Recent Commentary from Philosophers on Abortion and the Supreme Court


What are philosophers writing recently about abortion and the pending Supreme Court decision, drafted by Justice Samuel Alito, overturning Roe v. Wade and eliminating federal protections of abortion rights?

[Kiki Smith, Untitled (Moons) – detail]

I can keep a running list here, which I’ll update based on what people share via the comments on this post or email.


Some data: “Global and Regional Estimates of Unintended Pregnancy and Abortion,” Guttmacher Institute (via Mark Lance)

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Jonah Dunch
13 days ago

Michael Huemer wrote a blog post on the topic: https://fakenous.net/?p=3010Report

Tarik Gim
12 days ago

I found the Elizabeth Harmon article interesting, and would wonder if others had thoughts about it. It seemed to me like she begged the question in an interesting way: If Amy Coney Barrett is right that the fetus is a person, then the supposed point that ACB is missing (that the pregnant mother is forced into loving her own child) doesn’t carry the kind of moral significance that Harmon seems to propose.

This is because the fetus already is a person (again if ACB is right), and the mother who wants to abort the fetus still should love that fetus, who is a person and therefore her child. What is happening is that the mother, over time, comes to see the fetus at some point as a person and her child, and therefore loves the child. But that should have been happening all along (given that the fetus was always a person) and so forcing the mother to come love the fetus, while perhaps still unfortunately coercive, isn’t as ethically bad as Harmon seems to suggest. It’s only as ethically bad as Harmon suggests given her assumption that the fetus isn’t a child. But she does nothing to support that view, at least here. And so her point loses its force.Report

Jonathan Kendrick
Reply to  Tarik Gim
12 days ago

I think this is an uncharitable and pedantic point. I think that Harman, as I do, takes it to be obvious that early-term fetuses aren’t people. I think the burden of proof should be on the opponent of abortion to show that a fetus, which lacks most (if not all) of the characteristics of personhood, is a person.Report

JDRox
JDRox
Reply to  Jonathan Kendrick
12 days ago

I’d recommend checking your work before calling someone uncharitable and pedantic: https://www.youtube.com/watch?v=sVSuIo9ppYM

And even if Harman did think it was obvious that early-term fetuses weren’t people, it would be odd to assume that in a bit of public philosophy where one of the key questions under consideration is whether early-term fetuses are people.Report

Tarik Gim
Reply to  Jonathan Kendrick
12 days ago

Burden of proof arguments are not always productive, but one reason to think that fetuses are persons is that all human beings are persons, and personhood doesn’t depend on actual capacities and powers. Otherwise, a one year old child (or a person with dementia) is less of a person than you or me and therefore seems to have less of a right to life. But that seems wrong. I know this argument doesn’t settle it, but it is worth some thought. Peace.Report

Owen Schaefer
Owen Schaefer
Reply to  Tarik Gim
12 days ago

Harman’s full view of moral status of fetuses isn’t presented in the Daily News piece – indeed, her view is IMHO one of the most unique and metaphysically complex in the literature. See this article: https://oar.princeton.edu/bitstream/88435/pr1td9n726/1/CreationEthics.pdf . Key principle on p. 311: “The Actual Future Principle: An early fetus that will become a person has some moral status. An early fetus that will die while it is still an early fetus has no moral status.”

But that’s not a widely accepted view, so I take it for the Daily News piece she’s being more ecumenical. Hence the observation “What Barrett misses is that many people don’t see early fetuses as persons.” So Harman is not conceding ACB’s point about personhood, and is leveraging disagreement about personhood to make the point about a form of emotional coercion, forcing into an emotional bond that they would otherwise have the freedom to avoid. I think that ecumenicalism makes the piece somewhat vaguer on its foundations than a proper philosophical analysis, but such is the tradeoff of public philosophy perhaps.

A response to ACB leveraging Harman’s Actual Future Principle would be more complex, not sure if Harman has elsewhere written that up. Here’s what an application might look like (not implying Harman is committed to this, her take may be different; nor do I necessarily endorse it): rescinding Roe v Wade will have the effect of granting many fetuses moral status that would otherwise lack it. (since certain ‘actual futures’ involving fetal death will be shut off) This is objectionable in part because granting moral status to a fetus leads to excessively onerous physical, moral and emotional burdens on the mother. And there couldn’t have been a prior obligation to grant that fetus moral status, since such an obligation would presuppose some moral status in the first place that is precisely contingent on the availability of abortion in the first place.Report

Moti Gorin
Moti Gorin
Reply to  Owen Schaefer
12 days ago

One might also argue that whether a fetus has moral status depends on who determines what kind of future it will have, and then argue that a woman’s decision to carry the fetus to term grants personhood while the state’s (or whoever else’s) decision does not. This has some implausible entailments, though, that would need to be addressed.Report

Wes McMichael
Reply to  Tarik Gim
12 days ago

This arguments seems to hang a lot on our ideas associated with the term “being.” If I replace it with the term “organism” in your argument, it seems to say something false–i.e. all human organisms are persons. For example, teratomas are parasitic human organisms with unique human DNA (and sometimes hair and teeth), but I don’t know if anyone would count them as persons. The first premise fails to motivate the rest of the argument in this rephrasing.

So, if I think of a zygote, embryo, or fetus as an “organism,” rather than a “being,” it seems to blunt the force of this argument. Perhaps, I should put more into my concept of “organism” or others should put less into their concept of “being,” but it certainly doesn’t seem to be locked up by this argument.Report

JDRox
JDRox
Reply to  Wes McMichael
12 days ago

Can you say something more about why you think teratomas are human organisms? I don’t think that description is typical in medicine or science, for whatever that’s worth. Is it just the unique DNA bit?Report

Tarik Gim
Reply to  Wes McMichael
12 days ago

Interesting thought. But when I look up what a teratoma is, I don’t find it being described as a human organism. It seems that it’s a kind of tumor. And it seems plausible that tumors are not persons.Report

Wes McMichael
Reply to  Tarik Gim
12 days ago

Hi JDRox and Tarik,

I honestly didn’t anticipate controversy over defining tumors as human organisms (I couldn’t imagine defining them in any other way), so my defense isn’t very well-formulated. My apologies.

I take it that “organisms” are organized cells that coordinate their activities to grow, specialize, etc. Tumors are organized cells that coordinate their activities to grow, specialize, etc. Their DNA is not canine, feline, etc., but rather human. They depend on their host for food, but so do other parasitic organisms. They are independent of the other cells in the host’s body in that they determine their growth and specialization.

It seems difficult to find a definition of “organism” that would exclude a tumor (and still include everything it typically includes).

Again, my apologies, for not having a sophisticated defense of this idea, as it didn’t seem very controversial to me.Report

JDRox
JDRox
Reply to  Wes McMichael
11 days ago

I haven’t done a deep dive, but some quick research suggests that some people argue that (at least some human) tumors are non-human organisms (https://news.berkeley.edu/2011/07/26/are-cancers-newly-evolved-species/), and some argue that they are (human) organs (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2905377/), but the view that they are human organisms doesn’t appear very popular at least.Report

Tarik Gim
Reply to  Wes McMichael
11 days ago

Wes, why can’t we just go by the dictionary definition of ‘organism’: “an individual animal, plant, or single-celled life form”? That seems to exclude tumors.Report

Wes McMichael
Reply to  Tarik Gim
11 days ago

Hi Tarik,

I assumed that a dictionary definition wouldn’t be particularly helpful, since they merely track the different ways in which people use terms rather than outlining the relevant biological conceptions relevant to this discussion.

Even then, one would be choosing between dictionary definitions, since (i) there isn’t a single dictionary to consult and (ii) dictionary entries typically list several options. It is hard to claim that yours is “*the* dictionary definition of ‘organism'” since there are many dictionaries and several definitions of organism within those dictionaries.

For instance, the copy of the Oxford English Dictionary that I have access to includes your definition verbatim as its third entry, but has the broader “A whole with interdependent parts, compared to a living being; an organic system” as its second entry. That definition less clearly excludes teratomas.

In any event, as I comment below, embryology screws up my intuitions about several of the relevant biological categories, and I don’t have the expertise to clear them up.

I believe my initial point still stands: in your argument above, which you admit “doesn’t settle it,” it appears ‘human being’ is carrying some conceptual baggage that ‘human organism’ or ‘totipotent human cells’ would not carry. This is how I’m thinking your argument “doesn’t settle it,” but maybe you have a different weakness in mind. Either way, we agree that the argument doesn’t settle the matter.Report

JDRox
JDRox
Reply to  Wes McMichael
11 days ago

I haven’t done a deep dive, but some quick research suggests that some people argue that (at least some human) tumors are non-human organisms (https://news.berkeley.edu/2011/07/26/are-cancers-newly-evolved-species/), and some argue that they are (human) organs (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2905377/), but the view that they are human organisms doesn’t appear very popular at least.Report

Wes McMichael
Reply to  JDRox
10 days ago

Hi JDRox,

Sorry I missed this earlier.

I’m obviously fuzzy on the biology. I’m not sure it matters that much, though, as my point all along has been that the term “human being” is conceptually loaded and is generating much of the force of Tarik’s argument (which, again, not even he believes settles the issue of personhood).

I think even my clunky attempt at a biological example demonstrates this (albeit imperfectly). Take this definition of “organism” that I grabbed from a biology textbook: “highly organized, coordinated structures that consist of one or more cells.” There seem to be human organisms that fit this description that we don’t consider persons. My clunky example was of certain types of teratomas that consist (at least, in part) of pluripotent stem cells that are differentiated from all surrounding cells (i.e. genetically distinct). They cells work together as highly coordinated structures that differentiate to create hair, teeth, etc. The cells of these teratomas are not feline, canine, etc. They are human. This, to my lights, is a human organism that would not be considered a person. When I think of an early embryo (say when the single zygote has replicated and split into 16 cells), I think of a highly organized coordinated structure not very different (but maybe at this stage less coordinated) than the teratoma. [Obviously, I would describe and think of the two very differently–my daughter-in-law is pregnant with my second grandchild, and we are so excited to meet him, and I am awed by these particular cells.]

Again, though, I don’t claim expertise in biology, so there might be problems with my example. Still, though, my point is that “human being” is conceptually loaded in the way other descriptions–e.g. organisms–would not be. Further, as I state below, embryology can mess with our intuitions about biological terms. When I think of the single zygote formed moments after the 23 chromosomes in the nucleus of a male gamete and the 23 chromosomes in the nucleus of the female gamete, my idea of organism breaks down, and doesn’t seem to appropriately describe it. The only descriptor that seems appropriate to me is “human cell” or maybe “totipotent human cell,” and it definitely isn’t clear to me that all human cells are persons. This description wouldn’t motivate Tarik’s argument either.

“Human being” is meant to be a neutral descriptor, but I am making the case that it is far from neutral.Report

Wes McMichael
Reply to  Tarik Gim
11 days ago

Also, for what it’s worth, embryology really screws with my intuitions about several biological concepts. When I think of, say, a 23-week gestated fetus, it doesn’t feel as strange to me to apply the concept “human being.” When I rewind the development to say 16 totipotent cells floating in the zona pellucida, “human being” feels less plausible to me than “human organism.” When I rewind that development to the single-cell zygote formed just after the 23 chromosomes of the male gamete fuses with the 23 chromosomes of the female gamete, even “human organism” seems a weird fit. At that point “human cell” feels more appropriate.

All that to say, I really don’t have a great feel for the application of these biological concepts when it comes to embryology, and it seems to me that each are carrying conceptual baggage that is probably making arguments about personhood murky, and I’m definitely not positioned to clarify them.Report

Jonathan Kendrick
Reply to  Tarik Gim
10 days ago

I mean you could have this view, but it’s a very bad view; personhood has to depend on *some* actual capacities. If not, then there’s no principled way of saying something isn’t a person, because there’s always a sense of “possibly” that’s broad enough such that virtually anything can have virtually any capacity. There are also clear disanalogies between an undifferentiated lump of tissue, and a one-year old child. The latter, unlike the former, has beliefs, desires, etc.Report

JDRox
JDRox
Reply to  Jonathan Kendrick
10 days ago

But what do you mean by ‘actual capacity’? A fetus has the capacity to walk in talk in pretty much the same sense as a one month old baby does. If you say neither has the “actual capacity” to walk and talk, then passed-out-drunk people, etc., will (almost certainly) lack whatever actual capacities you think are required for personhood.Report

Wes McMichael
Reply to  Tarik Gim
12 days ago

I’m missing the question-begging. It seems to me that both Barrett and Harman likely agree with the statement “many people don’t see early fetuses as persons.” This is a standard plank in the pro-life side of the abortion debate and both are very well-versed in that debate. Barrett simply believes the people who believe this are wrong, and Harman believes they are right. As far as I can tell, though, whether one believes others are right or wrong about this belief doesn’t play a role in Harman’s argument.

Barrett is responding to a complaint women make about restricting abortion–i.e. it forces them to become mothers against their will. She implies that safe haven laws “take care of that problem” (given that her question is rhetorical).

I read Harman as saying that safe havens do not take care of the problem because many women do not think of early fetuses as persons but those same people believe that human babies are persons. This is a description of a belief some women have about a metaphysical claim, it is not the metaphysical claim itself. Harman points out that people with this belief would be coerced into motherhood because they would love a child to which they gave birth but do not love a fetus in their womb. Therefore, the safe haven laws do not “take care of that problem” as Barrett suggests, because they do not offer a viable solution for many women (just like the workers in her Target example).

I am failing to see any question-begging against Barrett. Perhaps, the sentence “What Barrett misses is that many people don’t see early fetuses as persons” could have been a little more delicately phrased (e.g. “Barrett’s response that safe havens solve the problem of forced motherhood fails to take into account many women do not believe their fetuses are persons to be loved but would definitely believe a child they gave birth to are persons to be loved”), but I don’t see where she hangs anything in her argument on her and Barrett’s metaphysical disagreement. Report

Tarik Gim
Reply to  Wes McMichael
11 days ago

Thanks, this was quite helpful. I think I got the central point wrong and you helpfully contextualized it by drawing on the point about safe haven. I had thought that the main point was really about the wrongness of forcing women who do not see the fetus as a person into becoming mothers (who do eventually see the fetus-entity as a person). But my thought was that the wrongness of that depends on whether or not the fetus really is a person. Thanks for the clarification!Report

Calum Miller
11 days ago

Only some is related to American abortion politics specifically, but I have a fairly comprehensive presentation of the arguments and data from the pro-life side here: https://calumsblog.com/abortion-qa/Report

Bruce P Blackshaw
11 days ago

People might find this paper of interest.

“If fetuses are persons, abortion is a public health crisis”
https://onlinelibrary.wiley.com/doi/10.1111/bioe.12874Report

Louis F. Cooper
10 days ago

I have a slightly pedantic comment on Alito’s leaked draft opinion (which I’ve read parts of). Lots of more basic criticisms of it are, I’m sure, being made elsewhere.

At one point, Alito notes that Roe v. Wade received a lot of scholarly criticism, including from some who might have agreed with its result as a policy matter. He cites John Hart Ely’s remark that Roe “was not constitutional law and gives almost no sense of an obligation to try to be.”

Alito in this connection also quotes a line from Mark Tushnet’s 1988 book Red, White, and Blue, where Tushnet calls Roe a “totally unreasoned judicial opinion.” It so happens that I read Tushnet’s book many years ago and have a hardcover copy on my shelf. Because I read it so long ago, I had no recollection of this line or the surrounding discussion.

I took a look at the passage in question, on p.54 of Red, White, and Blue, and it turns out that Tushnet (I’m simplifying a somewhat more complicated discussion) is criticizing, or at least casting doubt on, the idea of judicial “craft” as used by a certain school of constitutional theory. On p.53 he says that there’s wide agreement that Blackmun’s opinion in Roe was very deficient from the standpoint of “craft,” but then he goes on to suggest that a “more skilled” judge could have reached the same result in a way that would “survive professional criticism….”

Then on p.54 (footnotes omitted), he writes:
“The other difficulty…runs deeper. Craft limitations make sense only if we agree on what the craft is. But consider the craft of ‘writing novels.’ Its practice includes Trollope writing The Eustace Diamonds, Joyce writing Finnegan’s Wake, and Mailer writing The Executioner’s Song. We might think of Justice Blackmun’s opinion in Roe as an innovation akin to Joyce’s or Mailer’s. It is the totally unreasoned judicial opinion. To say that it does not look like Justice Powell’s decision in some other case is like saying that a Cubist ‘portrait’ does not portray its subject in the manner that a member of the academy would paint it. The observation is true but irrelevant to the enterprise in which the artist or judge was engaged and to our ultimate assessment of his or her product.”

Whatever Tushnet is saying here exactly, and regardless of whether one finds it persuasive or not, it seems clear that taking the “totally unreasoned judicial opinion” line out of its context, as Alito does, results in some distortion of what Tushnet meant and of his view of Blackmun’s opinion.Report

David Velleman
10 days ago

The question is not whether an embryo or fetus is a person; the question is what the law should be in a democratic society where there is intractable disagreement on the metaphysics of personhood; where the disagreement falls largely along religious lines; and where the world’s great religions, and the various sects within those religions, are themselves in profound disagreement. The issue raised by Justice Alito’s draft decision — which is the issue dividing the most deeply committed members of the American public — is not the issue debated by professional philosophers, most of whom assume that there is no such thing as an immaterial soul. If Americans were agreed on the question of ensoulment, there would be no controversy to speak of. Philosophers who bypass the question of ensoulment are not taking one side of controversy seriously.Report

David Velleman
Reply to  David Velleman
10 days ago

My reference to “a democratic society” should not be taken to suggest that the issue should be settled by popular vote — not even if there were a reasonable measure of democracy in this country, which there isn’t. My view is that the law should be silent on the issue, as it is (I believe) in a few other countries.Report

Animal Symbolicum
Reply to  David Velleman
10 days ago

But if you’re right, the children don’t get to play their necessary-and-sufficient-conditions game!Report

Non
Non
Reply to  Animal Symbolicum
9 days ago

Great contribution!Report

JDRox
JDRox
Reply to  David Velleman
10 days ago

Disagreement about many issues falls largely along religious lines, but it surely doesn’t follow that the law should be silent on all of them. Or am I misinterpreting your principle?Report

David Velleman
Reply to  JDRox
10 days ago

Well, other issues on which there is religious division usually have *some* non-religious content that philosophers can sink their teeth into. But the issue of ensoulment is religion all the way down.Report

JDRox
JDRox
Reply to  David Velleman
9 days ago

Sure, but the abortion debate isn’t about ensoulment, is it? If we’re souls (or require souls to exist), then who knows when souls are united with bodies? But if we’re animals, then you and I were once early term fetuses, and so if we have our rights essentially and/or all humans have the right to life (both plausible assumptions on purely secular grounds), it follows that we had the RTL when we were early term fetuses. And of course there are other plausible secular arguments, like Marquis’s, or consequentialist arguments, that entail that most abortions are gravely wrong.Report

Brian Cutter
Reply to  David Velleman
9 days ago

Where is the issue of ensoulment mentioned in the draft decision? (A word search for “soul” turns up nothing for me.)Report

Prof L
Reply to  David Velleman
9 days ago

These are dubious principles here—at the right moment, these would also be arguments for the law (or SCOTUS) being silent on slavery, forced sterilization, and a number of other things that depend upon metaphysical views controversial at the time, and tended to divide along religious lines, broadly speaking.

I know it’s weird to say it with this audience, but I do believe that this is a moral blindspot, akin to those.Report

Barbara
7 days ago

I actually like this piece myself. https://thehorizonandthefringe.wordpress.com/Report