While abortion remains legal in the United States, there are efforts aimed at curtailing and termination abortion rights. While there are some anti-abortion activists who want to strike down abortion rights in one strike, the canny and pragmatic have accepted that they are more likely to achieve their goal using the thousand cuts method. This is a sensible approach: an effort to simply make abortion illegal would meet massive opposition and mobilize the pro-choice forces—it is analogous to an open declaration of war. Various small attempts at limiting abortion rights attract far less attention; they are analogous to minor incidents and attacks that fall far short of full scale war.
One relatively small-scale incursion is focused on narrowing the time scale in which abortion is legal—the idea is to push the time limit ever closer to conception. One stock moral argument used to do this is to contend that at a specific time, the fetus has qualities that grant it a moral status that would make killing it immoral. While some contend that this moment is conception, this position runs into the obvious problem that a single cell seems to lack the qualities that confer meaningful moral status. It also runs into the pragmatic problem that most voters seem to agree with this view and hence it is weak in terms of its persuasive power.
From both a moral and pragmatic standpoint, it is more appealing to make the argument when the fetus has empirically testable qualities that are intuitively relevant to its moral status. These include such qualities as being able to feel pain, able to respond to stimuli and presenting other evidence of the presence of mental activity. While political opponents of abortion rarely advance philosophically rigorous moral arguments, the case is easy enough to make. One obvious approach is the utilitarian one: that the fetus’ capacity to suffer means that it must be included in the moral calculation of abortion. The obvious problem with this approach is that the fetus has far less capacity than the mother and thus her interests would always seem to outweigh the fetus. This is, obviously enough, analogous to similar arguments about the treatment of animals: if the woman’s interests outweigh those of a fetus that is capable of feeling pain, then the same would hold true when the interest of a human conflicts with that of an animal. If the utilitarian approach is adopted to argue in defense of fetuses, then moral consistency would require that the same argument be applied to animals with qualities equal to or greater than a fetus. This would include many animals, such as chickens, cows and pigs. As such, if abortion should be restricted based on the qualities of the fetus, then the killing of animals should be likewise restricted. As such, if abortion should be legally restricted on these moral grounds, then it would seem that vegetarianism should likewise be imposed by law. While utilitarianism does have considerable appeal, there are alternatives.
The stock alternative to utilitarianism is deontology, the view that actions are inherently right or wrong regardless of the consequences. On this sort of view, killing a being that has the right sort of moral status would always be wrong and utilitarian calculations would be irrelevant. On this view, if the fetus has the right sort of status at a specific stage of development, then it would simply be wrong to kill the fetus. As with the utilitarian argument, this would seem to open the moral door for animals as well. For example, if the capacity to feel pain grants the fetus a moral status that forbids killing it and justifies legally restricting abortion, then animals that feel pain must also be granted the same status and legal protection. Put roughly, if abortion should be restricted because fetuses feel pain, then meat consumption should be restricted because animals feel pain. Any arguments advanced involving painless killing of animals to morally justify meat consumption would also justify painless abortion. Obviously enough, moral arguments that contend that it is acceptable to kill animals because they are inferior to us would also apply to developing fetuses.
It must be noted that the above discussion is focused on moral arguments involving the claim that the fetus has moral status because it has certain empirically testable qualities, such as the capacity to feel pain. As such, while arguments based on non-empirical qualities (such arguments based on the soul) can be advanced, they would take the discussion beyond the intended scope of this work. That said, there does seem to be an obvious way to restrict abortion based on empirical qualities while consistently avoiding extending the same legal protection to animals.
Fetuses are, obviously enough, human. Thus, it could be argued that this is the key moral difference between humans and animals that would justify restricting abortion while still allowing killing animals for consumption. One obvious problem with this approach is that if being human is what matters, then the appeal to the other qualities is irrelevant. As such, the argument should simply be that killing humans is wrong, fetuses are human, so killing them is wrong. While this is an option, it does abandon the appeal to qualities argument.
It could, of course, be argued that it is a combination of being human and the other relevant qualities—this would allow for abortion before the fetus has those qualities while also denying animals with those qualities an analogous moral status. The challenge is, of course, showing what it is about being human that makes the moral difference. While humans are humans, it can also be said that cows are cows and the question arises as to what it is about being human that makes the moral difference. If it is a quality, then that quality can be pointed to. If it is mere species membership, then that seems utterly arbitrary and unprincipled—mere speciesism. As such, it would seem that any arguments designed to restrict abortion based on the empirical qualities of fetuses would also apply to animals possessing equal or greater qualities. As such, if the legal restriction of abortion based on the appeal to qualities is justified, the same justification would require legal restrictions on killing animals. Roughly put, restricting abortion in a consistent way would effectively require legally mandating vegetarianism.
Phil Tanny says
What’s typically left out of the abortion equation is the pain that may be experienced by any person born in to a family that doesn’t want that person. What’s also left out is the pain that may be experienced by others, as the pain of rejection in one person radiates outwards in all directions. What’s also left out is the pain that will be experienced when a family collapses because it’s taken on more burden than it can carry.
But, none of this matters because the abortion debate has little to do with reason. That’s the real challenge you face here. You want the abortion debate to be about reason because then as a professional philosopher you would have an important role to play. But regrettably reason is not the operating system driving the abortion debate, so however skilled your reasoning may be, you’d still be on the wrong channel.
The Catholic Church understands what the right channel is. People want enemies to push against, and they want to play the role of hero. The Catholic Church has played a leading role in the abortion issue (and related topics) because instead of an idealistic vision of how people should be, it has a realistic understanding of how we actually are. What’s interesting is that this realistic understanding is presented in an idealistic format, proving yet again that human beings are complex creatures and that contradiction is an inherent part of our make up.
It’s not left out of the equation, many, many people talk about it and it’s a central part of their argument. I don’t really think it’s a valid logical or legal debate to have, though, at least not in terms of the law. It’s based entirely on speculation. Who is to say that a person who is unwanted won’t grow up to be a happy, well adjusted, productive member of society? There are many, many examples of people born to single, poor parents who had no options, who did just that.
Take, for example, someone like Oprah Winfrey – born in rural Mississippi to dirt-poor unmarried parents who split up after her birth – her bio says that she was raised for a time by her grandmother, then at the age of six, sent to live in an urban ghetto with her mother and two half brothers, then at 12 to live with her father – she is the picture of an unwanted child, and a perfect target for an abortion based on the anticipated painful life as judged by someone else. Do you think she has any regrets, or do you think the pain of her youth made her stronger, and contributed to her success?
Of course, the opposite is also true – many of these unwanted children suffer the pain of broken homes, foster homes, rejection – and become drug addicts or criminals.
Who can say what will happen to any specific individual? You and I can certainly speculate, and we can feel the pain of individuals and families and want to help them – and we can argue in favor of abortion on that basis – but as a matter of law it just cannot be codified.
The law has to be even handed, and deal with whatever facts it can. In his lengthy opinion for the majority decision in Roe v. Wade, Justice Blackmun addressed the role of the court and of the State in this decision – he acknowledged many, many legal precedents, treatments in other countries and throughout history, current and past medical opinion, and even the vast differences among the moral attitudes towards abortion. In the end a compromise was struck – allowing for the right to privacy and self determination of a woman to have an abortion without state interference up to the point of viability – avoiding coming down on either side of the debate of when life actually begins.
The courts can intervene and determine a point during gestation where the state has an obligation to protect the life of the unborn child, which they have. They cannot take steps in any direction to say whether or not that child will live a good life, a pain free life, a tortured life, or any kind of life. If abortion decisions are made on those bases, then who gets to decide what’s good or bad? That starts to get into the area of Eugenics, where we really dare not tread.
The constitution guarantees protection for life, liberty, and the pursuit of happiness – it does not, and cannot, guarantee or even attempt to provide a pain-free life for anyone. Once we come through that birth canal, we’re on our own.
All that said – abortion is legal in this country – women have free, unrestricted choice to have abortions at will, and further, the law provides for a safe, clean, ably staffed facility in which to have them. All they need to do is make their decision before the law says that the unborn child is viable. Statistically, as I’ve said in two other posts now, 90% of the abortions performed in this country don’t even come close to even the most restrictive proposals regarding that timeline. It’s now at 24 weeks, the most strident republicans want to make it 22 weeks (even though there have been successful live births at 21 weeks) but this 90% have the procedure before 13 weeks.
I do not believe that this law is going anywhere. It was a landmark Supreme Court decision and represents a very good compromise between two opposing factions. The only flaw I see in it is the government funding – which pro-choice people tend to see as absolutely necessary, and the removal of which will deny women the abortions they desperately want or need. I see it as fodder for hatred and political rancor – and I believe that if all government funding were to be removed it would increase the level of freedom and choice around this issue – and lead to a huge movement of private donations that would equal and exceed the level of funding now forced on the taxpayers. Oprah Winfrey herself could write the check and replace the $500 million the government now allocates to Planned Parenthood.
Phil Tanny says
DH, it is speculation what will happen to unwanted children individually, but not speculation regarding the impact on unwanted kids as a group.
Say there are ten unwanted kids. Nine of the kids manage to overcome the unwanted burden. One becomes a criminal, and thus ruins the lives of hundreds of people by selling them drugs, raping them, beating them up, stealing their identity etc.
So, the equation in this case isn’t nine wins and one loss. It’s nine wins and a hundred losses.
I understand it – but it is still an emotional, speculative appeal. Perhaps one of the victims of the one criminal out of ten would have turned out to be a mass murderer – thus the result is the saving of hundreds of innocent lives.
Plenty of wanted children who grow up in stable households turn out to be the same kind of criminal, also.
And if you are going to go down that speculative road, you’d have to make some kind of call on how many aborted children would have grown up to be heroes.
It’s definitely part of the argument, as I said in my first answer – plenty of people appeal to this situation in the pro-choice side of the debate – but it is all just guessing.
While I would maintain that the argument is not “valid” in a logical sense, I would agree that it is definitely effective. It has been shown in many peer-reviewed psychological tests that human beings respond far more deeply to emotional appeals than they do to statistical facts. The lack of any verifiable statistics in your approach is likely to have little to no effect on its impact.
I also think that this whole argument is a waste of energy in large part. I don’t think legal abortion is going anywhere; Roe v. Wade is a strong law with a lot of support, and any real attempts at repealing it would be political suicide for anyone taking up that cause.
As it is written, there is an acceptable window of opportunity for women to have unrestricted abortions by their choice alone – and as I have pointed out in other posts, 90% of abortions in this country occur before even half of that allotted time has elapsed. The fact is that only 1.2% of abortions happen after that window.
Abortion is not illegal after 24 weeks, the law just says that the state “has an interest in the life of the unborn”.. The small number abortions that take place after 24 weeks just have to have a doctor prove that there is a medical necessity to protect the life of the mother.
The argument is kept alive by exaggeration, speculation, and emotional appeal. To shorten this window of opportunity from 24 weeks to 22 weeks or even 16 weeks would have absolutely zero effect on what actually happens in this country, based on the statistical evidence provided by both the Guttmacher Institute (AGI) and the Center for Disease Control (CDC). Again – 89-92% of abortions take place in the first 13 weeks, 7.2 between weeks 13-21, and 1.3 after week 21.
Yet any attempts to move this window are met with wild protests – “THIS IS THE MOST RESTRICTIVE BAN EVER!” Arkansas, Iowa, and other states have tried to pass laws that use the detection of a fetal heartbeat as the measure, but all the headlines declare that abortion is banned at this time, which is not true – it’s the point at which the life of the unborn must be weighed against the health of the mother. In any case, it is just another test of the constitutionality of the law against Roe v. Wade, and the sovereignty of individual states against federal law – and so far, none of these laws has passed – one having been struck down by the Supreme Court. It’s part of the daily business of the United States. But the reaction of the public is uninformed and visceral.
Phil Tanny says
You’re doing philosophy, I’m doing common sense. 🙂 Having kids born in to families that don’t want them just ain’t a good plan, no matter what kind of logic dancing we might want to do around that real world fact.
”While abortion remains legal in the United States, there are efforts aimed at curtailing and termination abortion rights…One relatively small-scale incursion is focused on narrowing the time scale in which abortion is legal—the idea is to push the time limit ever closer to conception. ”.
I do not interpret the time-limit argument as an incursion or an effort to curtail or terminate abortion rights at all. This is merely a matter of law. The time limit is stated in Roe v Wade and is discussed in great detail in the majority opinion of the court delivered by Justice Harry Blackmun. In this opinion, he is very clear that the time limit for abortion is based on the health of the mother and the viability of the fetus, and that the opinion of the court is based on the study of the history of the practice in various countries and the opinion of the medical community.
Specifically, in the section of the opinion dealing with the justification of the State’s interest in protecting prenatal life, Blackmun states,
”Some of the argument for this justification rests on the theory that a new human life is present from the moment of conception. The State’s interest and general obligation to protect life then extends, it is argued, to prenatal life. Only when the life of the pregnant mother herself is at stake, balanced against the life she carries within her, should the interest of the embryo or fetus not prevail. Logically, of course, a legitimate state interest in this area need not stand or fall on acceptance of the belief that life begins at conception or at some other point prior to live birth. In assessing the State’s interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone.”
So absent any threat to the mother’s life or health, the State is protecting “at least potential life”, skirting the argument about when life actually begins and addressing the issue of viability. In his opinion, he states,
”As we have noted, the common law found greater significance in quickening. “
(he is referring to a definition of “quickening” as the first recognizable movement of the fetus in utero – which, according to previous common law, was at approximately 16 weeks). He continues with a modern interpretation of viability:
”Physician and their scientific colleagues have regarded that event with less interest and have tended to focus either upon conception, upon live birth, or upon the interim point at which the fetus becomes “viable,” that is, potentially able to live outside the mother’s womb, albeit with artificial aid. Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks.”
The time limit in Roe v Wade is not arbitrary, it is not political, it is not regarded as fact – it is a compromise, an attempt at finding an agreeable point somewhere between “Conception” and “Live Birth” when the State will defer its interest in a woman’s choice to have an abortion.
In 1973, that point was fixed at 28 weeks, but it was acknowledged that it could be as early as 24 weeks. Since that time, there have been a number of cases where viable infants have been born as early as 21 weeks and survived. (In one particular case, Amilla Taylor was born in 2006 at the gestational age of 21 weeks. Since the legal cut-off for resuscitation of a premature child is 23 weeks, Amilla’s parents lied to the doctors about the age of the child in order to save her.
There are dozens, perhaps even hundreds, of stories of babies being born well before the 28 weeks of Roe, or the 24 weeks “acknowledgement” of Blackmun, so in consideration of the spirit of that law – that it is based on “viability”, it is a question of law, practicality, and the acknowledgement of advances in medical science – not morality – to address this “narrowing of the time scale”.
In an earlier post, I cited the statistic that 89-92% of all abortions occur before the 13th week of pregnancy, and that 7-8% occur between weeks 13 – 22. The “narrowing of the time scale” applies to very few instances of abortion – and of that 1.2% that occur after the 22nd week, there is no information as to what the reasons are – it’s quite possible that they were performed because the mother’s life was at risk and it was a medical decision – so for that matter they could have legally been performed at week 30 anyway.
The point is that what you describe as part of a strategy of “a thousand cuts to restrict abortion rights” is really two things – (A) an interpretation of a law that was based on 1973 medical information, updated in consideration of the context of current knowledge, and (B) an attempt to codify what a vast majority of people do anyway.
On the other hand, you are seeking some consistency. With regard to your argument about animals,
”… if abortion should be restricted based on the qualities of the fetus, then the killing of animals should be likewise restricted.
Well, it is. Food producers are regulated by the Humane Slaughter Act, the ASPCA has prosecuted thousands of cases of cruelty to animals – hunting is regulated, and so forth. You might argue that the law is uneven here, and more should be done and I might agree with you – but I really see no moral equivalence, nor is it something that has ever been considered by the Supreme Court.
But if you are looking for consistency, perhaps you should focus your attention on the way we treat the exact same issue – that of the life of an unborn child – under different circumstances?
I am referring to the laws of most states in the US who regard “Fetal Homicide” as a crime, and one that, by statute, can occur at any stage of gestational development. In other words, if someone kills a woman who is only a few weeks pregnant, that person can be charged with a double murder. What, exactly, are we saying here? Clearly the law in one regard is defining the killing of a child as murder regardless of what is said in Roe v. Wade, except that in the case of abortion, it’s not really a life anyway? Which is it? A life, for which its termination is regarded as murder? Or a pile of cells, a mere tumor inside a woman’s body that does not have the rights and privileges of a human being, and does not therefore enjoy the protection of the law?
It seems to me that for the sake of consistency, “viability” should be the same in either case, and “Fetal Homicide” should bear the same viability test as abortion – and if the crime is committed before the legal time frame, whether at 20 weeks or 24, the death of the fetus should only be regarded as a violation of the civil rights of the mother. Or some other condition – but to make a distinction like this is like saying, “It’s OK for you to kill your own child, but not for someone else”, or, “If you terminate it, it’s a tumor – but if someone else does, it’s a human being”.
There must be a Zeno’s paradox for abortion: if it wrong to kill the baby 1 minute after birth, then it is wrong to kill the baby 1 minute before birth, and so on…
Cutting up a fully-formed baby inside the mother is legal, but delivering it and then cutting it up is illegal.
Hence After-Birth Abortion. Article in the BMJ Journel of Medical Ethics here: http://jme.bmj.com/content/39/5/261.long
People who rely on utilitarian arguments for abortion may have trouble arguing against it. Or perhaps they accept it. I believe the baby starts to develop self consciousness at 15-24 months, so that would be a reasonable cut-off.
Michael LaBossiere says
True; but eventually a moral line could be reached at which the killing would be acceptable.
To use an analogy, if it is wrong to kill an enemy soldier 1 minute after the war ends, then it is wrong to kill them a minute before it ends (assuming the end is known). But, if this holds all the way, then killing in war would always be wrong. Which is, of course, something some believe.