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Exceptions, Rules, and Abortion

June 10th, 2009 · 12 Comments

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.

Hilzoy counters:

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.

Tags: Moral Philosophy



12 responses so far ↓

  • 1 hilzoy // Jun 10, 2009 at 1:13 pm

    For what it’s worth, I agree with you on the relevance of circumstances of conception, health of the fetus, etc. I just meant: the point of bringing them up is to say that they’re relevant, which makes Ross’s subsequent gloss incomprehensible.

    Insofar as I can say what I’d think in the alternate universe in which I thought fertilized eggs were persons, I think I’d find Thompson’s example convincing only for early abortions, in which you are doing something much more like unplugging the violinist than like killing him. I don’t think I’d find the “but you voluntarily had sex, so you should live with the consequences” argument convincing when someone used contraception, so exceptions to that rule wouldn’t matter much to me.

    Nice piece, though. 😉

  • 2 hilzoy // Jun 10, 2009 at 1:17 pm

    Though, on reflection, what I actually wrote was wrong (about my views.) I was thinking of later-term abortions (because Ross was writing about them), in which I don’t think Thompson’s argument works as well. I thought out, and actually wrote, something about early abortions done by vacuum aspiration and Thompson’s argument, and when I deleted it (on grounds of excessive length), I think I garbled what remained.

  • 3 SeattleKen // Jun 10, 2009 at 1:38 pm

    I seldom comment on blogs, but I’ve been reading you for awhile and I think your work is terrific.

    I’m not a student of philosophy, much less a professional, but it seems to me there’s a bit of moral philosophy that gets left out of the debate over abortion. It’s the idea that killing (or letting die) is not just a (potential) moral crime against the to-be-dead person, but also a (potential) moral crime against everyone who values the to-be-dead person’s life. Murder is, you might say, the worst possible kind of theft. To borrow your example, suppose the two people drowning in the lake are both healthy 40 year old men, but one is homeless and friendless, while the other is a married father of three. This is, I think, still not a hard call. And it’s still not a hard call, even if there’s a sense in which the first man values his life just as much as the second man.

    Apply this thought to abortion. If, like Ross, you’re looking for a bright line test for whether a fetus “has a claim to life or it doesn’t,” the fact that the fetus has no friends or loved ones is going to be irrelevant. But if, as you say, “it matters how much people are helped or harmed,” then it seems relevant that no (or few… potential grandparents, perhaps) others are harmed in this way by the abortion. In other words, against the claim that abortion is murder like any other, this is a way in which the killing of (say) an 8 year old child with friends and family is far worse. To be clear, I’m not saying that this “killing as theft” line of reasoning is enough *by itself* to justify abortion, just as realizing that it’s better to save the father of three than the homeless man doesn’t imply that it’s OK to shoot the homeless man in the head. But it’s part of the weight on the moral scales, so to speak.

    This is a bit muddled, I’m afraid, but I hope you see what I’m getting at. I never see this idea explored in abortion debates, and I’m interested to know why you think that is. Is it because this line of reasoning is unpersuasive? Counter-productive? Horribly wrong? Your thoughts appreciated. Cheers.

  • 4 Kevin B. O'Reilly // Jun 10, 2009 at 1:58 pm

    Here’s my problem. I’m so enjoying your recent recent burst of blogging, but simultaneously feeling guilty about your unemployed status that’s enabled it. I mean, shouldn’t I feel bad to be glad that you’re unemployed?

  • 5 Julian Sanchez // Jun 10, 2009 at 2:13 pm

    I don’t want to say that sort of consideration is always entirely irrelevant, but I think it belongs in the category of “things for the prospective mother to consider” rather than at the policy level.

    First, just practically speaking, if you thought it was proper to restrict third-term abortions, you could have a neutral rule that specifies the medical conditions under which they’re permissible–and that would already probably be pretty messy. Trying to sort out this other stuff at the policy level would be an obvious nightmare.

    At the level of principle, because I’m not just a pure utilitarian, I’m much more comfortable weighing these different questions of burden and consequence in the face of conflicting prima facie rights. That is, if you believe that the third-term fetus is a person, or something in the ballpark of a person, then it has a prima facie right not to be harmed, and of course, the mother has a prima facie right to control her body, and you get into this sort of delicate balancing because it’s not clear which takes priority. I’m *much* less comfortable with any notion that extended family members have some kind of right—let alone a property right—in the fetus.

    Still less do I think it’s a good idea to slide from “balancing” in the context of conflicting rights to just throwing it open to consider the potential emotional effect of people’s actions on everyone in the world—which amounts to torpedoing “rights” talk in favor of straight utilitarianism. Think of it by analogy to a court: If a statute is ambiguous about what rights people have, a judge might reasonably break the tie by considering whether one interpretation of the statute would clearly have much worse consequences—but that doesn’t mean judges should just toss their law books and decide every case by ordering whatever outcome he predicts will have the best consequences. In particular, in determining whether abortion is wrong, I certainly don’t think it’s appropriate to weigh in the mental discomfort felt by people who are unhappy that abortions ever happen on the grounds that they believe it’s wrong, which seems like a vicious circle.

    That’s all a very quick sketch, but those are some of the reasons I think it’s generally better not to introduce those sorts of considerations.

  • 6 Conor Friedersdorf // Jun 10, 2009 at 2:15 pm

    “Ross’ assertion that the fetus simply ‘has a claim to life or it doesn’t’ just seems frankly crazy.”

    But what Ross actually argues is a lot more subtle than that — after all, surely the caveats he employs mean something. Here is his formulation: “As a matter of moral philosophy, this makes a certain sense. Either a fetus has a claim to life or it doesn’t.”

    “It makes a certain sense” sure sounds like it implies that in certain ways it doesn’t make sense. And it only makes this “certain sense” as a “matter of moral philosophy,” as opposed to a matter of, well, something else, wherein it doesn’t make sense.

    I’m pretty sure the following is what Ross is intending to argue:

    The argument for unregulated abortions rests on the idea that because there are these really heart-rending, morally fraught cases involving rape, incest, the health of the mother, or the health of the fetus, there shouldn’t be any restrictions on ending pregnancies. I can see how people would wrongly reach that conclusion. They erroneously figure that if their moral intuition tells them it’s okay to abort in the case of rape, for example, the fetus must not have an absolute right to life — therefore, they reason, the deciding factor ought to be the woman’s judgment, not some outcome determined by the rights of the fetus, which logically wouldn’t be affected by something like rape.

    If we were engaged in moral philosophy, and our project required us to reach an internally consistent answer, we might be forced to conclude either that the fetus has a right to life, therefore we must force pregnant rape victims to carry them to term… or else it is obviously wrong to force a rape victim to carry a fetus to term, therefore a fetus must not ever have a right to life since it doesn’t in that circumstance.

    But the law demands no such consistency! We can adopt a compromise that makes practical rather than principled sense!!

  • 7 Julian Sanchez // Jun 10, 2009 at 2:26 pm

    Right, I understand Ross’ argument. I’m disputing the premise that on most reasonable moral views, you’re forced to the “consistent” conclusion that either the fetus has no right to life at all (though this is actually fairly close to my view), or it has an absolute indefeasible right regardless of any other factors. That claim does not make sense “as a matter of moral philosophy” unless you restrict the meaning of “moral philosophy” to a handful of extraordinarily strict deontological theories (think of Kant insisting on truthfulness to the murderer at the door) that almost nobody holds. Instead, if you actually look at the “moral philosophy classrooms” Ross mentions, you find people talking quite alot about how to resolve conflicts between competing facially valid moral claims.

  • 8 Doug // Jun 10, 2009 at 2:30 pm

    If mothers aren’t permitted to kill their 5-year-old children are uncles? Please answer philosophically.

  • 9 sidereal // Jun 10, 2009 at 3:07 pm

    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.

    Mmm. . indeed. It is a critical point. And like all points, it is best made. . . with charts!

  • 10 Ross, Roe, Nash and Young « Around The Sphere // Jun 10, 2009 at 5:06 pm

    […] Julian Sanchez on Ross and Hilzoy […]

  • 11 southpaw // Jun 10, 2009 at 10:28 pm

    Thank you, Julian, for bringing up bodily self-control and for inspiring this comment thread, which is fantastic.

    I’ll just note that the debate we’re having, practically, need not reach the ultimate question of right or wrong to have an abortion. Only the women considering whether to have an abortion need to reach an answer to that. As outside observers, we can only be properly concerned with whether it’s right or wrong to exercise the just powers of the state to coerce the outcome of an individual’s decision. We might think meanly of a person who won’t run into a burning building or donate a matched kidney to save a child, but I think we probably all recoil at the idea of anyone being forced into a fire or onto an operating table at the point of a policeman’s gun.

  • 12 thing // Jun 11, 2009 at 3:32 am

    I’d be a lot less squeamish about all abortions if doctors would just anesthetize the foetus. Politically I can understand why the pro-choice side doesn’t want folks thinking about how the foetus feels, but I think this is a mistake – a painless death for a completely oblivious entity with no identity and no sense of self and other is just hard to paint as a gruesome. There’s a very loud amusement park just outside my window.

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