I’m generally a lot closer to Hilzoy than Ross Douthat on abortion questions—and in particular, agree with a fair amount of her dissection of his recent column on the subject. But on one point, I think they both get it wrong. Ross wrote:
The argument for unregulated abortion rests on the idea that where there are exceptions, there cannot be a rule. Because rape and incest can lead to pregnancy, because abortion can save women’s lives, because babies can be born into suffering and certain death, there should be no restrictions on abortion whatsoever.
As a matter of moral philosophy, this makes a certain sense. Either a fetus has a claim to life or it doesn’t. The circumstances of its conception and the state of its health shouldn’t enter into the equation.
The whole point of bringing up cases of rape and incest is to argue that the circumstances of a fetus’ conception are relevant to the question whether abortion should be legal. If we were convinced that a fetus was a full person, they wouldn’t be: we do not think it’s OK for a mother to kill her five year old child on the grounds that it is the product of rape or incest. Likewise, the point of bringing up the fact that “babies can be born into suffering and certain death” is to say that the state of the fetus’ health is relevant, not that it isn’t.
First, I think Ross is just empirically wrong about what “the argument for unregulated abortion” rests on. We see polls all the time where people express the view that abortion should be illegal except in cases of rape, incest, and to protect the life or health of the mother. And indeed, some states place just such limits on third-term abortions, which seems like a pretty straightforward problem for the claim that “where there are exceptions, there cannot be a rule”—a claim I’ve never heard anyone actually make. The closest thing I’ve seen is an argument—a better one, I think—that begins with hard cases where most people think an abortion might be justifiable, and then argues that because the issues involved are inevitably complex and contentious, the presumption should be to let women decide rather than getting the state involved in making case-by-case determinations. Neither, however, do I recall seeing these “hard case” exceptions used as part of the two-stage argument Hilzoy suggests.
Now, as a sort of intuition pump, Hilzoy’s argument is fine, I suppose. But unlike both Hilzoy and Ross, I can think of ample reason that all of these issues would indeed be relevant. As long time readers know, I just think that fetuses aren’t persons at all, so for the purposes of my own view, these nicer distinctions are moot. But there’s a perfectly coherent view on which, sometime after 20 weeks of gestation, when some kind of recognizable nervous system starts forming, the fetus begins at least approaching personhood. Past that point, if you held this view, the permissibility of abortion would turn on how you resolved the conflict between the rights or interests of mother and fetus. And all of the factors Ross mentions would be—I think quite obviously—relevant to this determination.
So just stipulate you think the fetus is something close to a full person. As Judith Jarvis Thompson famously argued, we don’t actually normally contend that people are obliged to let their bodies be used as life support systems to save the lives of other people. We don’t even make the relatively trivial burden of blood donation compulsory, so great is our respect for the right of bodily self-control. Now, someone might think abortion is different because—unlike Thompson’s “famous violinist”—it doesn’t just happen to be hooked up to a particular person and in need of life support, but is in that dependent position as a foreseeable consequence of the mother’s actions, which means she’s got a special obligation to provide that life support. If you find that plausible, then it surely matters whether the antecedent condition in this little syllogism is actually true. In cases of rape or incest—which in practice just means “rape by a family member”—that’s not the case.
It also seems like it’s got to be relevant how much of a burden on the mother we expect it to be to carry the child to term. Most of us think that if you pass someone drowning in the lake, and you need only extend a branch overhead to save them, you’re very much obligated to stop and help—even if it makes you late for your meeting. Most of us also think an ordinary person is not obligated to, say, risk his life by rushing into a burning building to save another person. We might think someone who does this is a hero—but that word signifies precisely that the action is “beyond the call of duty.” This is not, I think, a terribly difficult or abstruse moral principle: Or obligations to others often depend at least in part in the costs they impose on us. How high a cost one thinks it’s obligatory to assume will turn on an array of one’s other beliefs—including how close to personhood one places the fetus. But in the limiting case—where both mother and fetus are almost certain to die if the pregnancy is brought to term—I don’t think there’s any sane way to deny the permissibility of abortion, whatever your other views.
Finally, it just has to matter whether the fetus has any reasonable prospect of survival and a decent quality of life if brought to term. I realize there are people who don’t thnk euthanasia is ever permissible, but even they, I think, have to recognize that this sort of thing matters. Suppose someone determines that an unconscious relative should be removed from life support. Even if you think this is always the wrong choice, I don’t think anyone would deny that it makes some difference to the wrongness whether the prognosis is:
- the patient will linger for some months in agony, never truly regaining consciousness, then die painfully, or
- the patient will be unconscious for a week, then make a full recovery
Or, to return to people drowning in a lake, given a choice between saving a 15-year-old and a 90-year-old with a terminal illness, I don’t think it’s a hard call who you save. We talk about “taking” and “saving” lives, but ultimately nobody’s life is ever really “saved”—at best it’s leased back from oblivion for a few years. What we actually “take” and “save” are not “lives” but spans of time at some expected quality of life. There are very strong reasons for treating all killings of adult persons equally as a matter of law rather than formally indexing penalties to the victim’s expected lifespan. But it’s inconceivable that, in deciding whether the interests of the fetus outweigh the mother’s default right of bodily control, you wouldn’t consider whether those “interests” consist of a potentially full life, or a few scant months of misery.
Now, none of these considerations in themselves tell you where to strike the balance. But Ross’ assertion that the fetus simply “has a claim to life or it doesn’t” just seems frankly crazy. Because in basically every other context, we recognize that many different people will have some moral claim of some kind, with many factors determining the strength of the claim and whether it determines action. Any time there are limited resources—food or medicine, say—everyone who might be helped by those resources has some moral claim to them. But when those claims conflict—perhaps because we don’t have enough to help everyone—we try to figure out the relative strength of those claims: What’s the probability that each patient will actually be cured by the medicine? If we use a scarce dose of the medicine on this patient, will he soon die from another ailment anyway? Can we save several other patients with the same amount of medicine it would take to cure this one? I don’t invoke this example in some sneaky effort to elide the old killing/letting-die distinction, whch I think is important in most contexts, but just to note that we generally just regard it as obvious that “having a moral claim” is not some kind of binary either-or property. You don’t have to be a utilitarian, or even a consequentialist to think this—you just have to think that moral strictures have some kind of point, and are not just arbitrary rules meant to test our obedience. As soon as we acknowledge that we’re obligated to help or refrain from harm because it matters how much people are helped or harmed, then these things do have to weigh in our moral decisions in some way.