors might be relevant to where it is appropriate for the law to draw the line, once we know where the range of reasonable answers lies, and that we are clearly within it. To allow considerations such as clarity, visibility and social salience to enter the law’s reasons for specifying the threshold in a particular place is not, then, to throw up our hands on the question of moral status and allow convenience and pragmatism to reign. There are reasonable and unreasonable answers, whatever your moral view. Only once we are looking in the appropriate moral range, then, can the law’s reasons bite. But inside those boundaries, finding the law’s line-drawing disquieting because we cannot see profound moral differences right on either side of the line only raises the question as to why one thinks there is a beginning to personhood which is as sharp as all that.
(For more from Professor Greasley on this subject, see Abortion Rights: For and Against, by her and Christopher Kaczor.)
Some Fetuses Have Moral Status and Some Do Not
by Elizabeth Harman
The very liberal view of abortion holds that nothing morally bad happens in an early abortion, and that early abortion requires no moral justification whatsoever. (Let’s use “early abortion” to refer to abortion of a pre-conscious fetus, and let’s assume that fetuses do not become conscious until sometime after the first trimester of pregnancy.) Many people who believe that abortion is a reasonable course of action, and who think that abortion should be widely and easily available, are drawn to the very liberal view when they contemplate early abortions. They are drawn to the view that the early fetuses that die in early abortions lack moral status.
However, the very liberal view may seem to run into problems when we contemplate other early pregnancies. The very liberal view may seem to dictate a cold attitude toward all early fetuses—a cold attitude that seems misguided. Consider a woman who becomes pregnant and plans to continue her pregnancy and raise her child; she may well start to love the living being in her belly right away. Consider a pregnant woman who plans to continue her pregnancy and then faces an unexpected miscarriage; she may well mourn the death of the fetus who was to become her baby. Consider a pregnant woman who carefully limits her intake of caffeine and who refrains from smoking and drinking during pregnancy; she may well see the living being that is inside her body as itself the source of her reasons to limit and restrict her intake in these ways. These three women’s attitudes seem warranted and appropriate; they do not take cold attitudes toward their fetuses, and they do not seem to be making any kind of mistake. Considering these three cases may strongly press upon us the thought that these fetuses matter morally, that these fetuses have moral status.
These three cases appear to raise trouble for the very liberal view because it seems obvious that either all early fetuses have moral status, or that none do. (Or at least, it seems that two early fetuses at the same stage of development and in the same health must either both have moral status or both lack moral status.) But this seemingly obvious claim can be rejected. Rather, we could recognize that early fetuses fall into two quite different categories. Some early fetuses die as early fetuses; they are never conscious beings. Other early fetuses are the early stages of conscious beings. Each of us was once an early fetus; the early fetuses that became us were the early stages of persons.
Consider the following view:
The Ever Conscious View: a living being has moral status just in case it is ever conscious.
On this view, a living being has moral status throughout its life if and only if there is any moment in its life at which it is conscious. On this view, future consciousness is sufficient for present moral status. This view allows those of us who are drawn to the very liberal view of abortion, to hold on to that view without taking a cold attitude toward all early fetuses. According to the Ever Conscious View, those fetuses that die in early abortions lack moral status. Killing them is killing a morally insignificant being; there is no moral reason against doing so, and no justification is necessary. According to the Ever Conscious View, those fetuses that will become conscious already have moral status: these being are members of the moral community. They are appropriate objects of love, and they are themselves the source of reasons not to smoke or drink excessively during pregnancy.
What does the Ever Conscious View imply about early miscarriage? Suppose that a woman is pregnant and planning to carry her pregnancy to term. She loves the fetus that is inside her body, and then suddenly that fetus dies. Given that she planned to continue the pregnancy, her love for the fetus made sense. To have a living being that one loves suddenly die—is a horrible event. What has happened is a tragedy. But in my view, it is not a tragedy for the fetus. It turns out that the fetus lacks moral status. While an inclination to mourn for the fetus is understandable, to do so would be to get something wrong. Does this mean that miscarriages are not a big deal, and should be easily dismissed? Absolutely not. When a woman is pregnant and planning to continue her pregnancy, she vividly sees a future in which she now has a baby; this would transform her life in myriad ways (whether or not she already has other children). The tragedy for her is the loss of this version of her future life, and the death of a living being she loved.
It is common for people who are otherwise drawn to the very liberal view of abortion to nevertheless think that it goes too far: surely something morally bad happens in early abortion; surely early abortion requires some moral justification. I’ve argued that certain reasons for backing off of the very liberal view are mistaken. One can hold the very liberal view without taking a cold attitude toward all early fetuses, and while acknowledging that early miscarriage is a big deal.
If you want to learn more about my view, the Ever Conscious View, you could read my paper “Creation Ethics” (Philosophy and Public Affairs, 1999) or you could check out this video, in which I was interviewed about my view by the actor James Franco (as part of this series). My paper “The Ever Conscious View and the Contingency of Moral Status” is currently in progress.
Abortion is immoral even if the fetus isn’t a person: The impairment argument
by Perry Hendricks
“Pro-lifers” and “pro-choicers” disagree about whether abortion is immoral, and about whether the fetus is a person. However, both typically agree that (knowingly) giving a fetus fetal alcohol syndrome (FAS) is immoral. A fetus develops FAS when its mother drinks an excessive amount of alcohol during her pregnancy. Let’s say that a fetus is impaired if an ability it has is limited to some degree. On this definition of impairment, giving a fetus FAS impairs it: FAS limits its ability to develop properly. Moreover, to abort a fetus is also to impair it. This is because when one aborts a fetus, she kills it, and killing the fetus involves impairing it: when (or during the process in which) a fetus is killed, its ability to develop properly (among other things) is limited. Finally, aborting a fetus impairs it to a higher degree than giving it FAS: the fetus with FAS still has abilities whereas the aborted one doesn’t.
We’ve now arrived at an odd result for the pro-choicer: she affirms that it’s immoral to give a fetus FAS and that it’s morally permissible to abort a fetus. But aborting a fetus impairs it more than giving it FAS. So, why is the former morally permissible but not the latter?
The impairment principle states that if it’s immoral to impair a fetus to the nth degree, then it’s immoral to impair it to a degree higher than n, unless there’s a relevant difference between the impairments. Since it’s immoral to impair the fetus by giving it FAS, it follows from the impairment principle that impairing a fetus by aborting it is immoral unless there’s a relevant difference between giving a fetus FAS and aborting it. Call this ‘the impairment argument.’
To avoid the conclusion that abortion is immoral, pro-choicers need to identify a relevant difference between aborting a fetus and giving it FAS.
A critic of the impairment argument might cite the following as a relevant difference: the fetus with FAS has a future in which it will struggle, while an aborted fetus has no such future. This response doesn’t work, however, since it’s immoral to give a fetus FAS even if it doesn’t have a future in which it experiences the effects of FAS. For example, suppose Sarah, a pregnant woman, drinks excessively which gives her fetus FAS. What she did was immoral. But suppose that she’s later hit by a car and loses her fetus. In such a case, it was still immoral for Sarah to give her fetus FAS; she isn’t a better person, morally speaking, for having lost her fetus. What this shows is that giving a fetus FAS is immoral at the time the mother does so, regardless of whether the fetus is eventually born.
Another possible difference the critic of the impairment argument might cite is this: when one aborts a fetus, she intends to end its life prior to it experiencing the effects brought about by impairment, but when she gives it FAS she doesn’t intend to end its life. The idea is that if the mother intends for the fetus to not consciously suffer the negative effects of impairment, then impairing the fetus isn’t immoral. But this response doesn’t work either, since it can be immoral to give a fetus FAS even if one intends to end its life prior to birth. For example, suppose Sarah gives her fetus FAS and intends to have an abortion. However, other things came up (or she changed her mind), and she didn’t end up having an abortion. That Sarah intended to have an abortion doesn’t mean it wasn’t immoral for her to give her fetus FAS; her child was wronged by her when she gave it FAS, and this is true even though Sarah intended to abort it.
Perhaps there are other relevant differences that can be brought out between abortion and giving a fetus FAS. Pro-choicers bear the burden of identifying them. The upshot of the above discussion is this: showing that the fetus isn’t a person is insufficient to establish the pro-choice position; just because an organism isn’t a person, it doesn’t follow that its morally permissible to kill it. And this is true even if one rejects the impairment argument.
 I explicate and defend this principle, along with the argument contained in this piece, in my 2019 article “Even if the fetus is not a person, abortion is immoral: The impairment argument.” Bioethics 33 (2): 245-253.
 Those who endorse interest theory will deny this. Interest theorists will hold that Sarah’s fetus didn’t have the interests required for her (Sarah’s) actions to have been immoral. However, interest theory is contrived and contentious, and therefore won’t have a wide scope of appeal. For a succinct statement of interest theory, see Jeff McMahan’s 2006 article “Paradoxes of Abortion and Prenatal Injury” Ethics 116,(4): 625-655.
 Another example: suppose that infants aren’t persons. If Sarah infects her infant with HIV while intending to kill it soon after, it was still immoral to infect it with HIV.
 I address other purported differences in the article referenced in note .
Banning abortions won’t stop them: What the empirical data tells us
by Bertha Alverez Manninen
When she was just 18 years old, Carmen Aldana was sentenced to 30 years in jail in El Salvador after she delivered a stillborn baby. While in the midst of grieving her miscarriage, she was investigated and found guilty of self-administering an abortion (which she denied doing). Although her sentence was overturned on January 21, 2015, her conviction was a result of Article 1 of El Salvador’s constitution: “El Salvador . . . recognizes as a human person every human being since the moment of conception.”
There is no question that many in our country would welcome such a change in our laws. On May 7, 2019, Georgia’s Republican governor Brian Kemp signed HB 481, which aims to prohibit all abortions in Georgia upon detection of an embryonic heartbeat (with exceptions for rape, incest, and the physical health – excluding mental health – of the pregnant women). Like the El Salvadorian constitution, the bill states “unborn children are a class of living, distinct persons.” Women who seek to terminate their pregnancies, and any medical professional who aids her, could be subject to life imprisonment and even the death penalty, as abortion would be legally tantamount to homicide. Women who miscarry, under the law, would likely face some degree of investigation, as all homicides are. If it is determined that the miscarriage was due to some aspect of the pregnant woman’s behavior, she could face second-degree murder charges. In addition to Georgia, Alabama, Arkansas, Indiana, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Ohio, and Utah have all passed new abortion restrictions in 2019. Alabama’s law has even more restrictions than Georgia’s, allowing no exceptions for rape or incest, and criminalizing doctors who perform abortions with a class A felony, which carries a 10-99 years imprisonment penalty.
These laws were deliberately written to be extreme and unconstitutional; the goal is not just to restrict abortions in each respective state, it is to challenge Roe v. Wade with an eye towards overturning the 1973 landmark decision. What can countries with extremely restrictive abortion laws teach us about the correlation between such laws and abortion incidences? According to the Guttmacher Institute, “highly restrictive laws do not eliminate abortion. Rather, they make the abortions that do occur more likely to be unsafe.” Indeed, countries with restrictive abortion laws (where abortions are prohibited altogether or only permitted to save a woman’s life) saw an average rate of 37 abortions per 1,000 women aged 15-44. Countries with more liberal abortion laws, on the other hand, saw an average rate of 34 abortions per 1,000 women aged 15-44. A 2012 study noted that about “760,000 women [in countries with restrictive abortion laws] are treated annually for complications from unsafe abortion.” Yet another 2014 study found that “at least 10% of all maternal deaths in Latin America and the Caribbean [where abortion access is restricted] were from unsafe abortion.”
In my research, I have written many pieces that call for some attempt at respectful dialogue and a focus on points of convergence between pro-life and pro-choice advocates. Here is one possible point. Nobody likes abortion. While pro-choice advocates champion reproductive rights, they do not typically celebrate the abortions themselves. Both sides can agree that in a perfect world, no one would have to face an unplanned pregnancy and every child that was born was a planned one. In a perfect world, women would not suffer from sexual assault, contraception would be available to whoever needed it, along with the knowledge on how to effectively use them, and it would never fail. We do not live in that world now, but advocates on both sides of the aisle can try to move towards a goal of reducing the need for abortion.
The evidence is overwhelmingly clear: restrictive abortion laws do not curtail abortion incidences. So what does?
A 2017 study notes that “the steepest decline in abortion rates occurred in Eastern Europe, where use of effective contraceptives increased dramatically; the abortion rate also declined significantly in the developing subregion of Central Asia. Both subregions are made up of former Soviet Bloc states where the availability of modern contraceptives increased sharply after political independence—exemplifying how abortion goes down when use of effective contraceptives goes up.” European countries with low abortion rates share some consistent commonalities. In addition to having liberal abortion laws and wide access to contraception, they have robust social safety programs as well. Indeed, in the U.S., socio-economic concerns are paramount for many women who seek abortions. A 2017 study found that “49% of abortion patients had family incomes below 100% of the federal poverty level”, and consequently faced “disparities in access to family planning services and other types of reproductive health care.” Women facing the prospect of single parenting have a reason to want to avoid it. Single-parent households headed by women often face crippling poverty. A 2015 study illustrated that single mothers were at a much greater risk of living in poverty than single fathers, and that this risk increased with every additional child. Yet another study noted that amongst affluent democracies, the U.S. “has the highest rate of poverty among single mothers…” Given this, it is unsurprising that, when women are asked why they chose abortion over parenting, financial concerns was one of the most frequently mentioned reasons.
What all this information tells us is that the emphasis on banning abortions is gravely misguided. Instead, pro-life advocates should join pro-choice advocates in enacting empirically supported methods to drive down abortion rates: wide access to contraception, medically accurate sex education that includes how to use that contraception correctly, and, instead of shaming people in need of public assistance, strengthening our social safety net programs to help those in need to overcome poverty.
(For further thoughts from Professor Manninen on this subject, see her book, Pro-Life, Pro-Choice: Shared Values in the Abortion Debate.)
On Abortion and Feminist Litmus Tests
by Gina Schouten
Believing that abortion is morally permissible (being “pro-choice”) should not be a treated as a requirement for membership in feminist movements or communities.
My interest in litmus tests here is entirely negative. I argue against the claim, which I commonly hear voiced, that abortion is not only morally permissible but so clearly morally permissible by the lights of feminism that anyone who isn’t pro-choice can’t really be a feminist. I want to challenge this claim by arguing against the most compelling reason I can see for believing it: the conviction that the pro-choice position on abortion is so clearly supported by the fundamental feminist commitment to women’s full social equality that anyone who isn’t pro-choice must be denying or ignoring that fundamental commitment. I’ll argue that this reasoning is mistaken. We can reasonably deny the pro-choice conclusion without failing to take seriously the basic feminist conviction thought to entail it.
I won’t deny that the pro-choice conclusion follows from the fundamental feminist commitment to women’s equality; only that it follows obviously. I’ll argue that there is reasonable feminist disagreement about what follows from a commitment to women’s equality, with respect to abortion. The main payoff of the argument is that it gives us principled grounds for broadening political coalitions and increasing diversity within feminist and progressive movements.
Outside of philosophy classrooms, the ethics of abortion is often thought to be a matter of discerning what moral status fetuses have, if any. Those who think that abortion is always morally permissible might be denying that fetuses ever have the kind of moral status that would make them presumptively wrong to kill. I don’t know what kind of moral status fetuses have at various stages. But notice that there is nothing particularly feminist about this case. If I argue that fetuses are morally significant, I have not even appeared to deny any fundamental feminist commitments. Notice, too, that the answer to the question of fetal moral significance is not clear, whatever the facts may be. The range of reasonable views include those attributing moral significance to fetuses at various points during gestation and those claiming that fetuses are morally significant from the start. Such views may be false, but they are not beyond the pale. Nor are they incompatible with a feminist commitment to women’s equality. Those who would impose pro-choice as a litmus test for feminists should not want to rest that case on the reasonably disputed claim that fetuses lack moral status.
Instead, they should rest the case on the premise that reproductive control, including genuine access to abortion, serves a very morally important interest of women because reproductive control is crucial for securing women’s full social equality. This is a true feminist commitment that, plausibly, nobody can reasonably reject. But does it settle the ethics of abortion beyond reasonable feminist disagreement?
I want to describe an argument that draws on reasons that weigh against the morally weighty consideration of women’s equality and concludes that abortion is morally impermissible. The argument doesn’t contradict the feminist premise just outlined; it only denies that that premise settles the matter. And it draws on another fundamental commitment of feminism: an appreciation that dependency is a normal part of life, and a commitment to ensuring that dependents receive the basic care that we all need to survive and to flourish. This commitment isn’t exclusive to feminism, but it’s important to feminism, and feminists have rightly argued that it matters for moral theorizing.
The argument I’ll describe is more fully developed in this article (freely accessible for now). Remember that here, I’m not arguing for any conclusion about the ethics of abortion. I’m only arguing that being pro-choice shouldn’t be a requirement for membership in feminist political movements and communities. So I need to convince you only that there’s a reasonable argument, derived from feminist commitments, that supports the conclusion that abortion is morally impermissible, and that someone might believe that conclusion on the basis of that argument without denying the moral importance of women’s equality and without denying that genuine access to abortion is necessary to securing it.
Here’s the argument: Women’s very strong and morally important interest in being able to terminate an unwanted pregnancy does not settle the ethics of abortion, because conditional on fetal moral significance, abortion presents a tradeoff between that interest and another morally important interest: the fetus’s interest in receiving care during times of profound dependency. Because of the moral importance of the interest in receiving care during times of dependency, if the fetus has moral status (a big if, but remember that someone could reasonably affirm it), then there is a presumptive obligation to provide care for it, including gestational care.
In my elaboration of this argument, that obligation is a social obligation. Receiving care during times of dependency shouldn’t be contingent on having the good fortune of knowing somebody who will be intrinsically motivated or independently obligated to care for you. Shared obligations of gestational care present a problem, because neither the care nor the costs of providing it can be fully shared. We could share the costs far more than we presently do. Indeed, one implication of my argument that dependency generates social obligations is that we owe pregnant women much more social support then we presently give them. This is true particularly, or at least most obviously, in the case of women bearing costs of gestational caregiving that they are not intrinsically motivated to bear. But we currently have no way to fully equitably share the costs or work of gestational caregiving. That means that the obligation would fall heavily—in many cases, tragically heavily—on unwillingly pregnant women.
Does that mean the obligation goes away? Does women’s morally important interest in reproductive control erase or overwhelm the obligation (conditional on fetal moral significance) to provide fetal care? The dependency that generates the obligation doesn’t go away even when the costs of providing care are high. But when a shared obligation can be discharged only at a high and morally significant cost to a particular person, at what level do the costs to that person make the obligation go away?
My own view is that we can be morally obligated to incur some pretty high costs to meet needs for care. Suppose that the fetus is as morally significant as a newborn baby. (I don’t know if this is true, but feminists shouldn’t think that denying it is a requirement for being a feminist in good standing.) In that case, I would think the social moral obligations generated by fetal dependency could weigh on us heavily. If so, we should devise mechanisms for sharing the costs of discharging those moral obligations as broadly as possible. The work and costs would nonetheless fall very heavily on pregnant woman. At some level, surely, the obligation to provide care is outweighed. Women do not have to provide unshareable gestational care at the cost of their own lives. I don’t know at what point the costs overwhelm the moral obligation to provide the care. But I think we can see that someone might reasonably reason, from the feminist commitment to ensuring care for dependents, and from a view of fetal moral significance that feminist should not reject as unreasonable even if they regard it as false, to the conclusion that abortion is morally impermissible in many cases.
The fundamental commitment to providing care for dependents regardless of their fortune in social networks supports the conclusion that gestational care is morally obligatory care. It might seem that the argument to this conclusion depends on denying a different fundamental feminist commitment, like the commitment to ensuring women’s basic social equality. But if our obligations to provide needed care for vulnerable dependents are very stringent, as one might reasonable think they are and as feminists are not compelled by their commitments to deny, then the argument I’m describing needn’t deny the tremendous moral urgency of women’s equality. We simply face a dire tradeoff between two worthy feminist commitments, which those commitments themselves do not settle beyond reasonable dispute.
Feminists should welcome into their communities and political movements those who feel unsure about the abortion question, and even those who believe that abortion is morally problematic. The pro-choice position is rationally resistable on the basis of fundamental feminist commitments, and without denying any other fundamental feminist commitments. The really tortured work is to weigh divergent true feminist commitments. On this, reasonable feminists may disagree.
Although I consider the matter in the article referred to above, I have here set aside questions of policy and legality. I do think that feminists can work for consensus on certain policy parameters. One boundary on the range of reasonable policy concerns access: Whatever access to abortion you think must be protected, you should think it must be ensured regardless of social means. The costs of providing gestational care will for now fall disproportionally on women. But they should not fall disproportionally on poor women. We should acknowledge that feminists can reasonably disagree about the ethics of abortion, and (this part I haven’t argued for) about the policy implications of those divergent ethical conclusions. But we can and should work for a feminist consensus on this much: Whatever access to abortion remains legally protected, that access should be ensured for all.
Rational Natures, Fetuses, and the Protection of the Law
by Christopher Tollefsen
Few professional philosophers are, as I am, sympathetic to the claims of unborn human beings to the protection of the law. So a potentially promising approach in the little space allotted may be for me to say something about why I dissent from what is pretty much professional orthodoxy on this question.
The basic thought is that the law exists for the protection of persons; it constitutes the fundamental set of protections that make it possible for persons to exist together as a community.
To me, therefore, the central question is: granted that you and I are persons, with legal protections from unprovoked violence, enslavement, rape, and torture, and granted that these protections should be extended to any beings relevantly like us, what does “relevantly like us” mean?
For many, it means something like, “like us in being, right now, more or less capable of actualizing our powers of sentience, sapience, emotion,” and so on. By that standard, dogs are more like us than human fetuses.
But there is a way in which human fetuses are vastly more like us than any other creature of whose existence we are directly aware. Human fetuses—if they do not die, or are not otherwise impaired—will grow and develop naturally to the point of being able to exercise exactly the characteristics that impress us—especially philosophers!—so much. No other being of whose existence we are directly aware will ever do that, not even the brightest dolphin or ape.
That suggests that human fetuses and human adults are equally possessed of something that is not at all possessed by any other earthly being: a nature that is such that beings with that nature develop to the point of being able to actively display their rationality. Call that a “rational nature.” That seems a radical commonality, the sort that should impress us when we are asking, “To which other beings like or unlike us in this or that way—bigger, smaller, darker, paler, younger, older—should we think that the most fundamental protections and immunities belong? Which other beings are like us in the relevant way?” Possessing a rational nature seems like the most important similarity to me.
That rational nature in this case just is human nature, the nature possessed by every individual human being (there might be other cases; the argument would then apply to those beings as well). And so the law’s concern to protect persons is, normatively, a concern to protect human beings—all human beings. It is the community of human beings within its domain that any particular order of laws protects or, at the cost of failing in its essential mission, fails to protect.
Thinking about the law and its relation to human beings this way seems to me deeply liberal; it draws inclusive rather than exclusive boundaries of protection, and acknowledges that the exclusive boundaries typically manifest the power disparity on display between those who can actually, here and now, make law, and those who can’t: infants, the cognitively impaired, the unborn, or, at various points in our history, women, Black Americans, Native Americans, or Americans of Japanese descent.
The power to make law will always, of necessity, rest in only in the hands of the powerful. So it is of preeminent importance that they, the law-makers, consider sympathetically the appeal that those human beings currently without power would make if they could for the protection of their rights to life and liberty. That a living human being is not yet able to issue such an appeal seems to me an insufficient reason for excluding that being from the law’s fundamental protections; protecting the lives of all human beings at law would at a step advance the justice of our nation’s laws in a way that literally millions of human beings would one day be grateful for.
(For more of Professor Tollefsen’s thoughts on the issue, see Embryo: A Defense of Human Life, which he co-authored with Robert George.)
A Conflict of Interests
by Rivka Weinberg
I suspect my views on abortion are pedestrian, moderate, boring, and accurate. I haven’t written about it because I don’t have novel arguments to add to the literature, I worry more about being forced into existence than being forced out of it, and I see abortion as a morally gray issue. So why am I still talking? Because I think abortion is a complex case of a conflict of varied, changing, and developing interests, and, in the current climate of increasingly polarized views on abortion, perhaps that’s a framework worth arguing for.
So, the conflict:
The pregnant woman has a very strong interest in bodily autonomy, health, and freedom from interference with her pursuit of her conception of a valuable life. These interests can vary depending on the woman’s feelings, attitudes, values, health, and socioeconomic status, among many other factors. Some of the factors that may influence the strength of a woman’s interest in terminating a pregnancy include being financially secure or insecure, in a stable or unstable relationship, in good or poor health, and being pregnant as a result of consensual or non-consensual sex, among others.
All of this matters: It matters whether a woman can afford to raise a child because, if she can’t, her interest in terminating a pregnancy is stronger. It matters whether she is in good health or not because risks to health strengthens a woman’s interest in terminating a pregnancy. And, yes, it matters whether the pregnancy is due to rape, birth control failure, or irresponsible intercourse because those factors can strengthen or weaken a woman’s interests in termination, since voluntarily risking pregnancy can sometimes indicate a weaker interest in not being pregnant and/or an interest that is fair to consider weaker because, generally speaking, people usually take some care, or perhaps can be held responsible to take some care, to protect their interests.
The fetus has evolving interests in continued life and, at some point, the many varied interests a person can have. The fetus’s interests can vary depending on its expected health and other life circumstances, and the fetus’s interests evolve due to the radically changing nature of the fetus itself: at the earliest stages of pregnancy, a fetus consists of an incompletely differentiated group of cells, with no heart or brain. That’s an entity with fairly weak interests since it has little sentience, no consciousness, and little in common with an actual person and the features, such as subjectivity, or a “what-it’s-like” to be it, that seem central to having strong interests. At around twenty weeks gestation, the fetus has brain waves and sentience, making it reasonable to speak of it as having an interest in the life it is beginning to lead. By twenty-eight weeks, or even earlier, many fetuses are viable to live and develop outside the uterine environment, making them in many ways similar to newborn infants, with similarly strong interests. During the final months of pregnancy, a fetus is in most ways nearly identical to a newborn baby, with similarly strong interests in its own developing life. All of this matters too. It matters because it impacts the strength and importance of fetal interests and, in a conflict of interest case, the relative strength and importance of the conflicting interests are crucial factors to fair adjudication of the conflict.
Given these sets of legitimate, complex and varied interests, it’s reasonable to be skeptical about views that come down on the extreme end of either set. It’s unreasonable to conclude that just because a fetus may have a future like ours that it has, when in state of cell goo, the same kind of interests as a baby. And it’s even more unreasonable to conclude that a woman must therefore risk her health or life plans to maintain it, given that we don’t generally require that level of sacrifice for mere potentiality (or even, on many views, for actual people). Yet it seems equally unreasonable to adopt slogan-like “my body, my choice,” views because that completely ignores the other body inside your body (without any choice at all) and it also ignores the fact that we’re not free to do what we please with our bodies without considering the interests of others. Can I punch you in the face because it’s my fist, and “my fist, my choice”?
Morally, I think the interests at issue in this conflict of interests case lead to the defeasible conclusion that most first trimester abortions are usually morally permissible because early term fetal interests are relatively weak. Later abortions are more morally fraught and sometimes morally impermissible. But late term abortions are rare, and rarely sought without strong reasons related to fetal or maternal health. Because the interests at issue in the abortion conflict are varied, complex, and changing, defeasible “usual” moral conclusions are all that I think we can draw. Most abortions that women choose fall into the usually morally permissible category. Therefore, given that the law is a blunt and coercive instrument, to be used with caution and appropriate restraint, abortion should remain legal.
Finally, it’s important to acknowledge that because abortion involves a conflict of legitimate interests, some may mistakenly see one side of the conflict as inherently stronger than the other, regardless of circumstance. Some see the fetus’s interests as grounding a right to life and see the right to life as stronger than the right to bodily autonomy. Some see the woman’s interest in bodily autonomy as grounding a right to withdraw consent to use of her body at any time and for any reason. I’ve argued against one-sided views. But I try to understand where they’re coming from and won’t malign all those who have them as misogynists or murderers. In a complex conflict case, there are many possible sincere positions, and extreme positions are likely to be due to a lack of understanding or appreciation of the other side of the conflict. Recognizing abortion as a complex conflict of interests case can help guard against that sort of error.
(For more of Professor Weinberg’s thoughts on procreative ethics, see her book, The Risk of a Lifetime: How, When, and Why Procreation May Be Permissible.)