Philosophers On the Ethics and Politics of Abortion

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.

Source: NPR

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
(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.[1] 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.[2]

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.[3]

Perhaps there are other relevant differences that can be brought out between abortion and giving a fetus FAS.[4] 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.

[1] 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.
[2] 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 InjuryEthics 116,(4): 625-655.
[3] 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.
[4] I address other purported differences in the article referenced in note [1].

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.)

Discussion welcome.

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Sarr Blumson
Sarr Blumson
4 years ago

It seems to me that, like so much discussion of abortion, all of the contributors miss half of the disagreement. Whether abortion is moral in any particular circumstance is important for anyone confronted with a decision, but from a societal perspective the first question needs to be “who should decide?”

Prof Schouten’s remarks are particularly relevant here, because “who decides”  is exactly the feminist issue. Whether abortion is a wise decision is situational and often difficult, but giving that decision to anyone other than the woman whose body is involved is a denial of her agency.

Jon Light
Jon Light
Reply to  Sarr Blumson
4 years ago

That doesn’t strike me as exactly correct because part of her agency consisted in getting pregnant in the first place. (Set aside rape cases and focus on consensual sex. Further assume contraception is widely and cheaply available, for at least many pregnant women.) So it’s not like a woman seeking an abortion for consensual sex is like a leaf blowing down the river, completely lacking agency.

Second, the other problem with agency-driven approaches is they’re almost completely silent on the difference between a fetus and, say, a Fruit Loop. If all we care about is women controlling their own bodies, then it just doesn’t matter whether what the features are of whatever’s inside them. To the extent that it does matter, then female autonomy isn’t the only relevant moral value.

And so the “meta-“contribution to this debate is meant to be something like this: abortion is complicated. Pace the left, nobody’s some evil female-hater for thinking it’s not obvious that women should be able to have abortions whenever they want, regardless of the details. Pace the right, there’s a difference between a clump of cells and your best friend. Until people can understand the self-evidence of these sorts of claims, we’re just not going to get anywhere.

And FWIW, this is more or less where *Roe* lands, as ultimately a balancing test between cognizable moral concerts. Furthermore, legally, *Roe* is, now, heavily overshadowed by *Casey*. *Roe* doesn’t mean anything if government restrictions don’t comprise “undue burdens” on abortion access. For example, if you can close all the abortion clinics in western Texas under *Casey*, then *Roe* is substantially nerfed. So the other meta-point is that most of the action is on “undue burdens”, not the legality of abortion itself. And then there’s obviously moral correlates all the way down on that debate.

Julie Sloane
Reply to  Jon Light
1 year ago

Consenting to sex is not the same as consenting to receive sperm. A woman may consent to have sex with a man but not to receive his sperm. If he gives her sperm against her wishes then she is under no obligation to gestate his sperm.

Aaron Lercher
Aaron Lercher
Reply to  Sarr Blumson
4 years ago

I agree. In red states such as where I live, the political question is whether women should have morally and legally permissible agency to have an abortion.
Women’s permissible agency to have sexual intercourse is not questioned. So Jon Light’s reply misses the point (among other things).
There are two kinds of cases: (a) situations in which women have sufficient financial and social support to have a child without hardship and (b) other cases. In the former kind of case, women engage in a complex deliberation, of which a man like me has only a vague understanding. Perhaps an abortion opponent might argue women in these situations should (nearly) never decide to have an abortion. I thoroughly disagree with abortion opponents, but perhaps I am wrong, and perhaps they might have something to contribute to women’s deliberations in such cases. (When I teach, this provides space for abortion opponents.)
The other (b) cases resemble those Thomson models with hypothetical examples in her famous article. In these cases, women cannot afford to have another child, or lack sufficient social support. In such cases, pregnancy may resemble a kind of trap or kidnapping situation. Since most US women who have abortions are low income, most already are mothers, and nearly half do not have a cohabiting partner, it seems that the latter kind of case is more prevalent in the US than the first kind of case. Denying women’s permissible agency in the latter cases is cruel.

Sarr Blumson
Sarr Blumson
Reply to  Aaron Lercher
4 years ago

I should have been more clear. The moral issues around abortion are interesting and important, but in a political context the question is who decides. That’s a very different, although related, question and I’m disappointed that it’s not being addressed.

Aaron Lercher
Aaron Lercher
Reply to  Sarr Blumson
4 years ago

You seemed clear to me.
I hope my distinction between cases helps show that moral deliberation is done only if one has the political ability to make these decisions. But women’s political rights to make these decisions are in danger in red states now.

Joseph Rachiele
Joseph Rachiele
4 years ago

I have a question for Professor Manninen about the evidence that restrictive abortion laws do not curtail abortions. You cite the Guttmacher Institute in this regard. But I’ve heard this study criticized due to the fact that countries with liberal abortion laws tend to have better access to contraceptives and thus lower abortion rates from what they would be if their access to contraceptives were comparable to that in countries with restrictive laws.

I’d like to see something like statistical analyses of changes in abortion incidence (or trends thereof) after the introduction of more restrictive or liberal laws. I found something like this for Eastern Europe, but it only included *legal* abortions within the affected countries, so it struck me as incomplete. Curious if you or others know of any good work in this vein.

Reply to  Joseph Rachiele
4 years ago

Right, I’ve also heard the Guttmacher study is held in low-regard for just being bad social science. Note also that the organization explicitly seeks to “advance . . . reproductive rights in the United States”, so we’d hardly expect them to be unbiased. (As further evidence, their current headline is “Unprecedented Wave of Abortion Bans is an Urgent Call to Action.”) So maybe, as a starting point, we could agree to use studies from non-partisan organizations. Or even, given that we’re academics, something like peer-reviewed journals rather than partisan think tanks.

But, just to focus the point, you can’t look at rates of abortion as tied to liberal/illiberal abortion laws simply because there are so many possible confounds, none of which Guttmacher controls for. An obvious one would be rates of available contraception, as mentioned above. Another would be socioeconomic status. Another would be religion. The study doesn’t look at any of this stuff.

And so it just doesn’t follow that there’s no relationship between abortion laws and abortion rates. The other bit of the headline–that “banning abortions won’t stop them”–is also curious. Who said it would? And even if it wouldn’t “stop” them, would it “lower” them (i.e., once we do the social science better)? Don’t know; maybe, maybe not. But suppose it would lower them: wouldn’t that be enough to vindicate those laws vis-a-vis the people who want to effect them in the first place? (I.e., it’s a straw person to say that, just because abortions aren’t “stopped”, the laws aren’t “doing what they’re supposed to be doing.”)

Joseph Rachiele
Joseph Rachiele
Reply to  JL
4 years ago

Yeah, to control for differences between countries when estimating
the reduction of abortions when restrictive laws are introduced, the study I mentioned uses some explicit covariates as well as country fixed effects. Not endorsing the results, but it seems (from a skim) like an example of the kind of thing I had in mind.

4 years ago

Ok, so i’ve been recently bothered by a weird asymmetry that seems to have echoes of the non-identity problem. Any insight other philosophers have would be appreciated.

Consider this passage of Manninem (and I have not yet read the book, so its very possible my question has already been asked and answered):
“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.”

Now, it seems to me clearly correct that pro-life advocates have VERY strong reasons to strengthen social safety nets, provide greater early childhood assistance to parents, and do similar things to help decrease the pressures on pregnant women to get an abortion. I’m less clear, however, that pro-life commitments give a particularly strong reason to support contraceptive use (now, there can be other VERY good reasons to do so, my question here just concerns if the pro-life person’s opposition to abortion provides such a reason) even if we accept (as i think everyone does) that increased access to contraception would decrease abortions.

My worry is that it’s hard to see myself as protecting a fetus’s right to life by helping make sure it does not come into existence. Even if we suppose there is nothing wrong with not coming into existence, and there is something bad about abortion. Still, who is protected if we decreasing abortions by keeping the would-be aborted from coming into existence? Perhaps one fewer injustice occurs, but justice does not seem to demand that we minimize the number of injustices but instead that we spare people from injustice, and its not clear to me that anyone is spared from an injustice via contraception (I think part of my worry here is indebted to stuff Cora Diamond says about benevolence in her amazing piece ‘How Many Legs,’ though admittedly used to different purposes).

4 years ago

Question for Boonin: Suppose that you’re right that abortion should be legal. Would you nevertheless agree that a mother (or father) that doesn’t give her (or his) child bone marrow has acted immorally?

4 years ago

a couple thoughts re: Boonin– 1) the teenage child / bone marrow analogy seems strained to me. A teenager needing a parent’s bone marrow is a low likelihood outcome of illness processes that are, in the standard case, essentially independent of the parent. Which was also the case in McFall v Shrimp, as Shrimp had nothing to do with McFall’s illness. Whereas the need of a fetus for a gestative environment is the guaranteed result of conception which is, in the standard case, the result of a process which goes through the parents voluntary choice as an essential causal intermediary (or, at least, I assume you are not implicitly assuming otherwise for the sake of your case). That is, we can talk not just about the conjunction of “created you” & “you are dependent”, which is satisfied both by the teenager and the fetus, but about “created your dependency on me” which is satisfied by the fetus and not the sick teenager.

2) “Do you think the facts that justify taxing people to pay for medical research also justify conscripting their bodies for that research?” Most people seem not to think so, so it is dialectically appropriate for you to make this point. But despite the popularity of this position, I am not aware of great arguments for it. Consider that many enforceable duties involve “conscripting bodies;” e.g., should the state enforce a duty of rescue on you, requiring you to get the baby out of the fountain, it thereby requires you to move your limbs in certain ways, to get yourself wet, to touch an individual who you may not consent to touch, etc. Jury duty requires one to show up at a place and time. And other state actions that people agree are legitimate involve imposing bodily risks, as when different policy and design choices determine the risks of injury one faces on the roads, the surgical procedures that are available in the hospitals, and so on. The most involved treatments of the subject I’m aware of end up concluding, with respect to the bodily/non-bodily distinction, that in the end there’s not much there. (e.g. Cecile Fabre, Whose Body is it Anyway?, who endorses conscription for e.g. blood donation under conditions where it matches an enforceable duty of rescue).

I am not an expert on this topic, but it’s something I’d like to read more about. If it is not too presumptuous to crowdsource to the commentariat: is anyone aware of any extended, philosophically excellent defense of strong in-principle rights to bodily non-interference from the state?

Reply to  mrmister
4 years ago

It’s also worth noting that the dependency created counts as a harm to the (assumed) person – they are in grave danger of dying, should the dependency relation be severed. In the law, one can be sanctioned, sometimes severely, for putting another in such a situation – even if only through negligence.

If I get in a car accident through my own negligence, and the other driver is now in need of blood to save her life – blood of my (scarce) type, the state probably can’t force me to donate the blood (even though I ought to). However, I could certainly be considered criminally and civilly liable for their death, should I not provide the needed blood – not because I didn’t fulfill the life-saving need, but because the death was the result of my negligence.

There’s still the question of how “negligent” consentual sex is, and there may be a right to sexual activity that doesn’t transfer to things like driving. It’s also worth noting the fact that the dependency burden falls only on one of the two “negligent” parties (but the liability would apply to both).

Reply to  mrmister
4 years ago

RE: quote #2: “Do you think the facts that justify taxing people to pay for medical research also justify conscripting their bodies for that research?”

The answer is probably ‘yes’. Even most hardline libertarians recognize that the social contract will need to support a military and thus a draft. Once you’re drafted, you are subject to medical procedures. Human experimentation? Probably not. But it seems pretty plausible that you can be ordered to give blood. At any rate, the point about human experimentation is a non sequitur because the government is not forcing women to undergo medical proceedures but rather restricting them from doing so. In this case, the analogous question would be whether the government has a right to actively prevent soldiers from cutting off their hands or otherwise injuring themselves so that they were no longer fit for combat. The answer is clearly ‘yes’. Hence the right to bodily autonomy can be trumped by the social contract.

4 years ago

A question for Prof Harman. What does your view say about attempted, but failed abortions? If you have an abortion, you do something of no moral significance (because the victim has no moral status). If you attempt but fail, and the fetus becomes conscious, the fetus had moral status all along. In attempting (but failing) to have an abortion you attempted to kill someone with moral status — you attempted murder, a terrible thing!

If that’s right, then it looks like you’re committed to its being the case that while it is perfectly permissible to have an abortion, it is terribly impermissible to attempt to have an abortion, but fail to do so.

Is that a consequence of your view? If so, that seems strange. For one, are we not running great moral risks when we decide to have an abortion? To fix ideas: suppose the only abortifacient Eve can access before the fetus becomes conscious is out-of-date and, as it happens, out-of-date abortifacients either work perfectly or are inert. Does Eve take a great moral gamble in taking the abortifacient? It seems that your view says that it is like playing an odd sort of Russian roulette; one where on a certain outcome Eve did nothing wrong whatsoever, but on another, Eve did something terrible. (I say an “odd sort of Russian roulette” because in normal Russian roulette, one does something terrible, regardless of the outcome.)

If not, where do you get off the boat? (Perhaps you think it isn’t objectively wrong — whatever “*objectively* wrong” might mean — to merely attempt to murder someone?)

Elizabeth Harman
Elizabeth Harman
Reply to  manny
4 years ago

Thank you for your question!
What does my view say about the case in which someone tries to abort her pregnancy, but fails? Let’s suppose the fetus is unharmed, and the pregnancy continues to term. As you point out, this woman has tried to kill a being that *has* moral status on my view. So has she committed attempted murder?

She has not. Attempted murder is an attempt to do what would have been, if successful, a murder. But the woman has tried to do what would have been a killing of something that would have lacked moral status. She is attempted to do something that would have been, if successful, completely morally innocent.

Reply to  Elizabeth Harman
4 years ago

Prof. Harman, it seems like the crux is the following. In day to day life, “trying to kill a being that has moral status” and “trying to kill a being in such a way so that, if successful, it would have had moral status” never come apart. In the abortion case (on your view), they do come apart. In order to avoid Manny’s objection it seems like you have to say that the latter is really what’s bad and the former is completely ethically neutral. But, at least on the face of it, “trying to kill a being that has moral status” does seem very bad. Why isn’t it bad? Can’t both of them be bad?

Reply to  Curious
4 years ago

Thanks. I suppose I was taking it as a datum that it is wrong to attempt to kill something of moral status.

I share Curious’s curiosity.

Joseph Rachiele
Joseph Rachiele
Reply to  manny
4 years ago

If by “murder” you mean “wrongful killing,” then a failed attempted abortion of an early fetus wouldn’t be attempted murder on Harman’s view, for one is attempting a permissible killing.

So I’m curious why you might think that it’s wrong to fail an attempt to kill an early fetus with moral status (in cases like those where you take an inert drug and so there is no harm to the fetus). If I put poison in Bob’s tea and Bob drinks coffee instead, my action seems wrong because if I had succeeded, I would have done something wrong. But this naive understanding of what makes certain kinds of failed attempts wrong doesn’t apply to failed attempts to abort early fetuses with moral status, at least on Harman’s understanding of the morality of successful attempts.

Jonathan Reid Surovell
4 years ago

Tollefsen writes that various legal protections should be granted to creatures relevantly like us. He considers two understandings of “relevantly like us”:

1. ‘“like us in being, right now, more or less capable of actualizing our powers of sentience, sapience, emotion” and so on.’

2. Having “a nature that is such that beings with that nature develop to the point of being able to actively display their rationality.”

If I understand his argument for the second view, it’s that it reduces the risk that the powerful sentient will use the law against the powerless non-sentient.

This is an interesting pragmatic argument for using 2 in lawmaking. It seems to me worth noting, though, that it’s not evidence that 2 identifies a relevant characteristic for determining the moral status of the fetus.

Moreover, there are pragmatic considerations for using a different view in lawmaking, namely, the argument that women are less powerful, in various respects, and that “lawmakers should therefore consider sympathetically” women’s concerns about how less access to abortion would diminish their opportunities or potentially saddle them with lives they don’t want. Then there are the empirical concerns, discussed by Manninen, that the law wouldn’t successfully protect the non-sentient.

I agree with Tollefsen that 1 is too restrictive, as it excludes human adults with profound cognitive disabilities and infants. Tollefsen says that “many” accept something like 1. However, as I see it, philosophical work on moral status has progressed far beyond 1. I don’t see why a discussion about lawmaking shouldn’t start from these more sophisticated theories.

Bonnie Steinbock has proposed a theory on which consciousness and the potentiality to become rational are jointly necessary and sufficient for full moral status. (On Steinbock’s view, consciousness establishes moral status but not *full* moral status.) That addresses the concern about infants. I’ve tried to add to her theory to address the concern about adults with profound cognitive disabilities. On my theory, a being has full moral status if and only if (1) she has moral status and (2) (a) has had advanced cognitive capacities, (b) has the potential to develop such capacities, or (c) would have had such capacities were it not for luck.

The rationale for theories like mine and Steinbock’s is that, if a being isn’t conscious, it’s not clear that there’s a being there that has interests with which we should be concerned, from a legal standpoint or otherwise.

I also note that on theories like Steinbock’s and mine fetuses likely have full moral status by the time they’re 20 weeks-old, if not earlier.

Reply to  Jonathan Reid Surovell
4 years ago

I don’t take Tollefsen to be arguing for 2 by appeal to the risk of the powerful using the law against the non-powerful. That appeal seems to depend, rather, on our taking the unborn to be morally significant, and so to depend on 2. No blog post is going to give an adequate defense of 2, so it’s hardly a surprise that Tollefsen doesn’t give one here (he offers more in its defense elsewhere). Instead he simply lays out the view and offers it as having intuitive appeal. I think it pretty clearly does have some intuitive appeal, in part because it does not exclude infants or cognitively disabled people (as you remark) but is also not over-inclusive in granting the same kind of moral status and claim to legal protection to all sentient animals. But intuitions will differ on both ends, and many incompatible views have some independent intuitive appeal. As I understand him, Tollefsen simply wants to show here that 2 is a plausible view of personhood with some intuitive appeal and that his view with regard to legal protections for the unborn (and so legal restrictions on abortion) is grounded in concern for powerless human beings, and so is in that sense ‘liberal’ (rather than some sort of illiberal plot to control women for the sake of controlling women). He certainly seems right that that fact that some people can’t yet appeal to the powerful to respect and protect their rights isn’t sufficient to show that they don’t deserve that respect and protection. But the case for supposing that they do deserve it rests on other considerations, not on the pragmatic one that the powerful tend to discount the interests of the powerless. Or so I read him, anyway.

Your and Steinbock’s views present a pretty interesting alternative to either of Tollefsen’s 1 or 2, but I do think 1 still gets a whole lot of purchase on people outside of academic philosophy and even on some philosophers who don’t work on these topics. Perhaps it depends on how we read 1; if the actual exercise of “sentience, sapience, emotion, etc.” are all necessary conditions, then many folks would probably balk at it, but if it’s a looser list of features that make a being more or less ‘like us’ in ways relevant to moral status and legal protection, I think it has wide appeal, or so the prevalence of pro-choice arguments appealing to the ways in which fetuses supposedly lack these similarities to us suggests. So it seems reasonable for Tollefsen to start with these two views, provided that he acknowledges (as I take it he would, on the basis of what he’s written elsewhere) that they don’t exhaust the alternatives. To my mind, views like yours and Steinbock’s are clearly the more important alternatives for those who find Tollefsen’s ‘rational nature’ sort of view appealing to consider, since a view like yours seems to capture a whole lot of what makes the ‘rational nature’ view intuitive, but clearly differs from it. The crux of the matter does seem to be whether being conscious is a necessary condition for having interests; Tollefsen and others who defend views like his argue explicitly to the contrary, and I, at least, do not find it intuitively appealing or convincingly grounded in anything else that I find intuitive or otherwise compelling. But intuitions are fickle.

Here’s two questions about your view for clarification:

1) When you write that “it’s not clear that there’s a being there that has interests…” do you mean to be claiming that (a) there may or may not be a being there that has interests, but since it’s unclear we should not operate on the assumption that there is? Or do you mean to claim that (b) there isn’t, or probably isn’t, a being there with interests? (Or some other alternative?)

2) When you write that “it’s not clear that there’s a being there that has interests with which we should be concerned,” do you mean to say that (a) it doesn’t have any interests, so it doesn’t have any interests with which we should be concerned, or that (b) it may have interests of some sort, but not the sort with which we should be concerned?

Jonathan Reid Surovell
Reply to  Anonomastikos
4 years ago

Hi Anonomastikos,

I take your points about the constraints of a blog post, etc. I of course assumed I was just getting a small fragment of Tollefler’s views. I hope to have time to read more.

To answer your questions:

1. I mean the probabilistic version of (b). (There probably isn’t a being there with interests.)

2. I mean (a).

Jonathan Reid Surovell
Reply to  Jonathan Reid Surovell
4 years ago

Come to think of it, since we’re talking about the basis of legal protections here, maybe I’m tying concern too closely to interests. There are things, like monuments or fisheries, that don’t have interests but that it might be a good idea to legally protect. I take it these issues can be set aside in the current context because we’re talking about legally protecting a critter because it’s relevantly similar to us.

J. Bogart
J. Bogart
Reply to  Jonathan Reid Surovell
4 years ago

Why should something that is not X be treated as though it was X because it is possible that it may at some later time be an X? What sort of account of ‘potential’ is at work to achieve this outcome?

Jonathan Reid Surovell
Reply to  J. Bogart
4 years ago

Hi J. Bogart,

That’s an important question. I’m working on answering it, so it might be unwise for me to share my ideas here. But I could email you a brief explanation, if you’re interested.

I will say here that I sometimes see it claimed that something like “potential xs deserve the same treatment as actual xs” is a hidden premise in potentiality views like mine. I think there’s a more plausible principle that we potentiality theorists can rely on and that’s closer to what we’ve had in mind all along. But again, I can’t share the specifics in this venue at this point. Sorry!

David Duffy
David Duffy
4 years ago

No-one has mentioned that female hormonal contraception acts in a significant proportion of cases by preventing successful implantation of the “already conceived unborn child” eg

“…[T]he Supreme Court of Argentina prohibited the production, distribution, and commercialization of Imediat, an Emergency Contraceptive; because of its perceived abortive effects it is considered to violate the right to life, which for the Court begins with the union of the gametes, namely, with fertilization and before implantation [my emph]. A similar line of reasoning was followed by the Ecuadorian Constitutional Court in 2004.” [Hevia 2012]

4 years ago

I would argue the bone marrow hypothetical breaks down when considering viability. Suppose that an individual consented to give a bone marrow transplant to save their friend’s life. The treatment requires constant donation and then after 20 some odd weeks, the Doctor informs the patients that if the healthy patient stopped giving bone marrow transplants at this point there friend may not fully recover, but they would survive. He then informs them that if they wait a few more weeks the sick patient would take longer to recover, but would surely become whole in due time. Perhaps there is room to debate the ethics of stopping treatment when the sick patient will merely survive, but either way, but the healthy patient could reasonably walk away at this point. Again no one would blame the patient for walking away after the doctor was certain they would make a full all be it slower recovery if they persisted a few more weeks. However, the absurdity in this hypo comes in when the doctor informs the patients of their options and the healthy patient responds, I think I’ll kill them instead. This is completely absurd. Even if you imagined that the healthy patient was forced to provide bone marrow up until this point, I can not conceive of any justification to say so no I’ll kill the sick patient instead.

Perhaps this hypo wasn’t meant to address the ethics of late-term abortions or any past the point of viability; however, the hypo completely falls apart when it is taken there. If a fetus could be completely viable or even have a chance at life why choose to kill it? I understand what a heavily debated topic this is I’ve just never found anything remotely convincing for post date of viability abortion.

Nathan Nobis
4 years ago

We developed an introductory, open-access (free) short book on abortion that we hope is ideal for teaching and public engagement on these issues. It came out about a week after this post:

“Thinking Critically About Abortion: Why Most Abortions Aren’t Wrong & Why All Abortions Should Be Legal,” Nathan Nobis & Kristina Grob, Open Philosophy Press, 2019.

Julie Sloane
1 year ago

When I was in Ethics class, it was emphasized that those with the greatest responsibility have the greatest associated rights. Women have carried and delivered life for millennia. There can be no human beings without this selfless act. Some women die delivering, or attempting to deliver, life and yet there are no memorials to these women who have lost their lives. In the United States, there are no special compensations for the suspension of her legal rights while she is pregnant (suspension of her right to drink alcohol, take medications, or engage in risky acts). This would appear to suggest that rather than having more associated rights while pregnant because of the increased responsibility, the pregnant person actually loses rights, in direct conflict with the dictates of ethics. In fact, pregnant people have been arrested for child endangerment and put in prison for acts that would not have been illegal were they not pregnant. How does the philosophical community address this dilemma and how can it be applied to law?