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The Philosophical Argument for Life
In response to the growing hostility toward discussion of the abortion issue on campus and dissolution into name-calling, as seen in the impressively consistent vandalism of Harvard Right to Life’s poster campaigns, I’d like to present a philosophical argument for the pro-life position. HRL’s innocuous “Smile, your mom chose life.” posters have been ripped down within hours of posting almost without exception. At a school where free speech and diversity are valued so highly, this is a travesty. However, it seems to follow from the fact that the Harvard community limits its dialogue about abortion to religion and politics. I will set these aside to address the ethics of the situation, without which reasonable discussion is impossible.
The reason there is so much tension and so little understanding between individuals of differing opinions on the abortion issue is that the two sides approach it from completely different angles. The “pro-choice” side emphasizes women and their rights while the pro-life side focuses on the other person involved. We can all agree that women should have control over their bodies—but it is imperative to determine whether or not a second person is involved before we can talk about women’s rights.
The philosophical argument for life has two simple premises one from natural value and one from natural science.
The premise based on natural value is that all human beings have the right to life because they are human. Surprisingly enough, this is the premise that most pro-abortion philosophers will disagree with in the modern debate—they will deny universal values altogether and argue instead that values are simply subjective.
The premise based on natural science is that the life of each individual mammal begins at conception. Modern science has made it nearly impossible to defend the view that the fetus is not human, considering that from the moment of conception it has human DNA, so the issue centers on personhood. If the human is a person only when neurologically functioning as a human, then by that same argument it would be permissible to kill people while they are in deep sleep, in comas, or mentally handicapped. Similar arguments can be made for location and viability. The only time when we can consistently argue the human fetus becomes a person is when he or she becomes human: at conception.
The most compelling argument for abortion is denying that the fetus is a person. If one can do this absolutely, then abortion is not wrong. If one rejects one of the above premises, I’d like to ask him to consider the following quadrilemma. We begin with two new premises: The fetus is a person or is not a person, and we either know it or we don’t know it. We end up with four possible outcomes.
In the first case, the fetus is a person and we know it, so abortion is the deliberate killing of an innocent person. In this case, abortion is murder and therefore is always wrong. Alternatively, if the fetus is a person, but we don’t know it, then abortion is killing a person unintentionally—manslaughter. Even if the fetus is not a person, but we don’t know it, abortion qualifies as criminal negligence. Without perfect certainty that the fetus is not a person, doing anything to endanger its potential personhood is morally indefensible. Only in the final case, if the fetus is not a person and we know it definitively, is abortion morally permissible.
Therefore, if we can’t prove or disprove the personage of the fetus, the strongest argument of the pro-abortion viewpoint becomes one of the strongest philosophical defenses for the pro-life position. Abortion can only be permissible if the fetus is definitively not a person. Those who are pro-life believe that the fetus is a person, but even those who are skeptical of this point should not be advocates of abortion. And those who think they do know, beyond the shadow of a doubt, that the fetus is not human should engage in meaningful dialogue instead of throwing tantrums, calling names, and ripping down posters.
Aurora C. Griffin ’14, a classics concentrator, lives in Pforzheimer House. She is a member of Harvard Right to Life.
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Abortion is a philosophically interesting issue because both sides seem so certain of their conclusions, yet the issue is at the same time clearly a derivative one. It is also highly political, and needs to be seen within the context of the growth of the women's movement. A philosophical overview of the issue in section 1 construes the central claims of the pro-choice and anti-abortion positions as moral and conceptual constructions, which extend everyday moral thinking into the area of abortion. It notes the interesting relation between such constructions and other arguments about abortion, and how this is responsible for their social and historical specificity. Section 2 defends the pro-choice position as a victory of moral sensitivity over linguistic guile. Section 3 situates the argument within the politics of feminism, and recognises the limited contribution which philosophy is able to make.
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An Argument That Abortion Is Wrong by DON MARQUIS
Don Marquis is Professor of Philosophy at the University of Kansas. He defends the view that, except in unusual circumstances, abortion is seriously wrong.
The purpose of this essay is to set out an argument the claim that abortion, except perhaps in instances, is seriously wrong. One reason for these exceptions is to eliminate from consideration cases whose ethical analysis should be controversial detailed for clear-headed opponents of abortion. Such cases include abortion after rape and abortion during the first fourteen days after conception when there is an argument that the fetus is not definitely an individual. Another reason for making these exceptions allow for those cases in which the permissibility of abortion is compatible with the argument of this essay. Such cases include abortion when continuation of a pregnancy endangers a woman's life and when the fetus is anencephalic. When I wrongness of abortion in this essay, a reader she presume the above qualifications. I mean by an abort ion an action intended to bring about the death of a fetus for the sake of the woman who carries it. (Thus, as is standard on the literature on this subject, I eliminanate spontaneous abortions from consideration.) I mean by a fetus a developing human being from
time of conception to the time of birth. (Thus, as is standard, I call embryos and zygotes, fetuses.)
The argument of this essay will establish that abortion is wrong for the same reason as killing a reader of this essay is wrong. I shall just assume, rather than establish, that killing you is seriously wrong. I shall make no attempt to offer a complete ethics of killing. Finally, I shall make no attempt to resolve some very fundamental and difficult general philosophical issues into which this analysis of the ethics of abortion might lead.
WHY THE DEBATE OVER ABORTION SEEMS INTRACTABLE
Symmetries that emerge from the analysis of the major arguments on either side of the abortion debate may explain why the abortion debate seems intractable. Consider the following standard anti-abortion argument: Fetuses are both human and alive. Humans have the right to life. Therefore, fetuses have the right to life. Of course, women have the right to control their own bodies, but the right to life overrides the right of a woman to control her own body. Therefore, abortion is wrong.
Judith Thomson (1971) has argued that even if one grants (for the sake of argument only) that fetuses have the right to life, this argument fails. Thomson invites you to imagine that you have been connected while sleeping, bloodstream to bloodstream, to a famous violinist. The violinist, who suffers from a rare blood disease, will die if disconnected. Thomson argues that you surely have the right to disconnect yourself. She appeals to our intuition that having to lie in bed with a violinist for an indefinite period is too much for morality to demand. She supports this claim by noting that the body being used is your body, not the violinist's body. She distinguishes the right to life, which the violinist clearly has, from the right to use someone else's body when necessary to preserve one's life, which it is not at all obvious the violinist has. Because the case of pregnancy is like the case of the violinist, one is no more morally obligated to remain attached to a fetus than to remain attached to the violinist.
It is widely conceded that one can generate from Thomson's vivid case the conclusion that abortion is morally permissible when a pregnancy is due to rape (Warren, 1973, p. 49; and Steinbock, 1992, p. 79). But this is hardly a general right to abortion. Do Thomson's more general theses generate a more general right to an abortion? Thomson draws our attention to the fact that in a pregnancy, although a fetus uses a woman's body as a life-support system, a pregnant woman does not use a fetus's body as a life-support system. However, an opponent of abortion might draw our attention to the fact that in an abortion the life that is lost is the fetus's, not the woman's. This symmetry seems to leave us with a stand-off.
Thomson points out that a fetus's right to life does not entail its right to use someone else's body to preserve its life. However, an opponent of abortion might point out that a woman's right to use her own body does not entail her right to end someone else's life in order to do what she wants with her body. In reply, one might argue that a pregnant woman's right to control her own body doesn't come to much if it is wrong for her to take any action that ends the life of the fetus within her. However, an opponent of abortion can argue that the fetus's right to life doesn't come to much if a pregnant woman can end it when she chooses. The consequence of all of these symmetries seems to be a stand-off. But if we have the stand-off, then one might argue that we are left with a conflict of rights: a fetal right to life versus the right of a woman to control her own body. One might then argue that the right to life seems to be a stronger right than the right to control one's own body in the case of abortion because the loss of one's life is a greater loss than the loss of the right to control one's own body in one respect for nine months. Therefore, the right to life overrides the right to control one's own body and abortion is wrong. Considerations like these have suggested to both opponents of abortion and supporters of choice that a Thomsonian strategy for de-
fending a general right to abortion will not succeed (Tooley, 1972; Warren, 1973; and Steinbock, 1992). In fairness, one must note that Thomson did not intend her strategy to generate a general moral permissibility of abortion.
Do Fetuses Have the Right to Life?
The above considerations suggest that whether abortion is morally permissible boils down to the question of whether fetuses have the right to life. An argument that fetuses either have or lack the right to life must be based upon some general criterion for having or lacking the right to life. Opponents of abortion, on the one hand, look around for the broadest possible plausible criterion, so that fetuses will fall under it. This explains why classic arguments against abortion appeal to the criterion of being human (Noonan, 1970; Beckwith, 1993). This criterion appears plausible: The claim that all humans, whatever their race, gender, religion or age, have the right to life seems evident enough. In addition, because the fetuses we are concerned with do not, after all, belong to another species, they are clearly human. Thus, the syllogism that generates the conclusion that fetuses have the right to life is apparently sound.
On the other hand, those who believe abortion is morally permissible wish to find a narrow, but plausible, criterion for possession of the right to life so that fetuses will fall outside of it. This explains, in part, why the standard pro-choice arguments in the philosophical literature appeal to the criterion of being a person (Feinberg, 1986; Tooley, 1972; Warren, 1973; Benn, 1973; Engelhardt, 1986). This criterion appears plausible: The claim that only persons have the right to life seems evident enough. Furthermore, because fetuses neither are rational nor possess the capacity to communicate in complex ways nor,possess a concept of self that continues through time, no fetus is a person. Thus, the syllogism needed to generate the conclusion that no fetus possesses the right to life is apparently sound. Given that no fetus possesses the right to life, a woman's right to control her own body easily generates the general right to abortion. The existence of two apparently defensible syllogisms which support contrary conclusions helps to explain why partisans on both sides of the abortion dispute often regard their opponents as either morally depraved or mentally deficient.
Which syllogism should we reject? The anti-abortion syllogism is usually attacked by attacking its major premise: the claim that whatever is biologically human has the right to life. This premise is subject to scope problems because the class of the biologically human includes too much: human cancer-cell cultures are biologically human, but they do not have the right to life. Moreover, this premise also is subject to moral-relevance problems: the connection between the biological and the moral is merely assumed. It is hard to think of a good argument for such a connection. If one wishes to consider the category of "human" a moral category, as some people find it plausible to do in other contexts, then one is left with no way of showing that the fetus is fully human without begging the question. Thus, the classic anti-abortion argument appears subject to fatal difficulties.
These difficulties with the classic anti-abortion argument are well known and thought by many to be conclusive. The symmetrical difficulties with the classic pro-choice syllogism are not as well recognized. The pro-choice syllogism can be attacked by attacking its major premise: Only persons have the right to life. This premise is subject to scope problems because the class of persons includes too little: infants, the severely retarded, and some of the mentally ill seem to fall outside the class of persons as the supporter of choice understands the concept. The premise is also subject to moral-relevance problems:
Being a person is understood by the pro-choicer as having certain psychological attributes. If the prochoicer questions the connection between the biological and the moral, the opponent of abortion can question the connection between the psychological and the moral. If one wishes to consider "person" a moral category, as is often done, then one is left with no way of showing that the fetus is not a person without begging the question.
Pro-choicers appear to have resources for dealing with their difficulties that opponents of abortion lack. Consider their moral-relevance problem. A pro-
choicer might argue that morality rests on contractual foundations and that only those who have the psychological attributes of persons are capable of entering into the moral contract and, as a consequence, being a member of the moral community. (This is essentially Engelhardt's  view.) The great advantage of this contractarian approach to morality is that it seems far more plausible than any approach the anti-abortionist can provide. The great disadvantage of this contractarian approach to morality is that it adds to our earlier scope problems by leaving it unclear how we can have the duty not to inflict pain and suffering on animals.
Contractarians have tried to deal with their scope problems by arguing that duties to some individuals who are not persons can be justified even though those individuals are not contracting members of the moral community. For example, Kant argued that, although we do not have direct duties to animals, we "must practice kindness towards animals, for he who is cruel to animals becomes hard also in his dealings with men" (Kant, 1963, p. 240). Feinberg argues that infanticide is wrong, not because infants have the right to life, but because our society's protection of infants has social utility. If we do not treat infants with tenderness and consideration, then when they are persons they will be worse off and we will be worse off also (Feinberg, 1986, p. 271).
These moves only stave off the difficulties with the pro-choice view; they do not resolve them. Consider Kant's account of our obligations to animals. Kantians certainly know the difference between persons and animals. Therefore, no true Kantian would treat persons as she would treat animals. Thus, Kant's defense of our duties to animals fails to show that Kantians have a duty not to be cruel to animals. Consider Feinberg's attempt to show that infanticide is wrong even though no infant is a person. All Feinerg really shows is that it is a good idea to treat with care and consideration the infants we intend to keep. That is quite compatible with killing the infants we intend to discard. This point can be supported by an analogy with which any pro-choicer will agree. There are plainly good reasons to treat with care and consideration the fetuses we intend to keep. This is quite compatible with aborting those fetuses we intend to discard. Thus, Feinberg's account of the wrongness of infanticide is inadequate.
Accordingly, we can see that a contractarian defense of the pro-choice personhood syllogism fails. The problem arises because the contractarian cannot account for our duties to individuals who are not persons, whether these individuals are animals or infants. Because the pro-choicer wishes to adopt a narrow criterion for the right to life so that fetuses will not be included, the scope of her major premise is too narrow. Her problem is the opposite of the problem the classic opponent of abortion faces.
The argument of this section has attempted to establish, albeit briefly, that the classic anti-abortion argument and the pro-choice argument favored by most philosophers both face problems that are mirror images of one another. A stand-off results. The abortion debate requires a different strategy.
THE "FUTURE LIKE OURS" ACCOUNT OF THE WRONGNESS OF KILLING
Why do the standard arguments in the abortion debate fail to resolve the issue? The general principles to which partisans in the debate appeal are either truisms most persons would affirm in the absence of much reflection, or very general moral theories. All are subject to major problems. A different approach is needed.
Opponents of abortion claim that abortion is wrong because abortion involves killing someone like us, a human being who just happens to be very young. Supporters of choice claim that ending the life of a fetus is not in the same moral category as ending the life of an adult human being. Surely this controversy cannot be resolved in the absence of an account of what it is about killing us that makes killing us wrong. On the one hand, if we know what property we possess that makes killing us wrong, then we can ask whether fetuses have the same property. On the other hand, suppose that we do not know what it is about us that makes killing us wrong. If this
is so, we do not understand even easy cases in which killing is wrong. Surely, we will not understand the ethics of killing fetuses, for if we do not understand easy cases, then we will not understand hard cases. Both pro-choicer and anti-abortionist agree that it is obvious that it is wrong to kill us. Thus, a discussion of what it is about us that makes killing us not only wrong, but seriously wrong, seems to be the right place to begin a discussion of the abortion issue.
Who is primarily wronged by a killing? The wrong of killing is not primarily explained in terms of the loss to the family and friends of the victim. Perhaps the victim is a hermit. Perhaps one's friends find it easy to make new friends. The wrong of killing is not primarily explained in terms of the brutalization of the killer. The great wrong to the victim explains the brutalization, not the other way around. The wrongness of killing us is understood in terms of what killing does to us. Killing us imposes on us the misfortune of premature death. That misfortune underlies the wrongness.
Premature death is a misfortune because when one is dead, one has been deprived of life. This misfortune can be more precisely specified. Premature death cannot deprive me of my past life. That part of my life is already gone. If I die tomorrow or if I live thirty more years my past life will be no different. It has occurred on either alternative. Rather than my past, my death deprives me of my future, of the life that I would have lived if I had lived out my natural life span.
The loss of a future biological life does not explain the misfortune of death. Compare two scenarios: In the former I now fall into a coma from which I do not recover until my death in thirty years. In the latter I die now. The latter scenario does not seem to describe a greater misfortune than the former.
The loss of our future conscious life is what underlies the misfortune of premature death. Not any future conscious life qualifies, however. Suppose that I am terminally ill with cancer. Suppose also that pain and suffering would dominate my future conscious life. If so, then death would not be a misortune for me.
Thus, the misfortune of premature death consists of the loss to us of the future goods of consciousness.
What are these goods? Much can be said about this issue, but a simple answer will do for the purposes of this essay. The goods of life are whatever we get out of life. The goods of life are those items toward which we take a "pro" attitude. They are completed projects of which we are proud, the pursuit of our goals, aesthetic enjoyments, friendships, intellectual pursuits, and physical pleasures of various sorts. The goods of life are what makes life worth living. In general, what makes life worth living for one person will not be the same as what makes life worth living for another. Nevertheless, the list of goods in each of our lives will overlap. The lists are usually different in different stages of our lives.
What makes the goods of my future good for me? One possible, but wrong, answer is my desire for those goods now. This answer does not account for those aspects of my future life that I now believe I will later value, but about which I am wrong. Neither does it account for those aspects of my future that I will come to value, but which I don't value now. What is valuable to the young may not be valuable to the middle-aged. What is valuable to the middle-aged may not be valuable to the old. Some of life's values for the elderly are best appreciated by the elderly. Thus it is wrong to say that the value of my future to me is just what I value now. What makes my future valuable to me are those aspects of my future that I will (or would) value when I will (or would) experience them, whether I value them now or not.
It follows that a person can believe that she will have a valuable future and be wrong. Furthermore, a person can believe that he will not have a valuable future and also be wrong. This is confirmed by our attitude toward many of the suicidal. We attempt to save the lives of the suicidal and to convince them that they have made an error in judgment. This does not mean that the future of an individual obtains value from the value that others confer on it. It means that, in some cases, others can make a clearer judgment of the value of a person's future to that person than the person herself. This often happens when one's judgment concerning the value of one's own future is clouded by personal tragedy. (Compare the views of McInerney, 1990, and Shirley, 1995.)
Thus, what is sufficient to make killing us wrong,
in general, is that it causes premature death. Premature death is a misfortune. Premature death is a misfortune, in general, because it deprives an individual of a future of value. An individual's future will be valuable to that individual if that individual will come, or would come, to value it. We know that killing us is wrong. What makes killing us wrong, in general, is that it deprives us of a future of value. Thus, killing someone is wrong, in general, when it deprives her of a future like ours. I shall call this "an FLO."
ARGUMENTS IN FAVOR OF THE FLO THEORY
At least four arguments support this FLO account of the wrongness of killing.
The Considered Judgment Argument
The FLO account of the wrongness of killing is correct because it fits with our considered judgment concerning the nature of the misfortune of death. The analysis of the previous section is an exposition of the nature of this considered judgment. This judgment can be confirmed. If one were to ask individuals with AIDS or with incurable cancer about the nature of their misfortune, I believe that they would say or imply that their impending loss of an FLO makes their premature death a misfortune. If they would not, then the FLO account would plainly be wrong.
The Worst of Crimes Argument
The FLO account of the wrongness of killing is correct because it explains why we believe that killing is one of the worst of crimes. My being killed deprives me of more than does my being robbed or beaten or harmed in some other way because my being killed deprives me of all of the value of my future, not merely part of it. This explains why we make the penalty for murder greater than the penalty for other crimes.
As a corollary the FLO account of the wrongness of killing also explains why killing an adult human being is justified only in the most extreme circumstances, only in circumstances in which the loss of life to an individual is outweighed by a worse outcome if that life is not taken. Thus, we are willing to justify killing in self-defense, killing in order to save one's own life, because one's loss if one does not kill in that situation is so very great. We justify killing in a just war for similar reasons. We believe that capital punishment would be justified if, by having such an institution, fewer premature deaths would occur. The FLO account of the wrongness of killing does not entail that killing is always wrong. Nevertheless, the FLO account explains both why killing is one of the worst of crimes and, as a corollary, why the exceptions to the wrongness of killing are so very rare. A correct theory of the wrongness of killing should have these features.
The Appeal to Cases Argument
The FLO account of the wrongness of killing is correct because it yields the correct answers in many life-any-death cases that arise in medicine and have interested philosophers.
Consider medicine first. Most people believe that it is not wrong deliberately to end the life of a person who is permanently unconscious. Thus we believe that it is not wrong to remove a feeding tube or a ventilator from a permanently comatose patient, knowing that such a removal will cause death. The FLO account of the wrongness of killing explains why this is so. A patient who is permanently unconscious cannot have a future that she would come to value, whatever her values. Therefore, according to the FLO theory of the wrongness of killing, death could not, ceteris paribus, be a misfortune to her. Therefore, removing the feeding tube or ventilator does not wrong her.
By contrast, almost all people believe that it is wrong, ceteris paribus, to withdraw medical treatment from patients who are temporarily unconscious. The FLO account of the wrongness of killing also explains why this is so. Furthermore, these two unconsciousness cases explain why the FLO account of the wrongness of killing does not include present consciousness as a necessary condition for the wrongness of killing.
Consider now the issue of the morality of legalizing active euthanasia. Proponents of active euthanasia argue that if a patient faces a future of intractable pain and wants to die, then, ceteris paribus, it would not be wrong for a physician to give him medicine that she knows would result in his death. This view is so universally accepted that even the strongest opponents of active euthanasia hold it. The official Vatican view (Sacred Congregation, 1980) is that it is permissible for a physician to administer to a patient morphine sufficient (although no more than sufficient) to control his pain even if she foresees that the morphine will result in his death. Notice how nicely the FLO account of the wrongness of killing explains this unanimity of opinion. A patient known to be in severe intractable pain is presumed to have a future without positive value. Accordingly, death would not be a misfortune for him and an action that would (foreseeably) end his life would not be wrong.
Contrast this with the standard emergency medical treatment of the suicidal. Even though the suicidal have indicated that they want to die, medical personneI will act to save their lives. This supports the view that it is not the mere desire to enjoy an FLO which is crucial to our understanding of the wrongness of killing. Having an FLO is what is crucial to the account, although one would, of course, want to make an exception in the case of fully autonomous people who refuse life-saving medical treatment. Opponents of abortion can, of course, be willing to make an exception for fully autonomous fetuses who refuse life support.
The FLO theory of the wrongness of killing also deals correctly with issues that have concerned philosophers. It implies that it would be wrong to kill (peaceful) persons from outer space who come to visit our planet even though they are biologically utterly unlike us. Presumably, if they are persons, then they will have futures that are sufficiently like ours so that it would be wrong to kill them. The FLO account of the wrongness of killing shares this feature with the personhood views of the supporters of choice. Classical opponents of abortion who locate the wrongness of abortion somehow in the biological humanity of a fetus cannot explain this.
The FLO account does not entail that there is another species of animals whose members ought not to be killed. Neither does it entail that it is permissible to kill any non-human animal. On the one hand, a supporter of animals' rights might argue that since some non-human animals have a future of value, it is wrong to kill them also, or at least it is wrong to kill them without a far better reason than we usually have for killing non-human animals. On the other hand, one might argue that the futures of non-human animals are not sufficiently like ours for the FLO account to entail that it is wrong to kill them. Since the FLO account does not specify which properties a future of another individual must possess so that killing that individual is wrong, the FLO account is indeterminate with respect to this issue. The fact that the FLO account of the wrongness of killing does not give a determinate answer to this question is not a flaw in the theory. A sound ethical account should yield the right answers in the obvious cases; it should not be required to resolve every disputed question.
A major respect in which the FLO account is superior to accounts that appeal to the concept of person is the explanation the FLO account provides of the wrongness of killing infants. There was a class of infants who had futures that included a class of events that were identical to the futures of the readers of this essay. Thus, reader, the FLO account explains why it was as wrong to kill you when you were an infant as it is to kill you now. This account can be generalized to almost all infants. Notice that the wrongness of killing infants can be explained in the absence of an account of what makes the future of an individual sufficiently valuable so that it is wrong to kill that individual. The absence of such an account explains why the FLO account is indeterminate with respect to the wrongness of killing nonhuman animals.
If the FLO account is the correct theory of the wrongness of killing, then because abortion involves killing fetuses and fetuses have FLOs for exactly the same reasons that infants have FLOs, abortion is presumptively seriously immoral. This inference lays the necessary groundwork for a fourth argument
in favor of the FLO account that shows that abortion IS wrong.
The Analogy with Animals Argument
Why do we believe it is wrong to cause animals suffering? We believe that, in our own case and in the case of other adults and children, suffering is a misfortune. It would be as morally arbitrary to refuse to acknowledge that animal suffering is wrong as it would be to refuse to acknowledge that the suffering of persons of another race is wrong. It is, on reflection, suffering that is a misfortune, not the suffering of white males or the suffering of humans. Therefore, infliction of suffering is presumptively wrong no matter on whom it is inflicted and whether it is inflicted on persons or nonpersons. Arbitrary restrictions on the wrongness of suffering count as racism or speciesism. Not only is this argument convincing on its own, but it is the only way of justifying the wrongness of animal cruelty. Cruelty toward animals is clearly wrong. (This famous argument is due to Singer, 1979.)
The FLO account of the wrongness of abortion is analogous. We believe that, in our own case and the cases of other adults and children, the loss of a future of value is a misfortune. It would be as morally arbitrary to refuse to acknowledge that the loss of a future of value to a fetus is wrong as to refuse to acknowledge that the loss of a future of value to Jews (to take a relevant twentieth-century example) is wrong. It is, on reflection, the loss of a future of value that is a misfortune; not the loss of a future of value to adults or Joss of a future of value to nonJews. To deprive someone of a future of value is wrong no matter on whom the deprivation is inflicted and no matter whether the deprivation is inflicted on persons or nonpersons. Arbitrary restrictions on the wrongness of this deprivation count as racism, genocide or ageism. Therefore, abortion is wrong. This argument that abortion is wrong should be convincing because it has the same form as the argument for the claim that causing pain and suffering to non-human animals is wrong. Since the latter argument is convincing, the former argument should be also. Thus, an analogy with animals supports the thesis that abortion is wrong.
REPLIES TO OBJECTIONS
The four arguments in the previous section establish that abortion is, except in rare cases, seriously immoral. Not surprisingly, there are objections to this view. There are replies to the four most important objections to the FLO argument for the immorality of abortion.
The Potentiality Objection
The FLO account of the wrongness of abortion is a potentiality argument. To claim that a fetus has an FLO is to claim that a fetus now has the potential to be in a state of a certain kind in the future. It is not to claim that all ordinary fetuses will have FLOs. Fetuses who are aborted, of course, will not. To say that a standard fetus has an FLO is to say that a standard fetus either will have or would have a life it will or would value. To say that a standard fetus would have a life it would value is to say that it will have a life it will value if it does not die prematurely. The truth of this conditional is based upon the nature of fetuses (including the fact that they naturally age) and this nature concerns their potential.
Some appeals to potentiality in the abortion debate rest on unsound inferences. For example, one may try to generate an argument against abortion by arguing that because persons have the right to life, potential persons also have the right to life. Such an argument is plainly invalid as it stands. The premise one needs to add to make it valid would have to be something like: "If Xs have the right to Y, then potential Xs have the right to Y." This premise is plainly false. Potential presidents don't have the rights of the presidency; potential voters don't have the right to vote.
In the FLO argument potentiality is not used in order to bridge the gap between adults and fetuses as is done in the argument in the above paragraph. The FLO theory of the wrongness of killing adults is
based upon the adult's potentiality to have a future of value. Potentiality is in the argument from the very beginning. Thus, the plainly false premise is not required. Accordingly, the use of potentiality in the FLO theory is not a sign of an illegitimate inference.
The Argument from Interests
A second objection to the FLO account of the immorality of abortion involves arguing that even though fetuses have FLOs, non sentient fetuses do not meet the minimum conditions for having any moral standing at all because they lack interests. Steinbock (1992, p. 5) has presented this argument clearly:
Beings that have moral status must be capable of caring about what is done to them. They must be capable of being made, if only in a rudimentary sense, happy or miserable, comfortable or distressed. Whatever reasons we may have for preserving or protecting non sentient beings, these reasons do not refer to their own interests. For without conscious awareness, beings cannot have interests. Without interests, they cannot have a welfare of their own. Without a welfare of their own, nothing can be done for their sake. Hence, they lack moral standing or status.
Medical researchers have argued that fetuses do not become sentient until after 22 weeks of gestation (Steinbock, 1992, p. 50). If they are correct, and if Steinbock's argument is sound, then we have both an objection to the FLO account of the wrongness of abortion and a basis for a view on abortion minimally acceptable to most supporters of choice.
Steinbock's conclusion conflicts with our settled moral beliefs. Temporarily unconscious human beings are nonsentient, yet no one believes that they lack either interests or moral standing. Accordingly, neither conscious awareness nor the capacity for conscious awareness is a necessary condition for having interests.
The counter-example of the temporarily unconscious human being shows that there is something internally wrong with Steinbock's argument. The difficulty stems from an ambiguity. One cannot take an interest in something without being capable of caring about what is done to it. However, something can be in someone's interest without that individual being capable of caring about it, or about anything. Thus, life support can be in the interests of a temporarily unconscious patient even though the temporarily unconscious patient is incapable of taking an interest in that life support. If this can be so for the temporarily unconscious patient, then it is hard to see why it cannot be so for the temporarily unconscious (that is, non sentient) fetus who requires placental life support. Thus the objection based on interests fails.
The Problem of Equality
The FLO account of the wrongness of killing seems to imply that the degree of wrongness associated with each killing varies inversely with the victim's age. Thus, the FLO account of the wrongness of killing seems to suggest that it is far worse to kill a five-yearold than an 89-year-old because the former is deprived of far more than the latter. However, we believe that all persons have an equal right to life. Thus, it appears that the FLO account of the wrongness of killing entails an obviously false view (Paske, 1994).
However, the FLO account of the wrongness of killing does not, strictly speaking, imply that it is worse to kill younger people than older people. The FLO account provides an explanation of the wrongness of killing that is sufficient to account for the serious presumptive wrongness of killing. It does not follow that killings cannot be wrong in other ways. For example, one might hold, as does Feldman (1992, p. 184), that in addition to the wrongness of killing that has its basis in the future life of which the victim is deprived, killing an individual is also made wrong by the admirability of an individual's past behavior. Now the amount of admirability will presumably vary directly with age, whereas the amount of deprivation will vary inversely with age. This tends to equalize the wrongness of murder.
However, even if, ceteris paribus , it is worse to kill younger persons than older persons, there are
good reasons for adopting a doctrine of the equality of murder. Suppose that we tried to estimate the seriousness of a crime of murder by appraising the value of the FLO of which the victim had been deprived. How would one go about doing this? In they first place, one would be confronted by the old problem of interpersonal comparisons of utility. Second place, estimation of the value of a would involve putting oneself, not into the shoes of the victim at the time she was killed, but rather into the shoes the victim would have worn had the victim survived, and then estimating from that perspective the worth of that person's future. This task difficult, if not impossible. Accordingly, there are reasons to adopt a convention that murders equally wrong.
Furthermore, the FLO theory, in a way, explains why we do adopt the doctrine of the legal equity of murder. The FLO theory explains why we murder as one of the worst of crimes, since depriving someone of a future like ours deprives more than depriving her of anything else. This gives us a reason for making the punishment for younger victims very harsh, as harsh as is compatible with civiliazed society. One should not make the punishment younger victims harsher than that. Thus, the doctrine of the equal legal right to life does not seem incompatible with the FLO theory.
The Contraception Objection
The strongest objection to the FLO argument immorality of abortion is based on the claim that, because contraception results in one less FLO, the FLO argument entails that contraception, indeed, abstention from sex when conception is possible, is immoral. Because neither contraception nor abstention from sex when conception is possible is immoral, the FLO account is flawed.
There is a cogent reply to this objection. If argument of the early part of this essay is correct, then the central issue concerning the morality of abortion is the problem of whether fetuses are individuals who are members of the class of individuals whom it is seriously presumptively wrong to kill. The properties of being human and alive, of being a person, and of having an FLO are criteria that participants in the abortion debate have offered to mark off the relevant class of individuals. The central claim of this essay is that having an FLO marks off the relevant class of individuals. A defender of the FLO view could, therefore, reply that since, at the time of contraception, there is no individual to have an FLO, the FLO account does not entail that contraception is wrong. The wrong of killing is primarily a wrong to the individual who is killed; at the time of contraception there is no individual to be wronged.
However, someone who presses the contraception objection might have an answer to this reply. She might say that the sperm and egg are the individuals deprived of an FLO at the time of contraception. Thus, there are individuals whom contraception deprives of an FLO and if depriving an individual of an FLO is what makes killing wrong, then the FLO theory entails that contraception is wrong.
There is also a reply to this move. In the case of abortion, an objectively determinate individual is the subject of harm caused by the loss of an FLO. This individual is a fetus. In the case of contraception, there are far more candidates (see Norcross, 1990). Let us consider some possible candidates in order of the increasing number of individuals harmed: (1) The single harmed individual might be the combination of the particular sperm and the particular egg that would have united to form a zygote if contraception had not been used. (2) The two harmed individuals might be the particular sperm itself, and, in addition, the ovum itself that would have physically combined to form the zygote. (This is modeled on the double homicide of two persons who would otherwise in a short time fuse. (1) is modeled on harm to a single entity some of whose parts are not physically contiguous, such as a university. (3) The many harmed individuals might be the millions of combinations of sperm and the released ovum whose (small) chances of having an FLO were reduced by the successful contraception. (4) The even larger class of harmed individuals (larger by one) might be the class consisting of all of the individual sperm in an ejaculate and, in addition, the individual ovum released at the time of the successful contraception. (1) through (4) are all candidates for being the subject(s) of harm in the case of successful contraception or abstinence from sex. Which should be chosen? Should we hold a lottery? There seems to be no non-arbitrarily determinate subject of harm in the case of successful contraception. But if there is no such subject of harm, then no determinate thing was harmed. If no determinate thing was harmed, then (in the case of contraception) no wrong has been done. Thus, the FLO account of the wrongness of abortion does not entail that contraception is wrong.
This essay contains an argument for the view that, except in unusual circumstances, abortion is seriously wrong. Deprivation of an FLO explains why killing adults and children is wrong. Abortion deprives fetuses of FLOs. Therefore, abortion is wrong. This argument is based on an account of the wrongness of killing that is a result of our considered judgment of the nature of the misfortune of premature death. It accounts for why we regard killing as one of the worst of crimes. It is superior to alternative accounts of the wrongness of killing that are intended to provide insight into the ethics of abortion. This account of the wrongness of killing is supported by the way it handles cases in which our moral judgments are settled. This account has an analogue in the most plausible account of the wrongness of causing animals to suffer. This account makes no appeal to religion. Therefore, the FLO account shows that abortion, except in rare instances, is seriously wrong.
Beckwith, F. J., Politically Correct Death: Answering Arguments for Abortion Rights (Grand Rapids, Michigan: Baker Books, 1993).
Benn, S. 1., "Abortion, Infanticide, and Respect for Persons," The Problem of Abortion, ed. J. Feinberg (Belmont, California: Wadsworth, 1973), pp. 92-104.
Engelhardt, Jr, H. T., The Foundations of Bioethics (New York: Oxford University Press, 1986).
Feinberg, J., "Abortion," Matters of Life and Death: New Introductory Essays in Moral Philosophy, ed. T. Regan (New York: Random House, 1986).
Feldman, F., Confrontations with the Reaper: A Philosophical Study of the Nature and Value of Death (New York: Oxford University Press, 1992).
Kant, I., Lectures on Ethics, trans. L. Infeld ( New York: Harper, 1963).
Marquis, D. B., "A Future like Ours and the Concept of Person: a Reply to Mcinerney and Paske," The Abortion Controversy: A Reader, ed. L. P. Pojman and F. J. Beckwith (Boston: Jones and Bartlett, 1994), pp. 354-68.
---, "Fetuses, Futures and Values: a Reply to Shirley," Southwest Philosophy Review II (1995): 263-5.
---, "Why Abortion Is Immoral," Joumal of Philosophy 86 (1989): 183-202.
McInerney, P., "Does a Fetus Already Have a Future like Ours?," Journal of Philosophy 87 (1990): 264-8.
Noonan, J., "An Almost Absolute Value in History," in The Morality of Abortion, ed. J. Noonan (Cambridge, MA: Harvard University Press, 1970).
Norcross, A., "Killing, Abortion, and Contraception: a Reply to Marquis," Journal of Philosophy 87 (1990): 268-77.
Paske, G., "Abortion and the Neo-natal Right to Life: a Critique of Marquis's Futurist Argument," The Abortion Controversy: A Reader, ed. L. P. Pojman and F. J. Beckwith (Boston: Jones and Bartlett, 1994), pp. 343-53.
Sacred Congregation for the Propagation of the Faith, Declaration on Euthanasia (Vatican City, 1980).
Shirley, E. S., "Marquis' Argument Against Abortion: a Critique," Southwest Philosophy Review II (1995): 79-89.
Singer, P., "Not for Humans Only: the Place of Non humans in Environmental Issues," Ethics and Problems of the 2 I st Century, ed. K. E. Goodpaster and K. M. Sayre (South Bend: Notre Dame University Press, 1979).
Steinbock, B., Life Before Birth: The Moral and Legal Status of Embryos and Fetuses (New York: Oxford University Press, 1992).
Thomson, J. J., "A Defense of Abortion," Philosophy and Public Affairs I (1971): 47-66.
Tooley, M., "Abortion and Infanticide," Philosophy and Public Affairs 2 (1972): 37-65.
Warren, M. A., "On the Moral and Legal Status of Abortion," Monist 57 (1973): 43-61.
Four pro-life philosophers make the case against abortion
To put it mildly, the American Philosophical Association is not a bastion of pro-life sentiment. Hence, I was surprised to discover that the A.P.A. had organized a pro-life symposium, “New Pro-Life Bioethics,” at our annual conference this month in Philadelphia. Hosted by Jorge Garcia (Boston College), the panel featured the philosophers Celia Wolf-Devine (Stonehill College), Anthony McCarthy (Bios Centre in London) and Francis Beckwith (Baylor University), all of whom presented the case against abortion in terms of current political and academic values.
Recognizing the omnipresent call for a “welcoming” society, Ms. Wolf-Devine explored contemporary society’s emphasis on the virtue of inclusion and the vice of exclusion. The call for inclusion emphasizes the need to pay special attention to the more vulnerable members of society, who can easily be treated as non-persons in society’s commerce. She argued that our national practice of abortion, comparatively one of the most extreme in terms of legal permissiveness, contradicts the good of inclusion by condemning an entire category of human beings to death, often on the slightest of grounds. There is something contradictory in a society that claims to be welcoming and protective of the vulnerable but that shows a callous indifference to the fate of human beings before the moment of birth.
There is something contradictory in a society that claims to be protective of the vulnerable but shows a callous indifference to the fate of human beings before the moment of birth.
Mr. McCarthy’s paper tackled the question of abortion from the perspective of equality. A common egalitarian argument in favor of abortion and the funding thereof goes something like this: If a woman has an unwanted pregnancy and is denied access to abortion, she might be required to sacrifice educational and work opportunities. Since men do not become pregnant, they face no such obstacles to pursuing their professional goals. Restrictions to abortion access thus places women in a position of inequality with men.
Mr. McCarthy counter-argued that, in fact, the practice of abortion creates a certain inequality between men and women since it does not respect the experiences, such as pregnancy, which are unique to women. Some proponents of abortion deride pregnancy as a malign condition. A disgruntled audience member referred to pregnant women as “incubators.” Mr. McCarthy argued that authentic gender equality involves respect for what makes women different, including support for the well-being of both women and children through pregnancy, childbirth and beyond. He pointed out that in his native England, pregnant women acting as surrogates are given a certain amount of time after birth to decide whether to keep the child they bore and not fulfill the conditions of the surrogacy contract. This is done out of acknowledgment of the gender-specific biological and emotional changes undergone by a woman who has nurtured a child in the womb.
The most compelling argument against abortion remains what it has been for decades: Directly killing innocent human beings is gravely unjust.
Mr. Beckwith explored the question of abortion in light of the longstanding philosophical dispute concerning the “criteria of personhood.” The question of which human beings count as persons is closely yoked to the political question of which human beings will receive civil protection and which can be killed without legal penalty. The personhood criteria range from the most inclusive (genetic identity as a member of the species Homo sapiens ) to the more restrictive (evidence of consciousness) to the most exclusionary (evidence of rationality and self-motivating behavior).
Mr. Beckwith has long used the argument from personal identity (the continuity between my mature, conscious self and my embryonic, fetal and childhood self and my future older, possibly demented self) to make the case against abortion, infanticide and euthanasia. To draw the line between personhood and non-personhood after conception or before natural death is to make an arbitrary distinction—and a lethal one at that. Mr. Beckwith noted, however, that none of the usual candidates for a criterion of personhood is completely satisfying. Even the common pro-life argument from species membership could, unamended, smack of a certain materialism.
The most compelling argument against abortion remains what it has been for decades: Directly killing innocent human beings is gravely unjust. Abortion is the direct killing of innocent human beings. But political debate rarely proceeds by such crystalline syllogisms. The aim of the A.P.A.’s pro-life symposium was to amplify the argument by showing how our practice of abortion brutally violates the values of inclusion, equality and personhood that contemporary society claims to cherish. In the very month we grimly commemorate Roe v. Wade, such new philosophical directions are welcome winter light.
John J. Conley, S.J., is a Jesuit of the Maryland Province and a regular columnist for America . He is the current Francis J. Knott Chair of Philosophy and Theology at Loyola University, Maryland.
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Pro Life (abortion) Essays
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A Comparison of The Attitudes of Pro-lifers and Pro-choicers on Abortion
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Pro-life movements are those which advocate against the practice of abortion and its legality.
The term pro-life began to be used by opponents of legal abortion around the early 1970s, born from the related term "right to life".
The pro-life position stresses the humanity of both the mother and fetus, arguing that a fetus is a human person deserving of legal protection.
From Roe v. Wade in 1973 through 2017, over 60 million legal abortions are estimated to have been performed in the United States – an average of about 1.4 million abortions per year. About one in four US women will have an abortion before age 45. Although the Catholic and Lutheran churches oppose abortion, more of their members believe abortion should be legal in all or most cases versus illegal in all or most cases. A woman's risk of dying from having an abortion is 0.6 in 100,000, while the risk of dying from giving birth is around 14 times higher (8.8 in 100,000).
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Judith Jarvis Thomson: A Defense of Abortion
From Philosophy & Public Affairs , Vol. 1, no. 1 (Fall 1971).
(Reprinted in "Intervention and Reflection: Basic Issues in Medical Ethics," 5 th ed., ed. Ronald Munson (Belmont; Wadsworth 1996). pp 69-80.)
Most opposition to abortion relies on the premise that the fetus is a human being, a person, from the moment of conception. The premise is argued for, but, as I think, not well. Take, for example, the most common argument. We are asked to notice that the development of a human being from conception through birth into childhood is continuous; then it is said that to draw a line, to choose a point in this development and say "before this point the thing is not a person, after this point it is a person" is to make an arbitrary choice, a choice for which in the nature of things no good reason can be given. It is concluded that the fetus is. or anyway that we had better say it is, a person from the moment of conception. But this conclusion does not follow. Similar things might be said about the development of an acorn into an oak trees, and it does not follow that acorns are oak trees, or that we had better say they are. Arguments of this form are sometimes called "slippery slope arguments"--the phrase is perhaps self-explanatory--and it is dismaying that opponents of abortion rely on them so heavily and uncritically.
I am inclined to agree, however, that the prospects for "drawing a line" in the development of the fetus look dim. I am inclined to think also that we shall probably have to agree that the fetus has already become a human person well before birth. Indeed, it comes as a surprise when one first learns how early in its life it begins to acquire human characteristics. By the tenth week, for example, it already has a face, arms and less, fingers and toes; it has internal organs, and brain activity is detectable. On the other hand, I think that the premise is false, that the fetus is not a person from the moment of conception. A newly fertilized ovum, a newly implanted clump of cells, is no more a person than an acorn is an oak tree. But I shall not discuss any of this. For it seems to me to be of great interest to ask what happens if, for the sake of argument, we allow the premise. How, precisely, are we supposed to get from there to the conclusion that abortion is morally impermissible? Opponents of abortion commonly spend most of their time establishing that the fetus is a person, and hardly anytime explaining the step from there to the impermissibility of abortion. Perhaps they think the step too simple and obvious to require much comment. Or perhaps instead they are simply being economical in argument. Many of those who defend abortion rely on the premise that the fetus is not a person, but only a bit of tissue that will become a person at birth; and why pay out more arguments than you have to? Whatever the explanation, I suggest that the step they take is neither easy nor obvious, that it calls for closer examination than it is commonly given, and that when we do give it this closer examination we shall feel inclined to reject it.
I propose, then, that we grant that the fetus is a person from the moment of conception. How does the argument go from here? Something like this, I take it. Every person has a right to life. So the fetus has a right to life. No doubt the mother has a right to decide what shall happen in and to her body; everyone would grant that. But surely a person's right to life is stronger and more stringent than the mother's right to decide what happens in and to her body, and so outweighs it. So the fetus may not be killed; an abortion may not be performed.
It sounds plausible. But now let me ask you to imagine this. You wake up in the morning and find yourself back to back in bed with an unconscious violinist. A famous unconscious violinist. He has been found to have a fatal kidney ailment, and the Society of Music Lovers has canvassed all the available medical records and found that you alone have the right blood type to help. They have therefore kidnapped you, and last night the violinist's circulatory system was plugged into yours, so that your kidneys can be used to extract poisons from his blood as well as your own. The director of the hospital now tells you, "Look, we're sorry the Society of Music Lovers did this to you--we would never have permitted it if we had known. But still, they did it, and the violinist is now plugged into you. To unplug you would be to kill him. But never mind, it's only for nine months. By then he will have recovered from his ailment, and can safely be unplugged from you." Is it morally incumbent on you to accede to this situation? No doubt it would be very nice of you if you did, a great kindness. But do you have to accede to it? What if it were not nine months, but nine years? Or longer still? What if the director of the hospital says. "Tough luck. I agree. but now you've got to stay in bed, with the violinist plugged into you, for the rest of your life. Because remember this. All persons have a right to life, and violinists are persons. Granted you have a right to decide what happens in and to your body, but a person's right to life outweighs your right to decide what happens in and to your body. So you cannot ever be unplugged from him." I imagine you would regard this as outrageous, which suggests that something really is wrong with that plausible-sounding argument I mentioned a moment ago.
In this case, of course, you were kidnapped, you didn't volunteer for the operation that plugged the violinist into your kidneys. Can those who oppose abortion on the ground I mentioned make an exception for a pregnancy due to rape? Certainly. They can say that persons have a right to life only if they didn't come into existence because of rape; or they can say that all persons have a right to life, but that some have less of a right to life than others, in particular, that those who came into existence because of rape have less. But these statements have a rather unpleasant sound. Surely the question of whether you have a right to life at all, or how much of it you have, shouldn't turn on the question of whether or not you are a product of a rape. And in fact the people who oppose abortion on the ground I mentioned do not make this distinction, and hence do not make an exception in case of rape.
Nor do they make an exception for a case in which the mother has to spend the nine months of her pregnancy in bed. They would agree that would be a great pity, and hard on the mother; but all the same, all persons have a right to life, the fetus is a person, and so on. I suspect, in fact, that they would not make an exception for a case in which, miraculously enough, the pregnancy went on for nine years, or even the rest of the mother's life.
Some won't even make an exception for a case in which continuation of the pregnancy is likely to shorten the mother's life, they regard abortion as impermissible even to save the mother's life. Such cases are nowadays very rare, and many opponents of abortion do not accept this extreme view. All the same, it is a good place to begin: a number of points of interest come out in respect to it.
Let us call the view that abortion is impermissible even to save the mother's life "the extreme view." I want to suggest first that it does not issue from the argument I mentioned earlier without the addition of some fairly powerful premises. Suppose a woman has become pregnant, and now learns that she has a cardiac condition such that she will die if she carries the baby to term. What may be done for her? The fetus, being to life, but as the mother is a person too, so has she a right to life. Presumably they have an equal right to life. How is it supposed to come out that an abortion may not be performed? If mother and child have an equal right to life, shouldn't we perhaps flip a coin? Or should we add to the mother's right to life her right to decide what happens in and to her body, which everybody seems to be ready to grant--the sum of her rights now outweighing the fetus's right to life?
The most familiar argument here is the following. We are told that performing the abortion would he directly killings the child, whereas doing nothing would not be killing the mother, but only letting her die. Moreover, in killing the child, one would be killing an innocent person, for the child has committed no crime, and is not aiming at his mother's death. And then there are a variety of ways in which this might be continued. (1) But as directly killing an innocent person is always and absolutely impermissible, an abortion may not be performed. Or, (2) as directly killing an innocent person is murder, and murder is always and absolutely impermissible, an abortion may not be performed. Or, (3) as one's duty to refrain from directly killing an innocent person is more stringent than one's duty to keep a person from dying, an abortion may not be performed. Or, (4) if one's only options are directly killing an innocent person or letting a person die, one must prefer letting the person die, and thus an abortion may not be performed.
Some people seem to have thought that these are not further premises which must be added if the conclusion is to be reached, but that they follow from the very fact that an innocent person has a right to life. But this seems to me to be a mistake, and perhaps the simplest way to show this is to bring out that while we must certainly grant that innocent persons have a right to life, the theses in (1) through (4) are all false. Take (2), for example. If directly killing an innocent person is murder, and thus is impermissible, then the mother's directly killing the innocent person inside her is murder, and thus is impermissible. But it cannot seriously be thought to be murder if the mother performs an abortion on herself to save her life. It cannot seriously be said that she must refrain, that she must sit passively by and wait for her death. Let us look again at the case of you and the violinist There you are, in bed with the violinist, and the director of the hospital says to you, "It's all most distressing, and I deeply sympathize, but you see this is putting an additional strain on your kidneys, and you'll be dead within the month. But you have to stay where you are all the same. because unplugging you would be directly killing an innocent violinist, and that's murder, and that's impermissible." If anything in the world is true, it is that you do not commit murder, you do not do what is impermissible, if you reach around to your back and unplug yourself from that violinist to save your life.
The main focus of attention in writings on abortion has been on what a third party may or may not do in answer to a request from a woman for an abortion. This is in a way understandable. Things being as they are, there isn't much a woman can safely do to abort herself. So the question asked is what a third party may do, and what the mother may do, if it is mentioned at all, if deduced, almost as an afterthought, from what it is concluded that third parties may do. But it seems to me that to treat the matter in this way is to refuse to grant to the mother that very status of person which is so firmly insisted on for the fetus. For we cannot simply read off what a person may do from what a third party may do. Suppose you filed yourself trapped in a tiny house with a growing child. I mean a very tiny house, and a rapidly growing child--you are already up against the wall of the house and in a few minutes you'll be crushed to death. The child on the other hand won't be crushed to death; if nothing is done to stop him from growing he'll be hurt, but in the end he'll simply burst open the house and walk out a free man. Now I could well understand it if a bystander were to say. "There's nothing we can do for you. We cannot choose between your life and his, we cannot be the ones to decide who is to live, we cannot intervene." But it cannot be concluded that you too can do nothing, that you cannot attack it to save your life. However innocent the child may be, you do not have to wait passively while it crushes you to death Perhaps a pregnant woman is vaguely felt to have the status of house, to which we don't allow the right of self-defense. But if the woman houses the child, it should be remembered that she is a person who houses it.
I should perhaps stop to say explicitly that I am not claiming that people have a right to do anything whatever to save their lives. I think, rather, that there are drastic limits to the right of self-defense. If someone threatens you with death unless you torture someone else to death, I think you have not the right, even to save your life, to do so. But the case under consideration here is very different. In our case there are only two people involved, one whose life is threatened, and one who threatens it. Both are innocent: the one who is threatened is not threatened because of any fault, the one who threatens does not threaten because of any fault. For this reason we may feel that we bystanders cannot interfere. But the person threatened can.
In sum, a woman surely can defend her life against the threat to it posed by the unborn child, even if doing so involves its death. And this shows not merely that the theses in (1) through (4) are false; it shows also that the extreme view of abortion is false, and so we need not canvass any other possible ways of arriving at it from the argument I mentioned at the outset.
The extreme view could of course be weakened to say that while abortion is permissible to save the mother's life, it may not be performed by a third party, but only by the mother herself. But this cannot be right either. For what we have to keep in mind is that the mother and the unborn child are not like two tenants in a small house which has, by an unfortunate mistake, been rented to both: the mother owns the house. The fact that she does adds to the offensiveness of deducing that the mother can do nothing from the supposition that third parties can do nothing. But it does more than this: it casts a bright light on the supposition that third parties can do nothing. Certainly it lets us see that a third party who says "I cannot choose between you" is fooling himself if he thinks this is impartiality. If Jones has found and fastened on a certain coat, which he needs to keep him from freezing, but which Smith also needs to keep him from freezing, then it is not impartiality that says "I cannot choose between you" when Smith owns the coat. Women have said again and again "This body is my body!" and they have reason to feel angry, reason to feel that it has been like shouting into the wind. Smith, after all, is hardly likely to bless us if we say to him, "Of course it's your coat, anybody would grant that it is. But no one may choose between you and Jones who is to have it."
We should really ask what it is that says "no one may choose" in the face of the fact that the body that houses the child is the mother's body. It may be simply a failure to appreciate this fact. But it may be something more interesting, namely the sense that one has a right to refuse to lay hands on people, even where it would be just and fair to do so, even where justice seems to require that somebody do so. Thus justice might call for somebody to get Smith's coat back from Jones, and yet you have a right to refuse to be the one to lay hands on Jones, a right to refuse to do physical violence to him. This, I think, must be granted. But then what should be said is not "no one may choose," but only "I cannot choose," and indeed not even this, but "I will not act," leaving it open that somebody else can or should, and in particular that anyone in a position of authority, with the job of securing people's rights, both can and should. So this is no difficulty. I have not been arguing that any given third party must accede to the mother's request that he perform an abortion to save her life, but only that he may.
I suppose that in some views of human life the mother's body is only on loan to her, the loan not being one which gives her any prior claim to it. One who held this view might well think it impartiality to say "I cannot choose." But I shall simply ignore this possibility. My own view is that if a human being has any just, prior claim to anything at all, he has a just, prior claim to his own body. And perhaps this needn't be argued for here anyway, since, as I mentioned, the arguments against abortion we are looking at do grant that the woman has a right to decide what happens in and to her body. But although they do grant it, I have tried to show that they do not take seriously what is done in granting it. I suggest the same thing will reappear even more clearly when we turn away from cases in which the mother's life is at stake, and attend, as I propose we now do, to the vastly more common cases in which a woman wants an abortion for some less weighty reason than preserving her own life.
Where the mother s life is not at stake, the argument I mentioned at the outset seems to have a much stronger pull. "Everyone has a right to life, so the unborn person has a right to life." And isn't the child's right to life weightier than anything other than the mother's own right to life, which she might put forward as ground for an abortion?
This argument treats the right to life as if it were unproblematic. It is not, and this seems to me to be precisely the source of the mistake.
For we should now, at long last, ask what it comes to, to have a right to life. In some views having a right to life includes having a right to be given at least the bare minimum one needs for continued life. But suppose that what in fact IS the bare minimum a man needs for continued life is something he has no right at all to be given? If I am sick unto death, and the only thing that will save my life is the touch of Henry Fonda's cool hand on my fevered brow. then all the same, I have no right to be given the touch of Henry Fonda's cool hand on my fevered brow. It would be frightfully nice of him to fly in from the West Coast to provide it. It would be less nice, though no doubt well meant, if my friends flew out to the West coast and brought Henry Fonda back with them. But I have no right at all against anybody that he should do this for me. Or again, to return to the story I told earlier, the fact that for continued life the violinist needs the continued use of your kidneys does not establish that he has a right to be given the continued use of your kidneys. He certainly has no right against you that you should give him continued use of your kidneys. For nobody has any right to use your kidneys unless you give him this right--if you do allow him to go on using your kidneys, this is a kindness on your part, and not something he can claim from you as his due. Nor has he any right against anybody else that they should give him continued use of your kidneys. Certainly he had no right against the Society of Music Lovers that they should plug him into you in the first place. And if you now start to unplug yourself, having learned that you will otherwise have to spend nine years in bed with him, there is nobody in the world who must try to prevent you, in order to see to it that he is given some thing he has a right to be given.
Some people are rather stricter about the right to life. In their view, it does not include the right to be given anything, but amounts to, and only to, the right not to be killed by anybody. But here a related difficulty arises. If everybody is to refrain from killing that violinist, then everybody must refrain from doing a great many different sorts of things. Everybody must refrain from slitting his throat, everybody must refrain from shooting him--and everybody must refrain from unplugging you from him. But does he have a right against everybody that they shall refrain from unplugging you frolic him? To refrain from doing this is to allow him to continue to use your kidneys. It could be argued that he has a right against us that we should allow him to continue to use your kidneys. That is, while he had no right against us that we should give him the use of your kidneys, it might be argued that he anyway has a right against us that we shall not now intervene and deprive him Of the use of your kidneys. I shall come back to third-party interventions later. But certainly the violinist has no right against you that you shall allow him to continue to use your kidneys. As I said, if you do allow him to use them, it is a kindness on your part, and not something you owe him.
The difficulty I point to here is not peculiar to the right of life. It reappears in connection with all the other natural rights, and it is something which an adequate account of rights must deal with. For present purposes it is enough just to draw attention to it. But I would stress that I am not arguing that people do not have a right to life--quite to the contrary, it seems to me that the primary control we must place on the acceptability of an account of rights is that it should turn out in that account to be a truth that all persons have a right to life. I am arguing only that having a right to life does not guarantee having either a right to be given the use of or a right to be allowed continued use of another person s body--even if one needs it for life itself. So the right to life will not serve the opponents of abortion in the very simple and clear way in which they seem to have thought it would.
There is another way to bring out the difficulty. In the most ordinary sort of case, to deprive someone of what he has a right to is to treat him unjustly. Suppose a boy and his small brother are jointly given a box of chocolates for Christmas. If the older boy takes the box and refuses to give his brother any of the chocolates, he is unjust to him, for the brother has been given a right to half of them. But suppose that, having learned that otherwise it means nine years in bed with that violinist, you unplug yourself from him. You surely are not being unjust to him, for you gave him no right to use your kidneys, and no one else can have given him any such right. But we have to notice that in unplugging yourself, you are killing him; and violinists, like everybody else, have a right to life, and thus in the view we were considering just now, the right not to be killed. So here you do what he supposedly has a right you shall not do, but you do not act unjustly to him in doing it.
The emendation which may be made at this point is this: the right to life consists not in the right not to be killed, but rather in the right not to be killed unjustly. This runs a risk of circularity, but never mind: it would enable us to square the fact that the violinist has a right to life with the fact that you do not act unjustly toward him in unplugging yourself, thereby killing him. For if you do not kill him unjustly, you do not violate his right to life, and so it is no wonder you do him no injustice.
But if this emendation is accepted, the gap in the argument against abortion stares us plainly in the face: it is by no means enough to show that the fetus is a person, and to remind us that all persons have a right to life--we need to be shown also that killing the fetus violates its right to life, i.e., that abortion is unjust killing. And is it?
I suppose we may take it as a datum that in a case of pregnancy due to rape the mother has not given the unborn person a right to the use of her body for food and shelter. Indeed, in what pregnancy could it be supposed that the mother has given the unborn person such a right? It is not as if there are unborn persons drifting about the world, to whom a woman who wants a child says I invite you in."
But it might be argued that there are other ways one can have acquired a right to the use of another person's body than by having been invited to use it by that person. Suppose a woman voluntarily indulges in intercourse, knowing of the chance it will issue in pregnancy, and then she does become pregnant; is she not in part responsible for the presence, in fact the very existence, of the unborn person inside? No doubt she did not invite it in. But doesn't her partial responsibility for its being there itself give it a right to the use of her body? If so, then her aborting it would be more like the boys taking away the chocolates, and less like your unplugging yourself from the violinist--doing so would be depriving it of what it does have a right to, and thus would be doing it an injustice.
And then, too, it might be asked whether or not she can kill it even to save her own life: If she voluntarily called it into existence, how can she now kill it, even in self-defense?
The first thing to be said about this is that it is something new. Opponents of abortion have been so concerned to make out the independence of the fetus, in order to establish that it has a right to life, just as its mother does, that they have tended to overlook the possible support they might gain from making out that the fetus is dependent on the mother, in order to establish that she has a special kind of responsibility for it, a responsibility that gives it rights against her which are not possessed by any independent person--such as an ailing violinist who is a stranger to her.
On the other hand, this argument would give the unborn person a right to its mother's body only if her pregnancy resulted from a voluntary act, undertaken in full knowledge of the chance a pregnancy might result from it. It would leave out entirely the unborn person whose existence is due to rape. Pending the availability of some further argument, then, we would be left with the conclusion that unborn persons whose existence is due to rape have no right to the use of their mothers' bodies, and thus that aborting them is not depriving them of anything they have ~ right to and hence is not unjust killing.
And we should also notice that it is not at all plain that this argument really does go even as far as it purports to. For there are cases and cases, and the details make a difference. If the room is stuffy, and I therefore open a window to air it, and a burglar climbs in, it would be absurd to say, "Ah, now he can stay, she's given him a right to the use of her house--for she is partially responsible for his presence there, having voluntarily done what enabled him to get in, in full knowledge that there are such things as burglars, and that burglars burgle.'' It would be still more absurd to say this if I had had bars installed outside my windows, precisely to prevent burglars from getting in, and a burglar got in only because of a defect in the bars. It remains equally absurd if we imagine it is not a burglar who climbs in, but an innocent person who blunders or falls in. Again, suppose it were like this: people-seeds drift about in the air like pollen, and if you open your windows, one may drift in and take root in your carpets or upholstery. You don't want children, so you fix up your windows with fine mesh screens, the very best you can buy. As can happen, however, and on very, very rare occasions does happen, one of the screens is defective, and a seed drifts in and takes root. Does the person-plant who now develops have a right to the use of your house? Surely not--despite the fact that you voluntarily opened your windows, you knowingly kept carpets and upholstered furniture, and you knew that screens were sometimes defective. Someone may argue that you are responsible for its rooting, that it does have a right to your house, because after all you could have lived out your life with bare floors and furniture, or with sealed windows and doors. But this won't do--for by the same token anyone can avoid a pregnancy due to rape by having a hysterectomy, or anyway by never leaving home without a (reliable!) army.
It seems to me that the argument we are looking at can establish at most that there are some cases in which the unborn person has a right to the use of its mother's body, and therefore some cases in which abortion is unjust killing. There is room for much discussion and argument as to precisely which, if any. But I think we should sidestep this issue and leave it open, for at any rate the argument certainly does not establish that all abortion is unjust killing.
There is room for yet another argument here, however. We surely must all grant that there may be cases in which it would be morally indecent to detach a person from your body at the cost of his life. Suppose you learn that what the violinist needs is not nine years of your life, but only one hour: all you need do to save his life is to spend one hour in that bed with him. Suppose also that letting him use your kidneys for that one hour would not affect your health in the slightest. Admittedly you were kidnapped. Admittedly you did not give anyone permission to plug him into you. Nevertheless it seems to me plain you ought to allow him to use your kidneys for that hour--it would be indecent to refuse.
Again, suppose pregnancy lasted only an hour, and constituted no threat to life or health. And suppose that a woman becomes pregnant as a result of rape. Admittedly she did not voluntarily do anything to bring about the existence of a child. Admittedly she did nothing at all which would give the unborn person a right to the use of her body. All the same it might well be said, as in the newly amended violinist story, that she ought to allow it to remain for that hour--that it would be indecent of her to refuse.
Now some people are inclined to use the term "right" in such a way that it follows from the fact that you ought to allow a person to use your body for the hour he needs, that he has a right to use your body for the hour he needs, even though he has not been given that right by any person or act. They may say that it follows also that if you refuse, you act unjustly toward him. This use of the term is perhaps so common that it cannot be called wrong; nevertheless it seems to me to be an unfortunate loosening of what we would do better to keep a tight rein on. Suppose that box of chocolates I mentioned earlier had not been given to both boys jointly, but was given only to the older boy. There he sits stolidly eating his way through the box. his small brother watching enviously. Here we are likely to say, "You ought not to be so mean. You ought to give your brother some of those chocolates." My own view is that it just does not follow from the truth of this that the brother has any right to any of the chocolates. If the boy refuses to give his brother any he is greedy stingy. callous--but not unjust. I suppose that the people I have in mind will say it does follow that the brother has a right to some of the chocolates, and thus that the boy does act unjustly if he refuses to give his brother any. But the effect of saying, this is to obscure what we should keep distinct, namely the difference between the boy's refusal in this case and the boy's refusal in the earlier case, in which the box was given to both boys jointly, and in which the small brother thus had what was from any point of view clear title to half.
A further objection to so using the term "right" that from the fact that A ought to do a thing for B it follows that R has a right against A that A do it for him, is that it is going to make the question of whether or not a man has a right to a thing turn on how easy it is to provide him with it; and this seems not merely unfortunate, but morally unacceptable. Take the case of Henry Fonda again. I said earlier that I had no right to the touch of his cool hand on my fevered brow even though I needed it to save my life. I said it would be frightfully nice of him to fly in from the West Coast to provide me with it, but that I had no right against him that he should do so. But suppose he isn't on the West Coast. Suppose he has only to walk across the room, place a hand briefly on my brow--and lo, my life is saved. Then surely he ought to do it-it would be indecent to refuse. Is it to be said, "Ah, well, it follows that in this case she has a right to the touch of his hand on her brow, and so it would be an injustice in him to refuse"? So that I have a right to it when it is easy for him to provide it, though no right when it's hard? It's rather a shocking idea that anyone's rights should fade away and disappear as it gets harder and harder to accord them to him.
So my own view is that even though you ought to let the violinist use your kidneys for the one hour he needs, we should not conclude that he has a right to do so--we should say that if you refuse, you are, like the boy who owns all the chocolates and will give none away, self-centered and callous, indecent in fact, but not unjust. And similarly, that even supposing a case in which a woman pregnant due to rape ought to allow the unborn person to use her body for the hour he needs, we should not conclude that he has a right to do so; we should say that she is self-centered, callous, indecent, but not unjust, if she refuses. The complaints are no less grave; they are just different. However, there is no need to insist on this point. If anyone does wish to deduce "he has a right" from "you ought," then all the same he must surely grant that there are cases in which it is not morally required of you that you allow that violinist to use your kidneys, and in which he does not have a right to use them, and in which you do not do him an injustice if you refuse. And so also for mother and unborn child. Except in such cases as the unborn person has a right to demand it--and we were leaving open the possibility that there may be such cases--nobody is morally required to make large sacrifices, of health, of all other interests and concerns, of all other duties and commitments, for nine years, or even for nine months, in order to keep another person alive.
We have in fact to distinguish between two kinds of Samaritan: the Good Samaritan and what we might call the Minimally Decent Samaritan. The story of the Good Samaritan, you will remember, goes like this:
A certain man went down from Jerusalem to Jericho, and fell among thieves, which stripped him of his raiment, and wounded him, and departed, leaving him half dead.
And by chance there came down a certain priest that way: and when he saw him, he passed by on the other side.
And likewise a Levite, when he was at the place, came and looked on him, and passed by on the other side.
But a certain Samaritan, as he journeyed, came where he was, and when he saw him he had compassion on him.
And went to him, and bound up his wounds, pouring in oil and wine, and set him on his own beast, and brought him to an inn, and took care of him.
And on the morrow, when he departed, he took out two pence, and gave them to the host, and said unto him, "Take care of him; and whatsoever thou spendest more, when I come again, I will repay thee." (Luke 10:30-35)
The Good Samaritan went out of his way, at some cost to himself, to help one in need of it. We are not told what the options were, that is, whether or not the priest and the Levite could have helped by doing less than the Good Samaritan did, but assuming they could have, then the fact they did nothing at all shows they were not even Minimally Decent Samaritans, not because they were not Samaritans, but because they were not even minimally decent.
These things are a matter of degree, of course, but there is a difference, and it comes out perhaps most clearly in the story of Kitty Genovese, who, as you will remember, was murdered while thirty-eight people watched or listened, and did nothing at all to help her. A Good Samaritan would have rushed out to give direct assistance against the murderer. Or perhaps we had better allow that it would have been a Splendid Samaritan who did this, on the ground that it would have involved a risk of death for himself. But the thirty-eight not only did not do this, they did not even trouble to pick up a phone to call the police. Minimally Decent Samaritanism would call for doing at least that, and their not having done it was monstrous.
After telling the story of the Good Samaritan, Jesus said, "Go, and do thou likewise." Perhaps he meant that we are morally required to act as the Good Samaritan did. Perhaps he was urging people to do more than is morally required of them. At all events it seems plain that it was not morally required of any of the thirty-eight that he rush out to give direct assistance at the risk of his own life, and that it is not morally required of anyone that he give long stretches of his life--nine years or nine months--to sustaining the life of a person who has no special right (we were leaving open the possibility of this) to demand it.
Indeed, with one rather striking class of exceptions, no one in any country in the world is legally required to do anywhere near as much as this for anyone else. The class of exceptions is obvious. My main concern here is not the state of the law in respect to abortion, but it is worth drawing attention to the fact that in no state in this country is any man compelled by law to be even a Minimally Recent Samaritan to any person; there is no law under which charges could be brought against the thirty eight who stood by while Kitty Genovese died. By contrast, in most states in this country women are compelled by law to be not merely Minimally Decent Samaritans, but Good Samaritans to unborn persons inside them. This doesn't by itself settle anything one way or the other, because it may well be argued that there should be laws in this country as there are in many European countries--compelling at least Minimally Decent Samaritanism. But it does show that there is a gross injustice in the existing state of the law. And it shows also that the groups currently working against liberalization of abortion laws, in fact working toward having it declared unconstitutional for a state to permit abortion, had better start working for the adoption of Good Samaritan laws generally, or earn the charge that they are acting in bad faith.
I should think, myself, that Minimally Decent Samaritan laws would be one thing, Good Samaritan laws quite another, and in fact highly improper. But we are not here concerned with the law. What we should ask is not whether anybody should be compelled by law to be a Good Samaritan, but whether we must accede to a situation in which somebody is being compelled--by nature, perhaps--to be a Good Samaritan. We have, in other words, to look now at third-party interventions. I have been arguing that no person is morally required to make large sacrifices to sustain the life of another who has no right to demand them, and this even where the sacrifices do not include life itself; we are not morally required to be Good Samaritans or anyway Very Good Samaritans to one another. But what if a man cannot extricate himself from such a situation? What if he appeals to us to extricate him? It seems to me plain that there are cases in which we can, cases in which a Good Samaritan would extricate him. There you are, you were kidnapped, and nine years in bed with that violinist lie ahead of you. You have your own life to lead. You are sorry, but you simply cannot see giving up so much of your life to the sustaining of his. You cannot extricate yourself, and ask us to do so. I should have thought that--in light of his having no right to the use of your body--it was obvious that we do not have to accede to your being forced to give up so much. We can do what you ask. There is no injustice to the violinist in our doing so.
Following the lead of the opponents of abortion, I have throughout been speaking of the fetus merely as a person, and what I have been asking is whether or not the argument we began with, which proceeds only from the fetus's being a person, really does establish its conclusion. I have argued that it does not.
But of course there are arguments and arguments, and it may be said that I have simply fastened on the wrong one. It may be said that what is important is not merely the fact that the fetus is a person, but that it is a person for whom the woman has a special kind of responsibility issuing from the fact that she is its mother. And it might be argued that all my analogies are therefore irrelevant--for you do not have that special kind of responsibility for that violinist; Henry Fonda does not have that special kind of responsibility for me. And our attention might be drawn to the fact that men and women both are compelled by law to provide support for their children
I have in effect dealt (briefly) with this argument in section 4 above; but a (still briefer) recapitulation now may be in order. Surely we do not have any such "special responsibility" for a person unless we have assumed it, explicitly or implicitly. If a set of parents do not try to prevent pregnancy, do not obtain an abortion, but rather take it home with them, then they have assumed responsibility for it, they have given it rights, and they cannot now withdraw support from it at the cost of its life because they now find it difficult to go on providing for it. But if they have taken all reasonable precautions against having a child, they do not simply by virtue of their biological relationship to the child who comes into existence have a special responsibility for it. They may wish to assume responsibility for it, or they may not wish to. And I am suggesting that if assuming responsibility for it would require large sacrifices, then they may refuse. A Good Samaritan would not refuse--or anyway, a Splendid Samaritan, if the sacrifices that had to be made were enormous. But then so would a Good Samaritan assume responsibility for that violinist; so would Henry Fonda, if he is a Good Samaritan, fly in from the West Coast and assume responsibility for me.
My argument will be found unsatisfactory on two counts by many of those who want to regard abortion as morally permissible. First, while I do argue that abortion is not impermissible, I do not argue that it is always permissible. There may well be cases in which carrying the child to term requires only Minimally Decent Samaritanism of the mother, and this is a standard we must not fall below. I am inclined to think it a merit of my account precisely that it does not give a general yes or a general no. It allows for and supports our sense that, for example, a sick and desperately frightened fourteen-year-old schoolgirl, pregnant due to rape, may of course choose abortion, and that any law which rules this out is an insane law. And it also allows for and supports our sense that in other cases resort to abortion is even positively indecent. It would be indecent in the woman to request an abortion, and indecent in a doctor to perform it, if she is in her seventh month, and wants the abortion just to avoid the nuisance of postponing a trip abroad. The very fact that the arguments I have been drawing attention to treat all cases of abortion, or even all cases of abortion in which the mother's life is not at stake, as morally on a par ought to have made them suspect at the outset.
Second, while I am arguing for the permissibility of abortion in some cases, I am not arguing for the right to secure the death of the unborn child. It is easy to confuse these two things in that up to a certain point in the life of the fetus it is not able to survive outside the mother's body; hence removing it from her body guarantees its death. But they are importantly different. I have argued that you are not morally required to spend nine months in bed, sustaining the life of that violinist, but to say this is by no means to say that if, when you unplug yourself, there is a miracle and he survives, you then have a right to turn round and slit his throat. You may detach yourself even if this costs him his life; you have no right to be guaranteed his death, by some other means, if unplugging yourself does not kill him. There are some people who will feel dissatisfied by this feature of my argument. A woman may be utterly devastated by the thought of a child, a bit of herself, put out for adoption and never seen or heard of again. She may therefore want not merely that the child be detached from her, but more, that it die. Some opponents of abortion are inclined to regard this as beneath contempt--thereby showing insensitivity to what is surely a powerful source of despair. All the same, I agree that the desire for the child's death is not one which anybody may gratify, should it turn out to be possible to detach the child alive.
At this place, however, it should be remembered that we have only been pretending throughout that the fetus is a human being from the moment of conception. A very early abortion is surely not the killing of a person, and so is not dealt with by anything I have said here.
- Speaking Calendar
Philosophical Abortion Essay
- Adoption Poetry
- Centrality Of Adoption For Christians
- Adopted Child Dedication Letter
- Letter From My Birthmother
- Rebecca’s Story In Spanish
- Rebecca’s Story in Polish
- Rebecca’s Story in Portuguese
- Rebecca’s Story in French
- Rebecca’s Story in Croatian
- Rebecca’s Story in Romanian
- Rebecca’s Story in Russian
- Rebecca’s Story in German
- Rebecca’s Story in Filipino (Tagalog)
- Rebecca’s Story in Indonesian
- Gov. Perry’s Change of Heart
- Family Law Attorney
A philosophy of rights approach by Rebecca Kiessling Family Law Attorney, Conceived in Rape, Abortion Survivor International Pro-Life Speaker
WARNING! Don’t plagiarize this work. My essay has been ranked as the #1 philosophical abortion essay in many search engines for a long time. Your professor will likely be aware that it’s not your original work. Permission is granted to reproduce this essay in online and email newsletters, or portions of this essay for other essays or articles, as long as you provide proper attribution. Please just e-mail me to let me know if you’d like to reprint my essay or to make it available on another website, with proper credit. It’s just wrong to plagiarize — as in universally wrong for everyone. As you can see from my own story, this is not just a philosophical exercise for me. But some will say that my story and the multitude of others’ stories that I have posted on my site are merely anecdotal. So here are the philosophical arguments to back up the premise that we deserved to be protected. I’ve put a heading on each paragraph in order to make it easier for the reader to go back and find certain points. For those who are willing to be challenged — enjoy this essay!
THE RIGHT OF THE UNBORN CHILD NOT TO BE UNJUSTLY KILLED — a philosophy of rights approach
This essay focuses on the controversy between the claimed right of elective abortion and the asserted right of an unborn child not to be unjustly killed. An analysis is done of the writings of several of the advocates of the right of elective abortion, every one of whom has a unique position which he or she defends. For each writer, I examine his or her definition of a “person” or “human being,” depending on which one the author deems to be morally relevant to this topic. I then study and evaluate the grounds on which the author relies for determining whether an unborn child is capable of having rights, whether an unborn child has a right not to be unjustly killed, and in what types of instances it may be possible for an unborn child to be justly killed. During the review of these authors’ contentions, I formulate and detail my own arguments. After surveying all of the writers, I attempt to decipher what is meant by “just” and I argue for what it should mean. Finally, I summarize the bases for my conclusions that an unborn child is a human being which has the right not to be unjustly killed, and a pre-birth killing is only just when it is in defense of the mother’s life.
This essay, however, does not include a discussion of any religious bases because it is my experience that some individuals will refuse to consider a logical reasoning approach if they perceive the deliverer of the message to have different religious foundations from them. This writing is intended to be relevant for believers and atheists alike. Thus, everyone can be held accountable for his or her (hopefully) educated opinions, without being able to readily discredit a source for lack of personal applicability.
The relevance of defining the terms “personhood” or “human life” has to do with the argument that an unborn child must be a person or a human being in
order to have the fundamental right not to be unjustly killed. The syllogism (logical argument) is as follows:
First premise: Every person has the right not to be unjustly killed.
Second premise: Every unborn child is a person.
Conclusion: Every unborn child has the right not to be unjustly killed.
Many of the advocates of a right to elective abortion spend a great deal of time trying to prove that the second premise is false. As will be seen, there are those who deny the truth of the first premise by excluding certain groups of individuals who may be seen as comparable to unborn children — comatose individuals, for example. Many of the supporters of the right of unborn children not to be unjustly killed spend their time verifying the second premise.
JUDITH JARVIS THOMPSON
The slippery slope
Judith Jarvis Thompson, in her renowned essay “A Defense of Abortion,” begins by advising against the use of what she labels the “slippery slope argument” which dictates: from the moment of conception the unborn child is a human being and a person because human development is continuous and line drawing would be arbitrary.  She feels it is a slippery slope argument because she fears some may say the line should be drawn before conception and also because she believes that even after conception, it is questionable whether the unborn child is a human being.
However, if Thompson and others refuse to draw the line beginning at conception, then they might not draw it until birth, or even some time after the birth of the child. The danger lies not in reasoning, but in irrational and arbitrary decision-making simply out of a desire for convenience. Where would Thompson and others be willing to draw the line? Human development is always continuous. When would it not be continuous? Without line drawing, one may arbitrarily be taking a life, leaving no one safe from a capricious killing. In other words, not to decide is to decide.
Thompson compares acorns to oak trees, unborn children to adults, and concludes: “it does not follow that” the immature forms are to be considered the same as the more mature forms. Certainly, it is true that the immature forms are not identical to the more mature forms, simply because acorns and fetuses are indeed immature forms while oak trees and adults are indeed mature forms, thus making them “different.” An infant is not the same as an octogenarian, but the fact that they are “different” has nothing to do with whether either of them does or does not have a right not to be unjustly killed. Thompson concedes that “we shall probably have to agree that the fetus has already become a human person well before birth,” but she denies the fetus is a person from the moment of conception.  Nevertheless, in formulating her argument in defense of abortion, Thompson grants the premise that a person is formed at conception, in an effort to focus on other issues which she deems to be more crucial.
The famous unconscious violinist
Thompson utilizes a bizarre hypothetical situation to suggest that a right to decide what to do with one’s body outweighs a “right to life.”  You are asked to imagine yourself waking up in a hospital bed and finding a “famous unconscious violinist” hooked up into your back by a plug because his kidneys are failing and you are the only person in the world whose kidneys match his. You are told that if you unplug him, he will die. He needs you for only nine months, after which, he can safely be unplugged.
Attempting to draw an analogy in order that she may bolster her argument for abortion, Thompson says “I imagine you would regard this as outrageous.” Well, of course it is outrageous — the hypothetical is outrageous. If someone really told any of us that this happened to him or her, the universal reaction would surely not be one of believability. Pregnancy, on the other hand, is believable and it is far from being outrageous. After all, it is the means by which we have all arrived here, and the essence of reproduction.
If Thompson really wanted to draw a fair and accurate analogy to a mother/unborn child scenario, the violinist would be the size of the unborn child and tucked away — possibly in a pouch. Given an imaginary scenario which is indeed comparable to that of a normal pregnancy, I would hold that it is far from outrageous to require the continuation of life support for up to nine months or so — whether the recipient is a famous violinist or a mediocre air-guitarist.
Thompson’s creation of an “unconscious famous violinist” who suffers from kidney failure was surely calculated to have a certain manipulative/psychological effect on her readers. Thompson is likely to want her readers to believe the violinist is: (1) a man (to feminist readers, this is an automatic negative); (2) full-grown (this gives the visual effect of a huge burden); (3) fairly old (for younger and discriminating generations he may elicit less sympathy, with possible notions that he has already had enough years to enjoy his life); (4) already dying because his kidneys are failing (some may conclude that he must not have too many years ahead of him to live and in some readers’ minds, unplugging him may be more akin to euthanasia); (5) wealthy and a world traveler because he is famous (and so is likely to have had a “better life” with more opportunities than most of us ever will); and (6) stuffy, boring, and pompous. Therefore (Thompson would like for us to conclude), his life could not be worth more than our desire to be rid of him. Fortunately, not all of her readers allow themselves to be misdirected by the prejudices and emotions of the intolerant and selfish elements of our society; rather, logical reasoning with consistency is to be the guide for analysis and judgment.
In Thompson’s violinist hypothetical, the kidney donor is not voluntary — he or she was kidnapped. Thus, the author has made her illustration analogous to a rape-conception pregnancy. In addressing our issue in the confines of pregnancy through rape, I agree with Thompson when she states: “Surely the question of whether you have a right to life at all, or how much of it you have, shouldn’t turn on the question of whether or not you are the product of a rape.”  This statement is true for a couple of reasons. First of all, a retaliatory strike, whether in self-defense or as a punishment, must be against a victimizer. In Thompson’s outlandish sketch, the kidney kidnapper is the victimizer — not the violinist, and in a sexual assault, the rapist is the victimizer — not the unborn child. The unborn child did not cause the harm, which was the rape and not the pregnancy. Any attempts to declare the right to life of the blameless unborn child as suspended because of the rape are tragically misdirected. Go punish the guilty rapist, but leave the innocent unborn child alone. Additionally, in many states, while the rapist’s parental rights will be terminated, child support may be collected from him by the state for the support of the child.
Secondly, in comparing an unborn child of a non-rape-conception to an unborn child of a rape-conception, the two unborn children have done nothing different and have no differing characteristics from one-another to warrant the false conclusion that one’s right to life is greater than the other’s. This is abundantly clear when one compares a child who was conceived out of a rape to a child who was not, or even adults for that matter. Their basic human characteristics are the same, and the right to life, or not to be unjustly killed, remains equal.
The nine year “miracle”
In a sympathetic appeal for an exception to be made where a pregnant mother must spend the full nine months in bed, Thompson argues that the mother’s interest in avoiding the pregnancy should outweigh an unborn child’s right to life. She suggests a consideration of the possibility that “miraculously enough, the pregnancy went on for nine years, or even the rest of the mother’s life.”  Perhaps this would be a pleasant “miracle” to Thompson, just so she could attempt to support her theory that a continued pregnancy is an outrageous burden to impose on a woman; however, we are not dealing with nine-year pregnancies, and it is inappropriate when balancing interests and rights to give weight to total impossibilities. In other words, there is no possibility for Thompson’s readers to consider, no matter how much Thompson might like for there to be. This balancing of interests and rights goes to the issue of what is “just” and is later addressed in depth.
Life vs. Life + Choice
The author next discusses the theories and implications surrounding the issue of whether abortion is permissible to save a mother’s life. Again, I agree with Thompson when she says that the mother and the unborn child “(p)resumably . . . have an equal right to life.”  She sees this as presenting a dilemma and rhetorically asks whether we should “flip a coin” or “add to the mother’s right to life her right to decide what happens in and to her body . . . (with) the sum of her rights now outweighing the fetus’ right to life?”  Flipping a coin is certainly not a morally sound solution, but the second suggestion is absolutely the appropriate resolution. Except, no one is “adding” on an extra right. The mother’s right not to be killed, as well as her (qualified) right of autonomy (deciding what can happen in and to her own body) are already existent, but they are not absolute because the potential effect on others’ rights must be considered as well. As will be discussed in detail below, one cannot legally and morally kill someone else in order to prevent that person from stepping on one’s toe.
The “extreme view”
According to Thompson, the “extreme view” (not permitting abortion to save the mother’s life) maintains that “directly killing an innocent person is always and absolutely impermissible.”
 Now using the violinist example in a sensible manner, Thompson demonstrates the truth that one should not consider it to be murder for a woman to abort her unborn child when it is absolutely medically necessary to save her own life, and that it is untenable to require the woman to passively refrain from any defense and await her death. Clearly, a killing which takes place in order to defend one’s own life as against a deadly aggressor cannot be considered to be murder. The common law definition of murder is “the killing of a human being by another human being with malice aforethought.” A woman who wishes to preserve her own life does not necessarily have malice for the unborn child. Further, such a killing is not even an “unjust” killing so long as the killing was not performed in such a way to merely secure the death of the unborn child. From a religious viewpoint, however, one may believe that we are called to lay down our own lives in order to save others’, but such a discussion is outside the scope of this essay. As a society, we have traditionally recognized that the preservation of one’s own life is a basic human instinct. When we choose not to punish people for killing in self-defense in cases when they had no other recourse but to kill or be killed, we are not condoning what they did or saying we believe it was right thing to do. Instead, we merely recognize that they made a life or death decision and we do not hold them criminally liable.
The innocent aggressor
Thompson alludes to the right of self-defense, but she fails to refer to other areas of the law and the philosophy of rights in which the right of self-defense as against an innocent aggressor is supported. For example, where an innocent child is pointing a loaded gun at another innocent person, and the child believes the gun to be a toy and is about to shoot that person, it is not considered to be unjust under the current state of the law for the innocent potential victim to kill the child. The child is the innocent aggressor and is not “unjustly” killed in such a scenario. The ramifications of choosing not to label such a killing as being “unjust” simply means that society will not punish this person who acted in self-defense, because of our understanding that survival is one of our most basic human instincts. Justice would not be served if the person were punished. However, this right of self-defense is limited so that it may only be invoked against aggressors. As Thompson points out, “(i)f someone threatens you with death unless you torture someone else to death, . . . you have not the right, even to save your life, to do so.”  This is because, in such a scenario, the innocent person whom you are directed to kill is not an aggressor, and such a killing would therefore be unjust.
Another concern of Thompson’s is whether a third party may intervene in a conflicting-lives situation by selecting an individual to help. In the abortion realm, the third party would most likely be a doctor. Again, the question of which individual is the aggressor, whether innocent or not, is crucial to the balance and the just determination of the outcome. Clearly, a doctor may be permitted to defend the life of an innocent mother. Third-party defenses are nothing new in the law and the philosophy of rights. Thompson supports the right of a doctor to intervene when a woman’s life is at stake by suggesting the mother owns her body, and that third parties are allowed to recognize and respect ownership. However, Thompson also recognizes “that one has a right to refuse to lay hands on people, even where it would be just and fair to do so . . .”  Therefore, if a doctor does not wish to assist in aborting an unborn child when the pregnancy is innocently placing the mother’s life in jeopardy, the doctor must not be punished for choosing not to personally intervene — even if it is medical necessary in order to save the mother’s life.
Thompson says “the arguments against abortion we are looking at do grant that the woman has a right to decide what happens in and to her body.”  I also concede that there is a right of autonomy over one’s body, but such a right is not absolute. The right to decide what happens in and to one’s own body is qualified when it affects what happens in and to others’ bodies. For example, the right we all have to defend ourselves is limited by the law. Our society utilizes the law to impose what we have collectively deemed to be just under a cultivated philosophy of rights approach — what some legal scholars call “natural law.” These rights and theories have been developed and refined over many centuries and through many great minds in order to achieve the basic foundations which we now have. A discussion of natural law concepts is much too broad for purposes of this essay.
The right of self-defense is derived from the right of a person to decide what can happen in and to his or her own body. However, the right of self-defense is confined to reasonably necessary measures to prevent a harm, and is limited to the use of a similar amount of force as an aggressor is using. The use of deadly force is morally and legally impermissible when someone is not threatened with death or serious bodily injury. To use lethal force would be unjust because when balanced, the right to life, as well as the right to be free from serious bodily injury, are more valuable than a right to be free from minor bodily injury. For example, a human life is worth more than an interest in being free from a poke in the belly. Accordingly, a pregnant woman may not abort when there is no danger to her life or threat of great bodily injury. Deadly force is impermissible merely to prevent an attack which is not life-threatening, whether the attack is innocent or intentional, and even when it may very well be certain to cause pain, tremendous inconvenience, and even monetary difficulties. Judith Jarvis Thompson, however, strikes the balance differently and disagrees. She feels very strongly about owning her own body. (The thought of accidentally bumping into her alarms me.)
The famous actor’s hand
Instead of addressing the thesis which is the topic of this essay — that all persons, including unborn children, have a right “not to be unjustly killed” — Thompson first focuses on the “pro-life” position that all persons, including unborn children, have a right “to life.” Although, Thompson does later emphasize that “the right to life consists not in the right not to be killed, but rather in the right not to be killed unjustly.”  According to Thompson, the pro-life view “includes having a right to be given at least the bare minimum one needs for continued life,” and she counters this notion by illustrating how one does not possess the right to have some famous actor place his hand on one’s forehead, despite the hypothetical fiction that one will surely die without the magic hand. (Although such a thing obviously does not exist, for the sake of argument it is addressed.) Essentially, Thompson claims there is no right to have someone save your life, even when there is no risk to the potential rescuer’s own life, but only some possible degree of inconvenience for the desired rescuer.
Act vs. Omission
In analyzing her assertion, first consider the difference between an act and an omission. An act could cause a death, whereas an omission could allow it to happen. An omission would involve simply refraining from saving someone’s life. One can certainly distinguish abortion from the famous actor hypothetical by noting that abortion involves an act, while Thompson’s famous actor’s scenario involves an omission. The omission does not constitute a “killing” per se. The hypothetical can be properly analogized by supposing that the famous actor already had his hand on the person’s forehead, then removed it knowing this would cause the person’s death. If the person then dies, this would then be a “killing.” The only issue to be settled is whether it is unjust, and I am reserving the discussion of exactly what kind of factors go into the determination of whether a killing is or is not unjust for later in this essay.
The right “to life”
Now explore whether there is ever a positive right “to life” and not simply a right “not to be unjustly killed.” Certainly, there is no unqualified right to life, because the law provides for instances in which a court or jury may determine that an aggressor has been justly killed — such as in a self-defense scenario when an aggressor, in attempting to kill someone, is killed by the innocent defender. Thus, the key question is, can there ever be a right to have someone save your life, along with a corresponding obligation that a potential rescuer do so? Is Thompson wrong to suggest that there can never be such a right or duty?
The snow storm
I assert there are situations in which such a right and a duty exist. The morally relevant factors which go into the consideration as to whether our laws should hold someone accountable for such a duty include: risk, convenience, proximity, and unique ability. Suppose a man enters a friend’s home during a snow storm and becomes trapped in the home with someone else’s small child. The man does not happen to know the small child, and the small child was already in the home. They are the only two individuals present when snowbound. The kitchen cupboards are stocked with food, but this small child is unable to reach the food or to open any jars in the refrigerator, etc.. Out of an interest in having total leisure for himself, the man does not wish to assist the child in any way.
If the man refrains from supplying the child with the food, and the child dies, the man has not acted in such a way which caused the death of the child, but merely omitted acting, thereby allowing the death. Therefore, definitionally, he has not, per se, “killed” the child, while it is true that, but for the omission of this self-serving man, the child would not have died.
However, the result of the omission in the snow storm scenario certainly seems unjust. For this reason, I argue that the child was unjustly deprived of a right “to life” in this case, despite the fact that this man was not voluntarily placed in the situation (just as a woman who is pregnant from a rape.) There was no risk of harm to the man, it would not have been too inconvenient for him to have acted — even if he had been snowbound for nine months, he was in proximity to the child, and he had a unique ability because he was the only one who could have saved the child’s life. But-for his omission, the child would not have died, and he was proximate enough that we may say he did cause the child’s death.
Unlike Thompson and others’ hypotheticals, this snow storm scenario is totally plausible — there is no futuristic technology requirement or suggestion of some impossible miracle to occur in order for the fact pattern to be conceivable. This is an important feature when considering what seems right and what seems wrong in this world because we are, indeed, dealing with reality in this world. One may further apply the example above to the case of an infant who actually needs to be physically fed and not simply supplied with food. Also, the facts can be changed so that the food had actually been purchased by the man. The outcome remains the same if the child is neglected — there is clearly a moral duty to act which must be legally recognized, and, likewise, what I now refer to as “a right not to be unjustly deprived of one’s life.”
In tort (personal injury) law, we have the long-standing “necessity doctrine.” This doctrine allows, for example, a boat in a storm to dock in someone else’s “safe harbor.” The right of the individuals on the boat need not be granted or bestowed by the dock owner — it exists independently, regardless of whether or not a sailor in peril has permission to be in the private harbor. The reasoning here makes sense: the lives of those on board are valued more than the right of the dock owner to have his property free from intrusion. That right, along with any inconvenience the dock owner suffers (even to the extent that the private dock is thereby destroyed) is subsidiary to the right to life at stake here. This remains true even if those on board the boat were in such a predicament because they had themselves been incredibly irresponsible in ending up out on the water in a treacherous storm in the first place. Likewise, an unborn child cannot ever be found to have been irresponsible in any capacity for ending up in such a vulnerable position and should, therefore, be granted at least the same consideration and should be afforded his or her right to life.
Invitation to life
Thompson delays on the issue of whether an unborn child has a right to life because, she says, a woman cannot really ever be said to have “invited” an unborn child to use her body for food and shelter. However, as we have seen above, an invitation is not necessary for there to be a right not to be unjustly deprived of one’s life. In other words, the right exists — it is not merely bestowed by the one with the duty or the ability to be adversely affected by the right. For example, you do not give others the right not to be physically harmed by you, and you do not invite them to exercise that right. The right to be free from unjust bodily injury and the right to self-defense already exist. Therefore, in the abortion debate, any related issues of consent such as applied in the case of pregnancy due to rape are irrelevant. Whether it can be said that there is a lack of consent or a lack of an invitation from the pregnant woman, the right of the unborn child to be free from bodily injury is already there and continues to exist. The general right to be free from bodily injury is based upon many philosophical and moral rights theories, including utilitarianism and the like, which have been developed over several millenia. An in-depth discussion of these theories is much too broad for this essay, and hopefully, most people will understand the obvious purposes and needs for such a right.
Innocent and necessary
It follows then, that Thompson is correct when she says “it would be absurd to say” that a person who opens a window in his or her house has constructively invited a burglar in and granted him the right to the use of the house.  This is true because rights and invitations are independent and wholly unrelated. As we have seen, if you leave your harbor open, an innocent boat — out of necessity — may still permissibly dock in your “safe harbor” under the “necessity doctrine.” Again, this is not because the boat was constructively invited into your harbor, but merely because it needs to and is able to dock there. The same reasoning readily applies to an unplanned pregnancy. The unborn child has a right not to be unjustly killed, not because the unborn child was necessarily constructively invited into the mother’s womb, but merely because the unborn child needs to and is able to be harbored there.
Duty without assumption
The assumption of a “special responsibility” is likewise not necessary in order to have a duty owed to someone else or for the other person to have a corresponding right. Thompson asserts: “If a set of parents do not try to prevent pregnancy, do not obtain an abortion, and then at the time of birth of the child do not put it out for adoption, but rather take it home with them, then they have assumed responsibility for it, they have given it rights, and they cannot now withdraw support from it at the cost of its life because they now find it difficult to go on providing for it.”  As my “snow storm” hypothetical illustrates, the assumption of responsibility is not a relevant factor for maintaining that a right not to be unjustly deprived of life exists. Also, the couple may still have a means of getting out of their obligation to support the child, but their duty to the child does not end until they have appropriately transferred the care to someone else — through adoption, guardianship, or possible foster care. The only sense in which assumption of responsibility is pertinent is that one cannot just leave a child in a vulnerable position in which that person has created, and where the child is sure to suffer and/or die. The right of a small child to be given any form of necessary life-sustaining support exists as against anyone who is in the immediate position to provide such support, and not just the parent or parents.
Ease and proximity
Thompson goes on to explain that she is “arguing only that having a right to life does not guarantee having either a right to be given the use of or a right to be allowed continued use of another person’s body — even if one needs it for life itself.”  Again, there is a strong morally relevant difference between an act and an omission, and proximity is a morally pertinent factor when relating to omissions. Contrarily, Thompson claims it is “‘morally unacceptable’ to make the question of whether or not a man has a right to a thing turn on how easy it is to provide him with it. . . . (and that it is) rather a shocking idea that anyone’s rights should fade away and disappear as it gets harder and harder to accord them to him.” [39-40] I disagree. The issue of ease and burdens properly goes to the determination of what qualifies as “just” under various circumstances. For example, under our laws, if someone is confronted with lethal force (outside of his or her home) and has the opportunity to safely retreat, that person’s right to use deadly force in self-defense disappears because of the ease with which that person could escape unharmed from his or her attacker. This is deemed to be just because our society deems life to be more valued than mere retaliation or revenge.
Tipping the scales
Whenever rights conflict with other rights, we must always balance them against one another and decide what is just. It is just for a pregnant woman to prematurely terminate her pregnancy to save her life because in such a scenario, it is much harder for her to facilitate her unborn child’s right to life and it is much harder for her to fulfill her own duty to her unborn child. Although the inherent nature of the pregnancy is such that it results in immediate proximity and a unique ability of the woman to provide support, the burden of losing her own life is also considered and weighed against the benefit of the life of her unborn child. Here, the burden tips the scales. Justice is served when she is permitted to exercise her right to defend her life. It would simply be unjust to punish the woman for following a basic human instinct to preserve one’s own life — as long she uses the least drastic means to terminate her pregnancy, which is discussed below.
Contrary to the views of many of the extreme liberal defenders of abortion, Thompson does admit that “(w)e surely must all grant that there may be cases in which it would be morally indecent to detach a person from your body at the cost of his life,” but she still does not acknowledge a moral duty.  She says that in the cases of an hour-long “ordeal” with a violinist or an hour-long pregnancy, the person ought to wait it out, but should not be required to do so. Thompson still bases her argument on the fact that there was no “invitation” to the use of the violinist’s body or a mother’s body who was impregnated from a rape.
The box of chocolates
Thompson warns against the use of the word “ought” as implying a necessary “duty.” Attempting to demonstrate how “ought” and “duty” are not dependant upon one another, she deliberates a case where one brother is given a box of chocolates. He refuses to share the chocolates, and eats them while the other brother watches with envy. She says “it just does not follow from the truth (that he ought to share) that the (other) brother has any right to any of the chocolates.”  Thompson’s statement is certainly true, but an application of this narrow example to the discussion of abortion rights fails miserably. In the chocolate scenario, the right to which Thompson alludes as being improper to claim must be a fictitious right not to experience envy. The asserted right not to experience envy is then balanced against the right to the enjoyment of one’s own property. It simply does not follow from her chocolate illustration that it must, therefore, also be an improper usage of the word “right” to say that “an unborn child has a right not to be unjustly killed” merely because of the fact that one could also say that a woman “ought” not to abort. It is clear that Thompson has chosen to exercise a manipulative jump in her logic.
Chocolates and pregnancies
Thompson further compares a boy who refuses to share his chocolates to a woman who has an abortion with only an hour of her pregnancy left. She says both are “self-centered and callous, indecent in fact, but not unjust.”  Her purported comparison is so much more of a contrast, that Thompson makes clear her total lack of due consideration for the right not to be unjustly killed. A right not to be unjustly deprived of one’s life should not be likened to a fictitious and ridiculous right not to be unjustly deprived of someone else’s chocolate. The comparison is illogical and fails because there are no similarities to be drawn. It is unbelievable that someone could think not sharing a box of chocolates is in anyway remotely similar to the egregious abortion of an unborn child one hour before he or she is to be born! This type of drastically warped thought process on Thompson’s part simply goes to her lack of credibility as an open-minded philosopher of rights. She is far from main-stream, and her followers should be capable of understanding the ramifications and the extent of what Thompson really tells us about her way of thinking and her foundations.
Trumping a life
In wrapping up her argument in defense of elective abortion, Thompson insists “nobody is morally required to make large sacrifices, of health, of all other interests and concerns, of all other duties and commitments, for nine . . . months, in order to keep another person alive.”  Thompson is wrong. It would simply be morally unjust to permit lesser interests to trump a right to life. Mere inconvenience or trivial desires are not enough to outweigh a life or at least an undeniable future life.
Securing a death
Thompson does say, however, that she is “not arguing for the right to secure the death of the unborn child.”  In other words, if the child survives the abortion, “should it turn out to be possible to detach the child alive,” and the mother does not want to keep the child herself, nor does she want anyone else to have it through adoption, then she is not entitled to kill the child. For Thompson then, a newborn does have a right not to be unjustly killed.
The least drastic means
However, Thompson does not address the issue of whether a woman seeking an abortion has the duty to use the “least drastic means” in terms of selecting an abortion procedure. (I will assume here for my own purposes that the abortion would be in order to save the pregnant mother’s own life.) By “least drastic means,” that is to say, if it is possible to remove the viable unborn child through a Cesarean Section or by inducing labor in such a way and at such a time that the unborn child will surely survive afterwards, does the woman have a duty to have the abortion through this type of procedure? This would be as opposed to abortion procedures such as the following: the unborn child’s heart is shocked into stopping, then delivered dead by inducing labor; partial-birth abortion; the child is burned by saline, then delivered dead; the child is mutilated by dilation and curettage (“D & C”) or dilation and evacuation (“D & E”), — all resulting in the certain death of the unborn child. Surely a woman must have this duty to use the least drastic means if, as Thompson says, there is no “right to secure the death of the unborn child.” Intuitions (based on the balancing of interests) make it clear that it would also be unjust to allow the woman to have the unborn child mutilated when the child would otherwise surely live.
Premature termination of a pregnancy
The normal delivery of a healthy baby is the termination of a pregnancy, and inducing labor or a cesarean section is the premature termination of a pregnancy. One must ask what is the goal really? Is it to prematurely terminate the pregnancy to save the life of the mother, or is it to secure the death of the unborn child and to avoid liability for the abortionist? With such analysis, the “true colors” of the abortion advocates becomes clear, and “pro-abortion” is the accurate description. If a woman needs an abortion to save her own life, there philosophically must be a duty not to unjustly kill the unborn child, and the unborn child has a corresponding right. If there were no way to remove the unborn child that would preserve his or her life, then and only then would the killing not be unjust because the mother has the right to defend her own life. But if she could remove the unborn child from her womb while saving her own life and while saving the unborn child’s life, and then does not, then the killing would be unjust, because she is merely trying to secure the death of the unborn child. This just further illustrates that unborn children do have rights, even before they emerge out of the womb as babies.
X is a person
Michael Tooley’s essay entitled “Abortion and Infanticide” averts the issue of whether an unborn child really fits into the definition of a person by lunging into and focusing on the dispute as to whether an unborn child has a “right to life.” He tell his readers: “the sentence ‘X is a person’ will be synonymous with the sentence ‘X has a (serious) moral right to life.’”  Tooley disapproves of using the terms “person” and “human being” interchangeably because, he claims, it confuses the issues. He concedes a human unborn child is an “organism” which is a member of the species “homo sapiens.”  However, Tooley claims that “(d)ifference in species is not a morally relevant difference” when he compares the killing of an unborn human to an unborn kitten, and further insists a “morally significant property must be identified” which is different between humans and animals. 
Apes vs. unborn children
Tooley compares the psychological properties of an adult ape to a human unborn child, and he concludes that the ape is worthier of rights. Tooley maintains that the physiological differences of a human unborn child compared to any other animal fetus are not “morally significant by virtue of their causal consequences.”  By “causal consequences,” Tooley means that a human unborn child potentially becomes an adult human, and an ape fetus potentially becomes an adult ape. He says these causal consequences lead to later psychological differences which are morally relevant. Tooley further claims “the conservative position on abortion is acceptable if and only if the potentiality principle is acceptable.” He insists that it is unacceptable because of his own so-called “self-consciousness requirement,” in conjunction with what I refer to as his “psychologically-differential-property requirement.”
Concept of a self
Tooley’s self-consciousness requirement is enunciated as follows: “An organism possesses a serious right to life only if it possesses the concept of a self as a continuing subject of experiences and other mental states, and believes that it is itself such a continuing entity.”  Tooley believes this “cutoff point . . . is at least a morally safe one (and) any error it involves is on the side of caution.”  But, presumably, the morally proper “side of caution” for Tooley is the opposite side from an innocent life which may be unjustly killed! Risking error on the side where one concedes there may possibly be a life is surely immoral and, therefore, Tooley errs.
If A desires X
Tooley says “‘A has a right to X’ is roughly synonymous with ‘If A desires X, then others are under a prima facie obligation to refrain from actions that would deprive him of it.’” “Desire” is meant as “something more than behavioral dispositions,” and so, machines would not qualify as being capable of having rights under Tooley’s above criterion. Therefore, argues Tooley, “‘A has a right to X’ is roughly synonymous with ‘A is the sort of thing that is a subject of experiences and other mental states, A is capable of desiring X, and if A does desire X, then others are under a prima facie obligation to refrain from actions that would deprive him of it.’” 
Tooley suggests to his readers that if, by some future technology, an adult human’s brain were to be completely reprogrammed, then the resulting consequences would be that “an individual is destroyed, (and) an adult human’s right to life is violated, even though no biological organism had been killed.”
Therefore, he says, “the expression ‘right to life’ is misleading” because the actual concern “is not just the continued existence of a biological organism, but the right of a subject of experiences and other mental states to continue to exist.” Granted, some right has been violated in Tooley’s futuristic hypothetical, but such right is not the right to life. Of course, a violation of your right to retain your own memory and brain functions (a right not to have your brain reprogrammed, which probably stems from a right not to be unjustly caused grievous bodily injury) may very well be equally as egregious as a violation of a right not to be unjustly killed; however, Mr. Tooley is manipulating the concern here in order to further his own purposes. Keeping rights separate and giving them there own bases is crucial.
As part of Tooley’s formulation, he says “the desires one can have are limited by the concepts one possesses” and an entity must believe that it is now “a subject of experiences and other mental states” in order to be afforded rights.  Nevertheless, he does say three types of situations exist for “exceptions to the claim that if a person doesn’t desire something, one cannot violate his right to it.”
The first exception which Tooley makes is when “an individual’s desires reflect a state of emotional disturbance” and a psychiatrist has diagnosed it as temporary depression, so that if the individual is suicidal, the exception would dictate that his or her right to life is still capable of being violated. Tooley maintains that if this doctor were to facilitate the suicide, then he or she would have violated the individual’s right to life. By the same token, perhaps a pregnant woman with an unborn child whom she has not planned and does not want to parent herself, who is likely to be in a state of emotional disturbance, should be afforded the same caution, as well as the unborn child within her. After all, the pregnant mother’s desires may very well reflect a temporary state of emotional disturbance.
The second exception is made by Tooley when “a previously conscious individual is temporarily unconscious” whether sleeping, drugged, or temporarily comatose — which notably fails to include a significantly developmentally disabled person who may never have had any kind of understanding of his or her own existence. An unborn child is comparable to any temporarily unconscious individual, but has the most in common with the temporarily comatose individual, because an unborn child is likely to have similar brain function, and it is only temporarily an unborn child; therefore, unborn children should fall into this exception, and should have their basic human rights recognized, despite the fact that unborn children may or may not be able to desire to continue their existence or to have “experiences and other mental states.” Actually, ultrasounds performed of unborn children during abortions demonstrate that these unborn children resist, struggle, and “silently scream” out in pain, which is evidence that unborn children are capable of desiring their existence. Nevertheless, the same justifications for granting the exception for the temporarily unconscious individuals apply for unborn children.
The third circumstance for Tooley’s exceptions is when “an individual’s desires have been distorted by conditioning or by indoctrination” such as the “inculcation of irrational beliefs or by direct conditioning.” However, every member of society certainly has had his or her desires formed by conditioning or by indoctrination, otherwise known as education, guidance, training, experience, and positive reinforcement. There is nothing distorting about individuals’ natural life experiences. If someone is easily convinced by others, it is only because he or she chooses or allows themselves to be. A person “doesn’t know any better” until someone tells him or her “better,” and the person chooses whether or not to adopt those beliefs. People change their minds throughout their lives. Furthermore, I suppose “irrational” is to be solely defined by Tooley here. Otherwise, a woman with an unwanted pregnancy who desires an abortion can be said to have such a desire based on the “inculcation of irrational beliefs” of pro-abortionists, and she ought to be placed into Tooley’s exception as well. After all, she has been “conditioned to desire the absence of” her right to pregnancy and to bear children.
Tooley modifies his rights analysis thus: “an individual’s right to X can be violated not only when he desires X, but also when he would now desire X were it not for one of the following: (i) he is in an emotionally unbalanced state; (ii) he is temporarily unconscious; (iii) he has been conditioned to desire the absence of X.” He says, one must still “possess the concepts involved in the desire.” It is clear that Tooley means to target unborn children by causing them to be excluded in his own concept-of-the-desire requirement, but this would surely exclude a temporarily comatose individual as well. Therefore, Tooley is inconsistent and is found to contradict himself for the sake of his own theories and goals. As opposed to formulating an argument around a universal truth, Tooley is obviously attempting to custom-tailor his argument and its exceptions in his desire that unborn children would be excluded from any right to life.
The injected cat
Tooley further argues against the “potentiality principle,” which was earlier discussed, through the use of a hypothetical in which his readers are asked to suppose that a future, highly-technological chemical is injected into the brain of a kitten, which causes it to develop “into a cat having all the psychological capabilities characteristic of adult humans” so that the cat can think, use language, etc..  He then asserts that it would be “morally indefensible” to deprive the cat of “a serious right to life, (because) there would be no morally significant differences” from adult humans!
Tooley also argues that it would be permissible to kill the newborn kitten, instead of injecting it, because “the fact that one could initiate a causal process” that would afford it a right to life, does not mean it has the right beforehand. In other words, there is merely the possibility of transforming it. He says refraining from initiating the process, then, is “not seriously wrong.” Therefore, according to Tooley, interfering with the process is not wrong either, such as when a kitten is accidentally injected, but has not yet developed the morally relevant “properties.” He says one could either kill the kitten or inject it with a “neutralizing” chemical.
The analogy which Tooley is attempting to draw is that the potentialities are the same whether you are dealing with a human unborn child or his injected kitten. Tooley maintains “the only difference” is that the potentialities have been present in the human unborn child from the beginning of its development, but insists it “is a morally irrelevant difference.”  Even though his kitten hypothetical is obviously totally unrealistic, it does result in Tooley tripping himself up. If you will recall, in Tooley’s first hypothetical, where futuristic technology reprograms the adult human’s brain, he tells us that the concern “is not just the continued existence of a biological organism, but the right of a subject of experiences and other mental states to continue to exist.” There, he is not at all concerned with the life of the reprogrammed individual. Yet, in his second hypothetical about the kitten, Tooley is concerned with the life of the reprogrammed cat! Just as he acknowledges that a machine’s desires are artificial, and therefore, do not serve to afford it a human’s right to life, the chemically-reprogrammed cat’s desires are artificial, and so it does not have a human’s right to life either. (That is not to say it does not have a cat’s right to life — whatever that may be — but the definition of what amounts to an “unjust killing” certainly changes.) Therefore, the potentialities really are not the same for a kitten or an unborn child, and the “potentiality principle” of the “pro-life” position stands.
Torture vs. killing
Another appeal of Tooley’s in support of his “self-consciousness requirement” is his suggestion that most people consider it worse to torture a newborn kitten for an hour than to kill it, and that the opposite is true as applied to adult humans.  According to Tooley, although a newborn kitten does not have a serious right to life, the kitten does have a right not to be tortured because of its desire not to suffer pain. He claims this is true even though it lacks a self-concept and a “desire that a self not suffer, (but) it can desire that a given sensation not exist.”  Certainly, a sentience requirement (not to feel pain) is necessary in order to have a right not to be tortured. However, Tooley is again confusing issues. Both are morally wrong — killing and torture — but just because most people may consider it worse to kill an adult human than to torture him or her for an hour and the opposite may (or may not) be true for kittens, it does not mean that one must have self-consciousness in order to have a right to life. The issues are wholly unrelated.
Infanticide and the need to know
Tooley averts the issue as to when an organism fulfills its “self-consciousness requirement” by delegating this determination as “obviously a matter for detailed psychological investigation.” He goes further and tragically errs in committing himself to the notion that infanticide within a short time after birth “must be morally acceptable” because, he says, a newborn baby clearly does not meet his standard for self-consciousness!  Tooley believes that line-drawing for infanticide “is not troubling because there is no serious need to know the exact point at which a human infant acquires a right to life.”  Under this theory of Tooley’s, a human infant who has acquired a right to life under Tooley’s own standards could be killed, and Tooley would have no problem with it because he refuses to draw lines. Tooley is obviously not a man of morals, and surely most people would differ with his obscure and deranged philosophies. (However, Tooley has somehow found his way into acceptance by pro-abortion supporters and into pro-abortion literature.) Justice requires the balance to be made in favor of the infant’s life because there is a serious need to know if persons who have or may have admittedly attained a right to life may be killed. Life is our most valued and protected right. Tooley’s “side of caution” is clearly not the side which has a concern about erring and potentially killing a human life.
Tooley also believes “infanticide is morally permissible in most cases where it is otherwise desirable.”  “Otherwise desirable” could mean anything! It is difficult to even argue with Tooley on this issue. The immorality of elective infanticide — and for trivial reasons even — is so clear that one can realize we are dealing with an irrational person who is weighing the balance of rights and interests with a conscience that is vastly different from most rational and understanding people. Justice is basically a free-for-all with Tooley, and as long as any individual has a desire, that desire will outweigh any conflicts and pleasures will reign.
Animals vs. persons
Tooley concludes by telling us “the troubling worry is whether adult (non-human) animals . . . may not also possess a serious right to life” because, despite their inability to express themselves linguistically, they may still satisfy the “self-consciousness requirement.” He suggests that those who casually dismiss this claim “may turn out to be tragically mistaken” and that “our everyday treatment of animals is morally indefensible, and . . . we are in fact murdering innocent persons.”  I suggest the only one who is tragically mistaken is Michael Tooley. Animals may very well have rights, but they are not persons.
A good of its own
In his essay, “Is There a Right to Be Born?,” Joel Feinberg first discusses his requirement of “interests” in order for individuals to be “suitable subjects for the attribution of rights.”  He says an individual can be represented by proxies, through guardians or trustees for example, even if the individual has no “will” as such. Therefore, he would not require a subject to have conscious desires in order to be able to have rights, as Tooley does. Also, he maintains that an individual needs to have “interests” in order to have “a good of its own.” He points out that an object or “mere thing” cannot have its own interests. Thus, a machine would be incapable of having rights attributed to it. However, Feinberg says that “(p)ossession of interests by no means automatically confers any particular right or even any rights at all upon a being” because “(t)o have a right . . . is to have a claim . . . (which) is to be in a legitimate position to make certain demands against others.”  His language, “in a legitimate position,” does not mean in a physical position, of course, because Feinberg has already stated that one who is not in such a physical state as to be able to make demands against others can be represented by proxy, even without a desire to make any demands.
Protection of future interests
Feinberg concedes that unborn children conceptually can have rights, “even though they are temporarily incapable of having interests, because . . . it does make sense to protect a potential interest even before it has grown into actuality, and it is possible to protect that interest.”  However, contrary to what Feinberg implies, surely it is logical to say that an individual can currently have an “interest” (not as in a conscious one) in having a further future interest
Wants and purposes
Finding that “higher” animals are able to have rights such as the “right not to be treated cruelly,” Feinberg concludes that vegetables cannot have rights because “they must be compounded somehow out of wants and purposes.”  Likewise, he says, “human vegetables” (comatose individuals) lack the requisite “expectation, belief, and cognitive awareness” in order for them to have “wants and purposes” and therefore, rights. Thus, he excludes permanently comatose individuals from his classification of who is capable of having rights. However, he decides that deceased persons are able to have rights against us because certain interests will survive one’s death, although the desirer cannot experience contentment. For example, “the rights not to be falsely defamed to those who once knew and loved them.” Feinberg seriously contradicts himself here because he previously said that an individual is capable of having his or her rights represented by proxy even though he or she may not have a present “will” that there rights be protected. Now he says that “wants and purposes” are required in order to have rights. He makes an exception and grants rights to the deceased but not to comatose individuals and fails to explain why.
Perhaps Feinberg is simply getting ahead of himself because what he would really like to assert is that a comatose individual does not have a right to life, whether temporarily or permanently comatose, because such an assertion could then fit into his theory that an unborn child has no actual interest in being born.  By saying here that the deceased are capable of being attributed rights, and a comatose person is not, he is making an unsound argument. This is clear when one compares the interests involved which Feinberg says survive one’s death to the identical interests which may be pertinent to a comatose person. If a bequest or a contract of a deceased individual (obviously made before his or her death) can create rights against us, the same covenants made by a comatose individual will surely create the same obligations. Likewise, Feinberg’s own example of the right of the deceased not to be falsely defamed surely applies to comatose individuals as well. Therefore, Feinberg really cannot mean that a comatose individual is absolutely incapable of having rights against us. Furthermore, if deceased and comatose persons can have rights and interests, so too can an unborn child — even under Feinberg’s theory — because no will, purpose, or desire is necessary (although, as seen in the movie “The Silent Scream,” which shows the ultrasound of an abortion, an unborn child does demonstrate that he or she has a will, purpose, and desire to live.)
Using property law principles in an attempt to illustrate his point about rights and interests, Feinberg discusses “future interests” of the “unborn child” which, he says, are “contingent upon his birth.”  However, rights and interests of unborn children are not really contingent upon birth, but are in expectation of it. Feinberg explains how an unborn child can inherit an estate, but that the “right to use the funds is contingent upon his birth” and if the unborn child dies prior to birth, it “fails to take effect, and no one can claim through him . . . .”  Feinberg errs because such a fact does not make the unborn child’s right to the future use of the funds incapable of currently being protected. Thus, an unborn child is capable (although tragically not recognized under the terms of Roe v Wade) of having current rights which can be asserted by a representative (such as a guardian, guardian ad litem, “next friend” or public administrator appointed by a court if necessary) in the same way juveniles or individuals who are either mentally impaired, developmentally disabled, comatose or otherwise legally incapacitated are appointed such advocates on their behalf. The truth is not really that the unborn child’s “right to use the funds is contingent upon his birth,” but that his ability to use the funds is contingent — a big difference! Just like an adult who is either sleeping or comatose, the unborn child’s ability to use the funds is contingent upon his awakening, but his right is still there. This is true, even if the funds revert to someone other than his legatees if the comatose individual dies before he awakes. Until the heir’s death, the right still exists — whether he is an unconscious adult or an unborn child.
In utero injury
Another claim unborn children have which fits into what Feinberg calls “contingent rights” are rights “to be free of bodily injury that will handicap them after they are born.” This right has a “corresponding postnatal right” of an action in tort (personal injury law.) According to Feinberg, if an unborn child dies “in utero”, no one can sue on his or her behalf for wrongful death because his or her “right to be free of physical injury” is conditioned on being born alive.  This is simply a value judgment being made by Feinberg, and it does not necessarily follow as a logical conclusion to anything he has said thus far.
The “born alive” rule
Although some courts have required an unborn child to be born alive in order for an aggressor to be convicted of murder, this rule only exists because the common law definition of murder required the killing of a “human being.” Since murder had to be proven by the criminal standard of “beyond a reasonable doubt” and the courts were unsure of whether an unborn child qualifies as a human being, the “born alive” rule was conceived. The first case that addressed the issue of whether there can be a murder of an unborn child who is not born alive was a California case which involved a husband who kicked the stomach of his estranged pregnant wife, intending to kill her unborn child. The unborn child was born dead, and the court said the man could not be convicted of murder because “beyond a reasonable doubt” was the criminal standard for the burden of proof which needed to be applied to every element of the crime which included the element of the killing of a “human being.” Since the court could not be certain as to whether the unborn child was a human being beyond a reasonable doubt, the conviction was overturned.
The “suffering unborn child” rule
The California court’s decision caused quite a bit of controversy, provoking many of the state legislatures to change the definition of murder to “the killing a human being or fetus . . . .” Some courts have also required an unborn child to be born alive in order for a woman to be convicted, under any form of homicide, when the cause of death was the mother’s cocaine-usage. The requirement of being born alive does not make any moral or logical sense. What this criterion is actually requiring is that an unborn child fight for his or her life so much so that he or she is able to be born, to struggle in pain, and to gasp for one breath of air outside of the mother’s womb before dying. Then and only then, according to these courts, is the behavior which caused the death deemed to be punishable.
Punish the harm, not the behavior?
Clearly, it is not really the behavior which is then deemed punishable when the unborn child is subsequently born alive; instead, it is the court’s perception of the harm which occurs that the courts must consider to be the morally relevant difference to warrant punishment in one instance and not the other. This is true because the killer’s intent (“mens rea”) and the killer’s act (“actus reus”) are the same whether the act of violence results in the unborn child being born out of his or her mother’s womb dead or alive, and in only one instance is the behavior — the act of killing with the intent to kill — found to be unlawful! According to these courts, with one outcome there exists a duty, and with a slightly different outcome there is none. How can this be? Either there is an advanced duty to refrain from acts which may result in a child’s death just after the child’s birth or there is not. Therefore, the rationale of these courts must be the harm which they have perceived, and which the courts have deemed, to be materially relevant, though merely based upon the death occurring in a slightly different place, either with the child’s head outside of the womb or still in the birth canal.
Rewards and incentives
What this really means is that the swifter and inherently more dangerous killer is rewarded, while the one who does not kick quite hard enough or ingests a little less cocaine (so that the unborn child has a pulse for one moment outside of the womb) is punished. The distinction is illogical — the murderer who is actually of greater harm to society because he or she uses greater force, is not deemed to have had any duty to refrain from unjustly injuring the unborn child. On the other hand, the meeker killer is deemed to have a duty to refrain from unjustly injuring the unborn child. This is precisely what punishment is all about — holding individuals responsible for failing to abide by their legal duties. The courts in these cases have tragically erred. When injury occurs while an unborn child is still in his or her mother’s womb, it is abundantly clear that the rights and duties are really the same, whether the unborn child will die inside or outside of the womb. The killer has no way of knowing whether the unborn child will end up being born alive or born dead; therefore, that person has an undeniable advanced duty to refrain from unjustly causing injury to any unborn child. Any such injury to an unborn child is a breach of that duty, and the corresponding right of that unborn child not to be unjustly injured or killed has been violated — whether the child is subsequently born dead or alive. If judges and others would simply take the time to think this through before making a decision, they would find that there really is no other way of determining the duty without contradicting themselves. Consistency is the key element to establishing sound foundations in one’s arguments and in maintaining credibility, which the pro-abortion authors are unable to do.
Duty to refrain
Feinberg points out that the harmful conduct which caused the death of an unborn child could have occurred even before an unborn child was even conceived, such as with a pharmaceutical drug or where a mother acquires syphilis through a blood transfusion.  This would also be true for a mother with the AIDS virus. Again, if the unborn child is born alive, the courts would allow a mother to pursue a cause of action, but if the unborn child dies just a fraction of a second before his or her head extends out of the birth canal, she is denied the courts’ recognition that her child died unjustly, and the killer gets away. In one instance, the courts deem someone to have a duty not to do anything to a pregnant woman which might harm an unborn child, and in the other instance, there is deemed to be no such duty. However, in reality, the duty to refrain from such harmful conduct is always existent because there is no way of knowing in advance of what the outcome will be.
Death row mother
Feinberg discusses two instances where an “unconditional legal right to be born” has been found by courts. In the first case cited, a pregnant convicted murderess on death row was not granted her request to have her child die with her.  Feinberg disagrees with the court’s decision and claims that “(w)here the example is less complicated by guilt, the maternal prerogative principle is easier to apply.”  Certainly, guilt should not play a factor in differentiating when abortion is impermissible, but his example does make it easy to illustrate the way in which balancing occurs in order to have a just outcome. This woman really just wanted to secure the death of her unborn child. Her interest in wanting to secure the unborn child’s death and in avoiding the pregnancy, which actually had the effect of prolonging her own life, simply could not outweigh the interest in the child being born. Selfish, frivolous, and negligible desires do not trump a life or an undeniable future life which has already been created.
The Jehovah’s Witness
The second case involved a pregnant mother who was a Jehovah’s Witness and was refusing to submit to a life-saving blood transfusion, even though her unborn child was sure to die as well without the transfusion.  In that case, the woman’s right to her own religious beliefs was not denied — only her interest in practicing those beliefs was abridged to the extent in which exercising those beliefs would be harmful to someone else’s (the unborn child’s) life. This is because a life outweighs even other rights which we, as a civilized society, hold “sacred.” A “religious” group who believes in human sacrifice is not denied the right to its beliefs, but is denied its right to practice those beliefs to the extent human life is at stake. The innocent life and his or her right to life are simply more important and more valued.
Feinberg says “it is difficult to think of any other reason for ascribing any rights to (unborn children) other than on the assumption that they will in fact be born.”  Likewise, we ascribe rights to all humans on the assumption that they will in fact live on. In other words, we all have rights with regard to future benefits, despite the fact that we may die later today. The fact that we may die later today does not cause any reason not to assign rights and duties to people. Further, even if we somehow knew that someone was certain to die tomorrow, we would not then immediately begin taking away that person’s rights today. The assumption that unborn children will in fact be born is a very good reason for ascribing them rights. To suggest that an unborn child might die in a miscarriage is like saying a person could have a heart attack tomorrow. Contrary to what Feinberg suggests, it simply does not follow that it is then somehow inappropriate to ascribe rights to either of them now.
Torture vs. pregnancy
According to Feinberg, all human beings have “rights not to be exploited, or degraded, or treated in cruel or inhumane ways” just by being born human.  He says the right not to be physically tortured can never be justly infringed, and says it “seems more plausible than a . . . ‘fetal-human’ right to be born that can never be justly infringed.” Feinberg claims this is especially true when a conflict would involve forfeiture of already living persons’ fundamental interests.  His point in weighing these two rights (not to be physically tortured and an unborn child not to be unjustly killed) is unclear because they are not in conflict with one another. Deciding which one is “more plausible” or more important is of no significance here and the point in debating the issue is moot; unless of course, Feinberg is trying to equate pregnancy with physical torture! Many advocates of the right to elective abortion enjoy attempting to portray the two as being parallel, but that just simply is not the case. After all, pregnancy is the means by which we all got here — there is nothing unnatural about it. Torture, on the other hand, is unnatural. Also, the element of torture which makes it so egregious is the torturer’s sadistic intent to cause physical pain. No such element is present in pregnancy — whether by the unborn child or by the advocates of unborn children.
Promises to unborn children
Similar to Judith Jarvis Thompson’s line of reasoning, Feinberg maintains that “it is impossible to make a promise to a fetus” and he says, therefore, a pro-life argument that a right of an unborn child to be born can be derived from a promise is not valid. However, as has earlier been established, rights are not dependant on promises having been made. Instead, rights existbecause of the essence of one’s humanity.
A “right not to be born”
Feinberg goes into a lengthy argument about his claim that an unborn child has no “right to be born” and may instead have a “right not to be born.” First he says that it is to be expected that “an impoverished, husbandless, pregnant lady dying of consumption” would choose abortion, “at least insofar as (she is) exclusively concerned with the welfare of the potential child.”  However, such a choice could never be expected, but may possibly be understood if the woman was about to die before the child would be born. (After all, she was “dying of consumption.”) If it were otherwise, the fate of her child could turn out just fine. She has no way of knowing, and neither do we, how the life of the child would turn out. Therefore, it is inaccurate to say that abortion is justified out of a single, impoverished mother’s “concern” for the welfare of the child. In fact, the exact opposite would be true. Fortunately, we do not live in a society which considers it to be “welfare” or to be “justice” to go out and kill someone who is impoverished, single, or dying.
Feinberg further says that “if the circumstances are very unhappy one . . . (such as) prenatal damage, poverty, malnutrition, (or) no father . . . (and) the child is allowed to be born” even though his or her future interests have been blocked and his or her rights to the protection of his or her interests have been violated, “that fact seems to me to be a very good reason for not permitting it to be born . . . (and) that nonbirth is something we now owe it, that . . . can now be claimed on its behalf as its due.” Perhaps Feinberg would believe in killing every infant and child who lives in poverty, without a father, and who may even have birth defects. Perhaps this would be mercy killing to him, and in some warped way he could find what he would believe to be a duty to support it. Plenty of people in this world have lived and are currently living under such non-ideal circumstances, but still prefer to have their lives all the same. All children, born or unborn, ought to at least be given the opportunity to make the choice as to the value of their lives, and how they will deal with those circumstances. Many people are born under Feinberg’s so-called “unhappy” circumstances but nonetheless end up with very fulfilling lives, whether they were adopted by other’s or parented by their birth mothers. In order to claim the right to have an abortion as a just killing and allegedly “in defense of another,” one needs to be very certain that, objectively, the mother’s life is in danger and that the means of terminating the pregnancy is the least drastic.
Killing the victim
Feinberg also claims that when we have knowledge of the destruction of the unborn child’s future interests and still permit him or her to be born, “we become a party to the violation of his rights.”  He says that “the only noncontingent rights fetuses ever have is the right not to be born,” but he says it was based on unborn children’s future interests. Feinberg is clearly confusing two rights of an unborn child with one another. Certainly, when any of an unborn child’s future interests have been destroyed, someone has violated the unborn child’s rights, and other individuals may have permitted those rights to be violated by wrongfully failing to enforce the unborn child’s rights; however, the remedy is not to kill the unborn child! No relationship to the duty to protect exists in such a case. If an adult’s rights have been violated, and the interest failed to be protected by others — such as when an adult is in the vulnerable position of being asleep or unconscious — the solution is not to kill the vulnerable person. The proper remedy is to try to do what you can by identifying the individual who had a duty and who violated that duty, and who is responsible for abridging the vulnerable individual’s right to his or her future interests (to which one must have had a right in the first place.) Then you hold the wrongful party accountable by requiring that individual to make the injured party “whole.” Even if it is impossible to structure an adequate remedy at law for a harm which has been done, it simply does not follow that you kill the victim!
“Wrongful birth” suit
Feinberg points to a “wrongful birth” suit which won at trial but was overturned on appeal as being inappropriate for legal action. [216-8] On behalf of an infant girl, a claim was made against the state because the girl was conceived when her mentally incompetent mother, while a patient in a state psychiatric hospital, was raped by a male attendant who was employed by the hospital. The gist of the claim was that the infant girl had been deprived of her property
rights, a normal childhood and home, proper parental care, support and rearing, and was “caused to bear the stigma of illegitimacy.” The appellate court said that encouragement of this sort of claim “would extend to all others born into the world under conditions they might regard as adverse.” On the other hand, Feinberg claims: “to be dealt feeble-mindedness or syphilis, or advance heroin addiction, or guaranteed malnutrition, or economic deprivation . . . . (is) a
swindle.” He believes “the duty of the state . . . (is) a duty of care owed to anybody likely to be affected by its conduct . . . .” However, the duty of care is to prevent the harm of the rape from occurring, and the remedy is to attempt to make the mother “whole” by awarding her appropriate damages for the rape, securing her protection against future assaults, and ensuring the future welfare of her child. In Feinberg’s example, there were no compensatory damages to
be given to the child under the “wrongful birth” theory because the position in which she would have been had the rape not occurred would have been that she was non-existent, and the position in which she would have been had the state performed an abortion would have been that of an aborted unborn child.
Michigan’s “wrongful birth” lawsuits
Here in my home state, as of the most recent case as of the last edit of this writing, the Michigan Court of Appeals has found wrongful birth claims to be invalid as against public policy. (See Brandy Taylor et al v. Surender Kurapati M.D. and Annapolis Hospital, 1999.) However, in an earlier case, the court found a valid cause of action in which a woman who gave birth to a child born with Down’s Syndrome sued her doctor and the hospital in the county Circuit Court. She
claimed that, had the doctor and hospital tested her unborn child for Down’s Syndrome and had they told her that her child would be born with Down’s Syndrome, she would have aborted her child. Thankfully, this case was effectively overturned.
The legitimization of wrongful birth suits has several ramifications. First, it devalues the life of this woman’s child and the lives of every person now living who has Down’s Syndrome or any other “birth defect.” Secondly, it opens the door for lawsuits from women claiming that, had they been told they would give birth to a girl instead of a boy, they would have aborted. The courts would then have to determine the value of the girl’s non-existence vs. existence. The argument would probably be focussed on a claim to a universal and “fundamental” right to elective abortion under Roe v. Wade, no matter what the intent or goals of the mother were. Next, it creates a standard of care in the medical field that would require doctors and hospitals to test pregnant women earlier and earlier for birth abnormalities in order that their “window of opportunity” to abort would be open pursuant to Roe v. Wade’s trimester scheme. This would then cause more and more doctors to be wrong when prognosticating because the sooner they test, the higher the margin of error is. Many of us know women who were told that their children would be born with birth defects, and ended up having healthy babies.
The last ramification which would perhaps be the scariest to most people — whether they identify themselves as “pro-life” or “pro-choice” — is that perfectly healthy babies will be aborted because doctors are not going to risk being wrong or risk waiting to test, and women will be denied any claims for wrongful abortions of healthy babies because of the previously discussed “born alive rule.” For example, in Michigan, we had the born alive rule for many years. Even
if a woman was able to secure the body of her aborted unborn child and was able to take the body for a second opinion as to whether the baby had any anomalies, she would have no recourse if she later discovered that her unborn baby was healthy and the doctor was wrong. Even a doctor’s gross
negligence would not create a cause of action because the child was aborted and was, therefore, born dead. However, Michigan passed a new law — the Prenatal Protection Act — in the Fall of 1998, which protects women from harm to their unborn children, thereby significantly curtailing the “born alive rule” in Michigan. Incidentally, the abortion advocates, showing their true agenda, fought vigorously not to have these women protected for fear it could later impact
on abortion law.
The “born alive rule” is one of the reasons why many abortionists are choosing partial-birth abortion as their preferred means of aborting unborn children. The baby is turned in the breach position by the abortionist with the guide of ultrasound, the baby is then delivered feet-first only up to the base of his or her skull. The base of the baby’s skull is then pierced with scissors and spread open, a tube is inserted, and the baby’s brain is suctioned out while his or her head collapses — all prior to the baby’s head being delivered out of the womb. This satisfies the courts’ requirement that a baby be born dead in order for a doctor who has or who may have committed malpractice to be able to get away with it. If the baby is removed by Cesarian section or by induced labor and the baby is born alive, and if the baby then dies, the doctor may be exposed to a malpractice claim by the mother if the doctor breached a duty of care owed to the mother and the baby. Therefore, abortionists have a vested interest in ensuring that all unborn children are removed from their mother’s wombs by the worst drastic means, with no possibility of life. This is also an inherent conflict of interest since most pregnant women are first interested in preserving their own lives and health, but are also interested in having a baby if possible. The absurdity of the abortionists’ interest just further demonstrates the inherent problem with a failure to recognize that unborn children have a right not to be unjustly killed.
Feinberg has amazingly attempted to justify a universal right to elective abortion on the basis that someday a child or adult who is unhappy with his or her life may bring a lawsuit for having been born — essentially, for being alive! No matter what Feinberg may think, the mere threat or potential for a lawsuit is not a justification for abortion. If a mother does not want to abort her unborn baby when her unborn baby’s “future interests” may have already been destroyed, Feinberg would see a duty on everyone else’s part to prevent the child from being born — thus, advocating mandatory abortions whenever he, or others, have determined that the child’s life would not be worth allowing to occur. Clearly, this notion of Feinberg’s echoes the sentiments of Adolph Hitler and Nazi Germany.
Being around to complain
Feinberg says that when a potential person is aborted and, therefore, denied the “chance to be born into a life quite sure to give him love and wealth and fulfillment . . . , there is no person around to complain that he himself was wronged.”  But it is not necessary to have the child “around to complain” in order to maintain that the aborted child has born wronged. In any wrongful death or criminal homicide action, someone else “complains” on behalf of the unjustly killed individual, whether that person is the next of kin as a “Next Friend” or the government on behalf of the people, as it is a crime against society. If, under Feinberg’s theory, the aborted child actually needed to be “around to complain” in order to demonstrate that the aborted child was wronged, then it would follow that anyone who is ever unjustly killed would not be “around to complain that he himself was wronged” and every killer in our society would literally be getting away with murder.
“Never knows what hits him”
In justifying denial of this unborn child’s right to be born, Feinberg says that “the fetus with no chance becomes a human being who gets badly hurt, but the fetus with the glittering future never learns what he is missing and never ‘knows what hits him.’” However, this argument could be applied the same way to any person who has a “glittering future” and is murdered while in an oblivious state — such as when a person is sleeping or unconscious. Although the incognizant victim may “never learn() what he is missing and never ‘knows what hits him,’”: the denial of his right to continue living clearly is not justified. Perhaps Feinberg would say it is all right to deny this person the remainder of his life or his “future” life on the basis that he “never knows what hits him” because he was killed in his sleep. Then again, his own theory may justify the denial of Feinberg’s own right to life and his own murder on the bases that Feinberg was sleeping, he would not know what he is missing in the future, and he would no longer know the difference, so what does it matter?
Feinberg says that in the case of the first unborn child “with no chance,” one can claim that the child, once born, suffers harm, whereas with the second unborn child “with a glittering future,” one can only claim “mere nonbenefit” on behalf of the aborted child.  Again, one could then claim that an unconscious or sleeping individual does not suffer harm if murdered and can only claim “mere nonbenefit.” This is further illustrated if the person was about to receive a lot of money or some other benefit. In actuality, that person, as well as the unborn child, does have a right to his or her claim of “nonbenefit.” Also, whatever harm Feinberg’s first unborn child suffered by being born (and to the extent that the child had a right to be free from that harm and someone violated a duty with respect to such right,) then a remedy can be fashioned accordingly so that the child can theoretically be made “whole” under the law. For example, if someone raids a trust fund, the unborn child’s right to the trust fund can still be protected, and an adequate remedy would be money damages for the funds which were wrongfully taken.
A crime against society
Feinberg maintains that “(w)hen a fetus with a promising future is aborted, neither he nor any other existing being is harmed by it . . . .” Presumably then, Feinberg would hold this to be true even if he (pursuant to his euthanistic-vigilante notions about having a duty to abort unborn children) went further and aborted an unborn child which a mother wanted to keep, but which Feinberg felt he had a duty to abort. Again, under the “born alive rule”, the woman would have no recourse against Feinberg for doing so. It seems clear that he would maintain that in such a scenario, no “other existing being is harmed by it . . . .” However, someone in addition to the unborn child is harmed when an unborn child is aborted — either a relative as the child’s “Next Friend” or the state as a representative of the people of the state. Just as when a mother kills her child or a husband kills his wife, the state steps in to punish for the violation because the homicide is considered to be a crime against the state and against society. In other words, society as a whole is harmed when anyone is unjustly killed.
If a tree falls . . .
Just because someone has no family or friends who would directly feel the pain and the “harm” of his or her unjust killing, does not mean that the lonesome person is a free target for murder. It’s like the old question, “if a tree falls in a forest and no one is around to hear, does it make a noise?” The answer is “yes!” Whenever anyone is unjustly killed, we are all harmed by the killing, and that is why we have our criminal laws. Feinberg had previously acknowledged that individuals’ rights can be represented by others on their behalf. Therefore, there can be no right to elective abortions on the basis that no one can assert or enforce the unborn child’s right because such is simply untrue. A family member or friend as “Next Friend,” a guardian ad litem representing the child’s best interests, or a prosecutor representing the people of the state can assert and/or enforce the unborn child’s right not to be (and/or not to have
been) unjustly killed.
JOAN C. CALLAHAN
Human being vs. person
Joan C. Callahan, in her essay, “The Fetus and Fundamental Rights,” admits that “unquestionably, human fetuses are, from the earliest stages, alive,” but says the relevant “issue is not when human life begins, . . . (but) whether the living human fetus should be recognized as a bearer of the same range of fundamental moral rights” which humans who have been born have. [117-8] She differentiates an unborn child from a “person” by saying that a human being is a homo sapien, but that a “person” is a bearer of the strongest moral rights. In her mind, one is a biological claim and one is a moral claim.
Defining the unborn
Paternity laws analyze whether a child has been born or conceived during a marriage; then the husband at the time of conception is presumed to be the biological father — not whether a child was born or a fetus conceived during the marriage. Black’s Law Dictionary, 5th Edition, defines “fetus” as “unborn child” and defines “unborn child” as “the individual human life in existence and developing from fertilization until birth.” Black’s Law dictionary also defines “child” and “children” as “progeny; offspring of parentage. Unborn or recently born human being.” The American Heritage dictionary, 3rd Edition, defines “fetus” as “in human beings, the unborn young,” and includes in its definition of child “an unborn infant; a fetus.” Webster’s dictionary also defines “fetus” as “unborn child.” Except in the neonatal intensive care unit of hospitals, we do not call a newborn a “neonate,” so why would anyone call an unborn child a “fetus?” I assert that the answer lies in abortion supporters’ intentions to de-humanize human unborn children.
Acorns vs. unborn children
Callahan accepts that a “conceptus” (an unborn child at conception) is the beginning of the life of a future person, but using the same exact argument which Thompson makes, Callahan says an unborn child is to a person, what an acorn is to an oak tree. Because of the fact that they are unlike, (which she says we “settle the issue by setting a convention which does not seem counter-intuitive. . . , “) we must therefore, says Callahan, “sit down and decide whether fetuses are to be recognized as full-fledged persons as a matter of public policy.” 
The comatose “E.T.”
In an effort to support her theory that the distinction between an unborn child and a person is relevant, Callahan uses the title character from the movie “E.T.” (“The Extra Terrestrial”) as an illustration. She claims that “E.T.” is a person with fundamental rights because of his characteristics such as the capacity to suffer mental and physical pain, the ability to make plans, a sense of himself as an ongoing being, and such — all of which, she says, unborn children do not have. [117-9] However, if one recalls the movie, when “E.T.” slipped into a coma, he no longer had these specific characteristics which Callahan has emphasized. As was the intent of the movie’s director, Steven Spielberg, the audience still felt “E.T.” had a fundamental right not to be unjustly killed by the N.A.S.A. researchers. In fact, the scene in which the boy, “Eliot,” was crying over the comatose “E.T.” was probably the most memorable and moving moment in the whole film! Obviously, as “E.T.” has demonstrated for us better than Callahan could herself, there is something other than simply having characteristics such as the capacity to suffer mental and physical pain, the ability to make plans, and a sense of one’s self as an ongoing being, which is relevant for establishing rights. That “something” must be the potential for having these traits and therefore, unborn children fit into the definition of a person, as well as the comatose “E.T.”.
Callahan says an unborn child is merely a “potential person” or “person-not-yet.” However, as has been illustrated, the potential for personhood, along with its characteristics, are enough for fundamental rights to attach. 
Unwilling life support
Callahan also maintains that infants do not have any of her requisite traits for recognizing personhood, but says that other considerations suggest that birth is the most ideal and non-arbitrary place to attach fundamental right.  Such factors, according to Callahan, include the ability and interest of others to care for the infants, and the fact that they are “now biologically independent beings that can be sustained without forcing an unwilling woman to serve as a life support.” 
A deserted island
However, consider a scenario where a woman is stranded on a deserted island with her new-born infant, or, if one were to prefer the situation to be more proximate, the woman and her child can be stranded in a vacant house in Detroit during a snow storm. In either of these situations, the new-born infant cannot “be sustained without forcing an unwilling woman to serve as a life support.” Therefore, the “viable emergence” distinction (as Callahan labels it) must not be relevant. This is clear because, in either of the “stranded mother” scenarios, we would hold the mother to a duty to breast feed if no formula is available. To permit the mother to starve the child to death out of her selfish desire not to be inconvenienced or to have her “freedom of choice” to decide what she can do with her own body would clearly be unjust, and the infant would have been unjustly killed if starved in such a manner. Likewise, the same duty exists when the baby is older or when the person in the unique position is a man. Someone must still act as “life support” to feed and sustain the baby. In other words, infants are clearly not fully and necessarily “biologically independent beings that can be sustained without forcing an unwilling woman to serve as a life support,” as Callahan has suggested.
Maintaining the same position as Thompson, Callahan says that the right to an elective abortion is not a right to secure the death of the unborn child, because to allow such would be equivalent to infanticide. She says that one “can justify a requirement to sustain viable fetuses that survive abortion.”  Again, this suggests that one could require sustaining a viable unborn child which could survive an abortion. In other words, one could require a Cesarian section in such a case if such is the least drastic means by which to safely remove the child from his or her mother’s womb. Also, once outside the womb, the baby is no longer what Callahan refers to as a “viable fetus . . . (which) survive(d) abortion.” Instead, the baby is, by Callahan’s own definition, clearly a “person” at such time. This is despite the fact that such an infant delivered out of his mother’s womb by Cesarian section was not technically “born” but was, as Shakespeare so eloquently phrased it in his play, Macbeth: “from his mother’s womb, untimely ripped.”
To the extent an unborn child can feel pain during the pregnancy, Callahan believes the abortion must specifically be shown to be “otherwise justifiable” because, she says, just as with kittens, an unborn child has “a strong moral right not to be treated cruelly.”  She indicates that if an unborn child cannot feel pain, then the killing of an unborn child could never be unjust by her standards. However, she then claims that any reason for wanting an abortion is justified, simply because of “the exquisite intimacy of pregnancy.”  It is amazing how some elements of our society will attempt to justify or excuse violence whenever it is linked to intimacy or labelled “domestic.”
“The Silent Scream”
If anyone has ever seen the film, “The Silent Scream,” they would have witnessed, and they would have a clear understanding, that unborn children do feel incredible pain as they are aborted and killed. The film was created by a former abortionist who had a theory that unborn children experience significant pain during abortions. This doctor received permission from a practicing abortionist to perform an ultrasound during the abortion of an unborn child during the first ten weeks in his mother’s womb. Just as the former abortionist suspected, the unborn child “silently screamed,” kicked, stretched and fought back until he was dead. The horror of seeing the unborn child’s head toss back, mouth open wide and fists clench, caused the attending abortionist to never perform an abortion again. Perhaps if Callahan actually witnessed this atrocity, she would set her standards differently.
Finally, Callahan sums up what she considers to be the two major implications of treating “fetuses as beings with the full range of fundamental moral rights.”  First, she admits that abortion in the case of rape would have to be ruled out if unborn children were to be treated as “beings with the full range of fundamental moral rights” for the same reasons which Judith Jarvis Thompson maintains: “Fundamental rights are not a consequence of where someone came from.”  It appears as though universal abortions on demand would be more comfortable for Callahan because she obviously desires that there be some way to allow abortions in cases of rape, despite the fact that it would go against her own philosophy of rights theory. The second ramification which she claims is that (again like Thompson’s idea) in cases of a threat to a mother’s life, a state cannot prefer either the mother or the unborn child over the other. However, Callahan errs because a state actually can “prefer” an innocent non-aggressor over an innocent aggressor, by choosing not to punish the innocent non-aggressor for defending her own life, as was discussed earlier.
“Years until it is a human being”
In his essay “Concerning Abortion: An Attempt at a Rational View,” Charles Hartshone explains that the egg and the unborn child are both human in origin, but says that a fertilized egg cell cannot speak, reason or judge between right and wrong, and cannot have personal relations for months, or even years until it is a human being. Even then, he says, the ability to speak, reason, or judge is only acquired when others have taken pains to help the child.  Under this theory, an adult who has been kept in a closet since birth, or who perhaps has grown up alone in the wilderness — without the benefit of someone having taken pains to help him or her to acquire the ability to speak, reason, or judge between right and wrong — would not be considered by Hartshone to be a human being because the individual would not have had such personal relations. Also, a temporarily or permanently comatose individual cannot speak, reason or judge between right and wrong, and cannot have personal relations. Similarly, a developmentally disabled or mentally ill person may not be capable of those functions either. This leaves Hartshone in a position of having to find, under his articulated standards, that individuals who are comatose, unconscious, developmentally disabled, or mentally ill not to be human beings.
The genetic code
He labels an unborn child as being either a “subhuman animal” or a “possible individual” as compared to a being which is an “actual person.” Hartshone says the unborn child will be an actual person only in possible or probable destiny.  He claims that it is the nervous system which counts for individuality, and says that a very premature baby’s nervous system is like a pig’s. However, as John Noonan points out in “Deciding Who is Human,” the full genetic code is present from conception, along with the potential capacity for rational thought.  A child’s gender, eye color, hair color, and the entire genetic map for his or her body is present from the moment of conception. Not only are we talking about children, but boys and girls. Hartshone points out that identical twins have the same gene combination and suggests that somehow this is relevant to a question of whether a distinct person can exist at conception.  However, this is insignificant as a counter-argument for establishing personhood because with identical twins, there are simply two persons present. It is also interesting to note that even identical twins each have their own unique fingerprints.
Hopelessly or permanently an unborn child
In response to the assertion that “if comatose individuals are considered person and have a right not to be unjustly killed, then fetuses should too,” Hartshone contends that “the killing of a hopelessly senile person or one in a permanent coma,” is not equivalent to the killing of persons in the full sense!  He seems to think that a “hopelessly senile person” and “one in a permanent coma” have something less than the right not to be unjustly killed. Not many rational-minded individuals would agree with Hartshone on such a position. Note how Hartshone painstakingly avoids addressing the status of a non-“hopelessly senile person,” or a person in a temporary coma. It is crucial to address these particular issues because, after all, an unborn child is not “hopelessly” an unborn child, nor is he or she permanently an unborn child. There is no sense of despair to be attached to the unborn child, as there may potentially be with a “hopelessly senile person” or “one in a permanent coma.”
“No such ‘I’ to miss it”
Hartshone tells his readers: “I feel no indignation or horror at contemplating the idea the world might have had to do without me. The world could have managed, and as for what I would have missed, there would be no such ‘I’ to miss it.”  Assuming Hartshone’s statement is true, and as it is intended to support the idea that abortion is permissible, it also supports the just permissibility of killing Mr. Hartshone today. After all, he does not mind that the world would go on after his killing, thus being without him, and “there would be no such (Hartshone) to miss it.” The argument that an unborn child would never know the difference anyway if he or she had been aborted is a common one, but the same argument supports the murder of any human being. Therefore, it is clearly negligible.
Finally, the world would be much different if Moses or Jesus, Einstein or Newton, Rosa Parks or Martin Luther King, Jr., or simply any person had been aborted. The world may in fact be much different now because of people who have been aborted. Mother Theresa shared that she had been praying to God as to why he had not sent someone to find a cure for the A.I.D.S. virus. After praying for many days, she said she finally received an answer from God. His response, she said, was that He had sent someone, but that person had been aborted. Whether you are a spiritual person or not, you must realize that the world is necessarily different because of those who have been aborted. There is a famous and telling saying from an author unknown, “A hundred years from now, it will not matter what kind of house I lived in, what kind of car I drove, or what my bank account was, but the world may be a different place because I was important in the life of a child.”
A few other authors offer similar definitions of what constitutes personhood or human life. The following paragraphs present a sketch of a few additional writers’ theories regarding personhood.
MARY ANNE WARREN
In an article entitled “On the Moral and Legal Status of Abortion,” Mary Anne Warren maintains that an unborn child is not a person, and offers a “rough and approximate list of the most basic criteria of personhood . . . or humanity in the moral sense: 
“(1) consciousness (of objects and events external and/or internal to the being), and in particular to feel pain;
“(2) reasoning (the developed capacity to solve new and relatively complex problems);
“(3) self-motivated activity (activity which is relatively independent of either genetic or direct external control);
“(4) the capacity to communicate, by whatever means, messages of an indefinite number of possible contents, but on indefinitely many possible topics;
“(5) the presence of self-concepts, and self-awareness, either individual or racial, or both.”
She has just excluded about half of our society from a right not to be unjustly killed! Many developmentally disabled persons may not meet some or any of the requirements. Some individuals exist who do not meet the sentience requirement. Most children and even some adults will fail the reasoning requirement because of an incapacity “to solve new and relatively complex problems.” Certainly most babies do not meet the third and fourth requirements. Lastly, it is rare to find adults who truly have a defined self-concept and self-awareness. Many people will spend their entire lives trying to figure that one out, but nevertheless, still have a right not to be unjustly killed.
Warren says that a person need not have all of these, and that (1), (2), and maybe (3) are sufficient and are “good candidates for necessary conditions.” She further states that in order to show that an unborn child is not a person, one needs only to find that the unborn child does not satisfy any of these conditions. Warren falsely claims such has already been established: “I consider this claim to be so obvious that I think anyone who denied it . . . would thereby demonstrate that he had no notion at all of what a person is.”  Furthermore, she says, “(i)f the opponents of abortion were to deny the appropriateness of these five criteria, I do not know what further arguments would convince them. We would probably have to admit that our conceptual schemes were indeed irreconcilably different, and that our disputes could not be settled objectively.” 
Warren may feel that those who disagree with her have “no notion at all of what a person is,” but her theory on personhood has lead her to her own astonishing and unexplainable conclusion: “Some human beings are not people, and there may well be people who are not human beings.”  This statement of hers makes no logical sense whatsoever, and I am proudly forced to agree with her assessment that “our conceptual schemes (are) indeed irreconcilably different.”
Robots and moral rights
Warren alienates herself further from the rest of the rational-thinking world when she insists that highly advanced robots or computers should be recognized “as people in the fullest sense, and . . . (we should) respect their moral rights!”  It is unclear what her basis is for asserting that robots are people. Perhaps she has fallen hopelessly in love and is having a meaningful romantic affair with one — who knows? Warren then confuses her readers more by asserting that if an “entity” is not a person, then it is “absurd” to assign rights and duties toward it; yet, she does not explain why she advocates that highly advanced robots or computers should be afforded moral rights. Her definition of “absurd” seems to be rather warped given that she would assign moral rights and duties to robots and computers!
In her work entitled “Abortion and the Concept of a Person,” Jane English says that a person is a cluster of features which are more- or less-typically found. These features are biological, psychological, social, legal, and are also related to rationality.  She says that an advanced robot could meet all of these factors, but still fail to be a person. Therefore, unlike Warren, English maintains that “being alive” is a necessary prerequisite for personhood. However, she finds that a conclusive answer as to whether an unborn child is a person is unattainable. 
What to do with uncertainty
Even if we can concede that an unborn child might possibly be a person or a human being, or that we are not absolutely certain as to whether an unborn child is or is not a person, then that should be enough to warrant assigning a right not to be unjustly killed to all unborn children. After all, if you were in your automobile, pulling out of your driveway, and you thought there might be an unseen person behind your vehicle, you simply would not proceed down your driveway without knowing for sure that there was not a person hidden outside of your view behind your car. To proceed otherwise would be engaging in a reckless disregard for someone else’s life, or even gross negligence, and you would have thereby breached your basic duty of care owed to all individuals not to act unreasonably and thereby causing them harm. “But for” your negligence in failing to be certain as to whether there was a person in harm’s way, even though the person was unseen, a human life may have been unjustly killed. Because the error could be so great if we are wrong — the unjust killing of a human being — we ought to err on the side of caution where, admittedly, there might be a human being or a person, because human life is precious.
On the side of rights for unborn children, Sidney Callahan, in her article “Abortion and the Sexual Agenda,” explains that “human development is a continuum” so that the continuous development of unborn children is no different from all humans’ development.  I may not look the same as I did when I was four years old or four days old in my mother’s womb, but that was undeniably still me.
HARRY J. GENSLER
Harry J. Gensler characterizes the three senses of being human in his essay entitled “An Appeal for Consistency.” Those three senses of being human are: “rational animal,” “genetic,” and “population-study.” Gensler says it “depends on what is meant by ‘human.’”  He describes the various claims and/or theories as to when human life begins:
“(1) at conception;
“(2) when individuality is assured (and the zygote cannot split or fuse with another);
“(3) when the fetus exhibits brain waves;
“(4) when the fetus could live apart;
“(5) at birth; and
“(6) when the being becomes self-conscious and rational.” 
Gensler says we must decide which sense to use, but that scientific data and our own intuitions cannot help in choosing which sense is the most appropriate one. According to him, one should be consistent in all of his or her arguments and applications in order to justify the selection of criteria, and in order to lend credence to one’s own arguments. I agree with Gensler. All of my above arguments are based on an appeal to consistency without any “convenient exceptions.” Gensler mentions at the end of his article that someone may wish to hear an argument as to why one should be consistent, but, he points out, “in effect” such person is saying that he or she has “a closed mind.”  I would describe such a person as being arbitrary and as making a willful decision to be irrational.
Certainly, an unborn child is human in nature, growing and developing at every moment, and living. Just think, if scientists found an unborn child just after conception — a “cluster of cells” — on the planet Mars or on Antarctica, the next day world headlines would read: “Scientists Have Found Life on Mars” and our president would be making a special televised address to the nation to announce these “spectacular” findings that scientists have found life. We would then be spending billions of dollars to probe Mars in search of a little water and nutrients because they know, that with a little nourishing, life can flourish. When those were the headlines in the summer of 1997, all that was found was the fossil of a cell on a rock believed to be from Mars — just look at all the fuss that is made. Yet, when certain scientists find the same “glob of tissues” in a woman’s womb which actually contains the full genetic code of a brand new human being, they claim they don’t really know what it is or that “it’s not life.” Can you imagine what the controversy and resulting punishment would be if someone were to destroy the fossil of a cell on the rock believed to be from Mars? This is a sad commentary.
The right of the unborn child not to be unjustly killed
An unborn child should be assigned the same rights as any person because an unborn child is human, is alive, is growing and developing, and is undeniably at the very least a living human being, with the full genetic code establishing whether he or she is a boy or a girl. Also, unborn children are capable of having rights and are capable of having their rights protected. Any uncertainty should err on the side of caution with regard to protecting a human life because the risk that one may unjustly kill a human being would result in too great of a harm. In addition, it is an indisputable fact that an unborn child is a living human being since no human “fetus” has ever been known to develop into a dolphin, a rabbit, or a carrot. Therefore, every unborn child should be treated as a person, and granted the universal human fundamental right not to be unjustly killed. Finally, self-defense as against an innocent aggressor is justifiable when one’s life is in danger; thus, an unborn child may only be justly killed in order to save the life of the mother.
The Ethics of Abortion, edited by Robert M. Baird and Stuart E.
Rosenbaum. Pormetheus Books, Buffalo, New York, 1989. A
collection of reprinted articles on abortion, including:
Callahan, Joan C., “The Fetus and Fundamental Rights.”
Commonweal, (April 11, 1986); 203-209.
Callahan, Sidney, “Abortion and the Sexual Agenda.”
Commonweal, (April 25, 1986); 232-238
English, Jane, “Abortion and the Concept of a Person.”
Canadian Journal of Philosophy, vol. 5, no. 2
(October 1975); 233-243
Gensler, Harry J., “An Appeal for Consistency.”
Philosophical Studies, No. 49 (1986); 83-98.
Hartshone, Charles, “Concerning Abortion: An Attempt at a
Rational View.” Christian Century, January 21, 1981.
Thompson, Judith Jarvas, “A Defense of Abortion.”
Philosophy and Public Affairs, (Fall 1971); 47-66.
Tooley, Michael, “Abortion and Infanticide.”
Philosophy and Public Affairs, (Fall 1992); 37-65.
Warren, Mary Anne, “On the Moral and Legal Status of
Abortion.” The Monist 57 (January 1973); 43-61.
Rights, Justice, and the Bounds of Liberty, by Joel Feinberg,
Princeton University Press, Princeton, New Jersey, 1980.
Essay, “Is There a Right to be Born?”
1000-Word Philosophy: An Introductory Anthology
Philosophy, One Thousand Words at a Time
The Ethics of Abortion
Author: Nathan Nobis Category: Ethics Word Count: 1000
Abortion involves the killing of a fetus to end a pregnancy. These fetuses are human , biologically. 1 It seems that fetuses are beings , although completely dependent beings: what else would they be?
So, abortion involves the killing of a being that is biologically human . Killing human beings is often deeply wrong, so is abortion wrong? If so, when? And w hy ?
Here we will review some influential philosophical answers to these questions.
1. Human Organisms?
Fetuses are not just biologically alive. And they aren’t just biologically human either, like skin cells or organs. They are biologically human organisms .
Some thinkers argue that our being human organisms physically continuous with fetuses that were human organisms makes abortion wrong. 2 They seem to argue that since it is wrong to kill us now , i.e., we have properties that make it wrong to kill us now ( prima facie wrong to kill: wrong unless extreme circumstances justify the killing), it was wrong to kill us at any stage of our development, since we’ve been the same organism, the same being, throughout our existence.
While this argument is influential in some circles, it is nevertheless dubious. You are likely over three feet tall now, but weren’t always. You can reason morally, but couldn’t always. You have the right to make autonomous decisions about your own life, but didn’t always. Many examples show that just because we have some characteristic, including a moral right now, that doesn’t entail that we (or our bodies?) have always had that characteristic or right. This argument’s advocates need to plausibly explain why that’d be different with, say, the right to life. 3
2. (Human) Persons?
We, readers of this essay, are human organisms (unless there are any divine or extraterrestrial readers!), and it is prima facie wrong to kill us. Is the reason why it wrong to kill us because we are human organisms?
Perhaps not. It is wrong to kill us, arguably, because killing us prevents us from experiencing the goods of our future: accomplishments, relationships, enjoying our lives and so on, which is distinct from being a human organism.
Many philosophers describe these capacities needed for experiencing our lives, present and future, in terms of us being persons . 4 A theory present from at least the time of John Locke can be expressed roughly as: persons are beings with personalities : persons are conscious beings with thoughts, feelings, memories, anticipations and other psychological states. (When some people insist that fetuses aren’t human beings , they might be claiming that they are not human persons ). If we die or even become permanently comatose, we cease to be persons, since we permanently lose consciousness.
This theory of personhood has explanatory power: it helps us understand why we are persons and how we (or our bodies) can cease to be persons. It justifies a growing belief that some non-human animals are (non-human) persons. It explains why rational space aliens, if there are any, would be (non-human) persons. It explains why divine or spiritual beings are or would be (non-human) persons.
On this theory of personhood, beginning fetuses are not persons. This is because their brains and nervous systems aren’t sufficiently developed and complexly interconnected enough for consciousness and personhood. The medical and scientific research reports that this developmental stage isn’t reached until after the first trimester, or, more likely, until mid-pregnancy. 5 Nearly all abortions occur very early in pregnancy, killing fetuses that are not yet conscious, and so are not yet persons on this theory of personhood.
Any later abortions, affecting conscious and feeling fetuses who are persons or close to it, however, would likely be wrong on this theory unless done for a justifying medical reason.
3. Potential Personhood?
But just because something (or someone) is not a person, that doesn’t obviously mean that it is not wrong to kill it.
If fetuses aren’t persons, they are still potential persons. (And merely potential persons are never actual persons ). Does that potential give fetuses, say, the right to life or otherwise make it wrong to kill them?
If potential things have the rights of actual things , then potential adults, spouses, criminals, doctors, and judges would have the rights of actual ones. Since they don’t, it is plausible that potential personhood doesn’t yield the rights of actual personhood . At least, we are due an explanation of why it would, since potentiality never does that for anything else.
4. Valuable Futures?
Abortion might seem to prevent a fetus from experiencing its valuable future, just like killing us does, even if it is not yet a person. 6 But our futures might be valuable, in part, because we can, presently, look forward to them. Fetuses have no awareness of their futures whatsoever, and this is one important difference between their futures and our futures.
Further, an egg-and-a-sperm-that-would-fertilize-it arguably has a future akin to that of a fetus. Contraception (even by abstinence!) keeps this future from materializing. 8 But contraception and abstinence aren’t wrong. Thus, it is not wrong to perform some action that prevents such a future from materializing.
5. The Right to Life?
Finally, suppose all fetuses are indeed persons with the right to life. Does that make abortion wrong?
Not necessarily, Judith Thomson famously argued in her 1971 “A Defense of Abortion.” 9 If I must use your kidney to stay alive, do I have a right to your kidney? No, and you don’t violate my rights if you don’t let me use it and I die. This shows that the right to life is not a right to the bodies of others, even if those bodies are necessary for our lives to continue .
Fetuses, then, might not have a right to the pregnant woman’s body and so she doesn’t violate their rights by not allowing a fetus to use it. If so, abortion wouldn’t violate any rights of fetuses and so it might be permissible.
The philosophical issue of the moral status of abortion is complex: these are just a few philosophical arguments on the issue. Each argument, and many others, are worthy of further discussion and reasoned debate. 10
1 Unless we are doing veterinary ethics and are thinking about aborting feline or canine or other non-human fetuses.
2 This argument is developed in Beckwith (2007), and in George and Tollefsen (2008). This presentation here is based on Beckwith’s emphasis that fetuses and the adults they often later become are the “same being.” These arguments, however, can be interpreted in a more complex way, in which we understand them as arguing that having rights, or the properties that result in having rights, is essential to living human organisms, and that we are, in essence, living human organisms (and not, in essence, say, either minds or souls), and so we have rights whenever living human organisms exist (and so since a fetus and the later adult are the “same being” they have rights whenever they exist). This more sophisticated argument is not discussed here.
3 This response is developed in Boonin (2003) and in Nobis (2011)
4 This influential theory of personhood is developed in Warren (1973).
5 Lee, Susan J., et al. (2005) and Benatar and Benatar (2001)
6 This argument is developed in Marquis (1989).
7 For development of these arguments, see McMahan (2002).
8 For development of these arguments, see Norcross (1990).
9 Thomson (1971)
10 While abortion is, of course, a controversial issue, it is worth noting that 82% of professional philosophers surveyed “accept or lean towards” believing that first-trimester abortions are generally permissible, whereas 13% “accept or lean towards” believing they are impermissible. For philosophers who specialize in applied ethics, those numbers shift to 86% and 11%. See the 2020 PhilPapers Survey.
A question is what explains these results: do philosophers tend to have these views about abortion because they better understand the issues and have trained abilities to rigorously evaluate ethical arguments? Or are these results better explained by something else?
Beckwith, Francis J. Defending Life: A Moral and Legal Case against Abortion Choice . Cambridge University Press, 2007
Benatar, David, and Michael Benatar. “A Pain in the Fetus: Toward Ending Confusion about Fetal Pain.” Bioethics 15 (2001): 57-76
Boonin, David. A Defense of Abortion . Cambridge University Press, 2003
George, Robert P. and Christopher Tollefsen. Embryo: A Defense of Human Life. Doubleday, 2008
Lee, Susan J., et al. “Fetal Pain: A Systematic Multidisciplinary Review of the Evidence.” Jama 294.8 (2005): 947-954
Marquis, Don. “Why Abortion is Immoral.” The Journal of Philosophy 86.4 (1989): 183-202
McMahan, Jeff. The Ethics of Killing: Problems at the Margins of Life . Oxford University Press, 2002
Nobis, Nathan. “Abortion, Metaphysics and Morality: A Review of Francis Beckwith’s Defending Life: A Moral and Legal Case Against Abortion Choice.” Journal of Medicine and Philosophy 36.3 (2011): 261-273
Norcross, Alastair. “Killing, Abortion, and Contraception: A Reply to Marquis.” The Journal of Philosophy (1990): 268-277
Philpapers. (N.d.). Survey results: Philosophical questions.
Thomson, Judith Jarvis. “A Defense of Abortion.” Philosophy & Public Affairs (1971): 47-66
Warren, Mary Anne. “On the Moral and Legal Status of Abortion.” The Monist (1973): 43-61
Theories of Moral Considerability: Who and What Matters Morally? by Jonathan Spelman
The Doctrine of Double Effect: Do Intentions Matter to Ethics? by Gabriel Andrade
Personal Identity by Chad Vance
Psychological Approaches to Personal Identity: Do Memories and Consciousness Make Us Who We Are? by Kristin Seemuth Whaley
Animalism and Personal Identity: Are We Animals? by Kristin Seemuth Whaley
Is Death Bad? Epicurus and Lucretius on the Fear of Death by Frederik Kaufman
The Badness of Death by Duncan Purves
The Non-Identity Problem by Duncan Purves
Applied Ethics by Chelsea Haramia
Principlism in Biomedical Ethics: Respect for Autonomy, Non-Maleficence, Beneficence, and Justice by G. M. Trujillo, Jr.
What Is Misogyny? by Odelia Zuckerman and Clair Morrissey
Audio and Video
About the author.
Nathan Nobis is a Professor of Philosophy at Morehouse College, Atlanta, GA. He is the author of Animals & Ethics 101 , co-author of Thinking Critically About Abortion , a co-author of Chimpanzee Rights , and author or co-author of many other articles, chapters, and reviews in philosophy and ethics. www.NathanNobis.com
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