Last year, my home state of Ohio passed a bill making it illegal to perform an abortion after a fetal heartbeat is detected. Another five states passed similar bills that year (2019), ten more states introduced them, and more are likely to follow. Most of these laws have been temporarily blocked by federal courts, but anti-abortion lawmakers say they welcome litigation challenging the constitutionality of the law, as it may provide an opportunity for the Supreme Court to overturn the Court’s 1973 decision in Roe v Wade.
Abortion has been legal in the United States all of my adult life. During my college years in the 1980s, the rise of the conservative Christian organization known as the Moral Majority kept the issue in the headlines. There was a women’s clinic in my neighborhood just off campus, and it was staked out once or twice a week by protesters standing in the way of those entering the clinic, shouting at them and trying to give them printed material describing what they were doing to an unborn child.
At the time, a powerful argument for keeping abortion legal was that even if it’s wrong, the consequences of criminalizing it are worse. Women die when they are determined to obtain an abortion and the only methods available are illegal and thus unregulated and dangerous. Yet, for the ‘pro-life’ movement, laws against abortion are no more onerous than laws against infanticide or any other kind of homicide. Some abortion opponents support financial and practical help for women who are unprepared to be mothers, or assistance with making an adoption plan, or the provision of low-cost contraception to avoid unwanted pregnancies in the first place. But for those who believe protecting the unborn is of paramount importance, sex sometimes has consequences that may not be avoided. Those personal, physical consequences, should they eventuate, are borne only by women.
As of November 2020, abortion is still legal in all US states, but individual states can pass laws regulating or limiting it. If Roe v Wade were to be overturned, states would be empowered to make it a criminal offense to terminate a pregnancy, and some states have ‘trigger laws’ that would come into effect immediately upon such a decision by the Supreme Court. Meanwhile, it’s increasingly difficult to obtain an abortion as states enact statutory obstacles ranging from developmental thresholds to parental consent for minors, mandatory ultrasound, counseling designed to discourage going ahead with the procedure, and a waiting period. In many states there is a shortage of medical practitioners who are both trained and willing to terminate a pregnancy and women must travel considerable distances. The cost can also be a difficulty, especially where public funding has been stripped. Even if abortion can’t be outlawed outright, access to it is being eroded.
There is ample evidence from countries around the globe, including the United States, as to what happens when restrictive abortion laws are passed. The harms to women include not only unsafe abortion attempts but also prosecution and jail – consequences that obviously affect not only the accused but their families and others. However, I think it’s a mistake to stop there. Because the push to criminalize abortion relies on the claim that it’s morally wrong, I’d like to look at that claim and at what is implied by it. Although laws such as Ohio’s apply to third parties performing abortions, I shall focus only on the claim as it applies to the woman herself, since she is, after all, the person with an interest in whether the pregnancy continues, and the person responsible for the decision.
‘Abortion is wrong’ is different from other claims of the same form (for example claims that murder, torture, or cruelty to animals is wrong) in that it asserts moral obligations only for some people: those who are capable of being pregnant. But ethical precepts intended to guide behavior must apply to everyone. This is a feature not only of rule-driven ethical codes but also those based on consequences and those in which virtue of character is central. A moral obligation that necessarily applies only to half of the population is deeply problematic on any normative theory.
I shall argue that it is misplaced to fix on personhood as the source of a duty to avoid killing, and that because pregnancy is unlike any other relation between two human beings, arguments against abortion cannot come under the same rubric as arguments against infanticide, euthanasia, or even scenarios like Judith Jarvis Thomson’s hypothetical donor/host, briefly mentioned below.
Personhood
A fetus that has the genetic material contributed by a human egg and a human sperm is undeniably a human: a member of the species Homo sapiens in a stage of development between conception and birth. But whether a fetus is a person is a different question, and one on which some arguments for the moral and legal permissibility of abortion rely.
‘Human’ and ‘person’ are regularly conflated in discussions of abortion. After all, the law defines a ‘natural person’ as a human being (as distinguished from a ‘legal person’ such as a company or other entity to which we attribute legal responsibility or entitlements), and the concept of human rights applies to all human beings. There are few contexts in which being a person is not the same as simply being a member of Homo sapiens.
Whether the source of rights is norms of domestic or international law, social convention, or nature, being a person carries with it certain rights that other creatures lack, and a person is accorded a greater importance than other creatures when interests conflict. Apart from abortion and other issues involving humans who have lost or never had capacities thought of as essential to personhood, some of the efforts to identify a set of criteria have arisen in response to questions about whether certain classes of non-human creatures should have the rights and protections of persons. These ‘creatures’ might include complex machines that function in ways that resemble the behavior and capacities of humans, or intelligent organisms on Earth or elsewhere with capacities relevantly similar to those of humans. As with many other philosophical analyses, such questions may be the stuff of science fiction today but in the future become real concerns in law, medicine, and foreign policy.
I don’t propose to summarize or critique others’ inquiries into the necessary and sufficient conditions of personhood. First, not all arguments for the permissibility of abortion rest on the claim that the fetus is not a person. (For example, Judith Jarvis Thomson’s 1971 paper ‘A Defense of Abortion’ invites the reader to imagine waking up to find that he or she has been medically hooked up to a famous violinist – unquestionably a person – who will die without the assistance of a living donor’s circulatory system for nine months. Thomson considers the reasons for whether detaching oneself would constitute unjust killing of the violinist, in a number of variations on the scenario.) Secondly, while ethical prohibitions on killing persons are widely regarded as more compelling than claims about the wrongness of killing non-human animals, I don’t share this view. In the vast majority of cases where animals are intentionally killed by humans – particularly the industrialized farming of animals for food products – they suffer, often a great deal. It is hard to see why the sensory pleasure the diner derives from eating the animal is of greater importance than the animal’s pain just because humans have certain characteristics that other animals lack or possess to a much lesser degree (e.g. self-awareness, the ability to reason and solve problems, the capacity for independent action, and the ability to use language). In the words of the English philosopher Jeremy Bentham, ‘The question is not, Can they reason? nor, Can they talk? but, Can they suffer?’,1 and although efforts to minimize the suffering of animals raised for meat are to be praised and encouraged, it’s reasonable to ask why they must be killed at all. Yet cows and chickens are not persons. Since I believe that it’s wrong to kill animals, at least in circumstances where no human’s life or health is at stake, I think there there may be good reasons to include fetuses in the sphere of moral consideration too, even if they fail to meet the conditions for personhood.
The sanctity of human life
In human societies, sentience is not the only factor that is considered relevant to the wrongness of killing, and often it’s not even the primary one. In most cultures, there tends to be a greater concern for human life and interests over the lives and well-being of other animals. Giving humans a greater importance than other species in moral deliberations has been criticized as ‘speciesism’, a rather awkward term analogous to ‘racism’ and ‘sexism’.
On a long view of history, both racism and sexism have only recently begun to be examined and rejected not only by reformers and philosophers but by wider sections of the population, and both are still very much present (for example as implicit bias) even in cultures that are making a conscious effort to combat them. Similarly, a preference for human interests and a reverence for human life for no other reason than that it is human is so culturally entrenched that it can seem unfair and inappropriate to condemn individuals for attitudes that they have never had occasion to question.
Moreover, for many people, efforts to settle on criteria for personhood can seem abstruse: to them, ‘person’ simply means ‘human being’, not androids or extraterrestrial life forms. The reason for their belief or visceral feeling that abortion is wrong is the simple fact that the fetus is human, and there is a strong presumption in favor of a right to life for all humans. (A related problem with conceptions of personhood requiring more than simply being a member of Homo sapiens is that some human beings besides fetuses may also fail to meet the necessary and sufficient conditions.)
How is the ethics of eating meat relevant to abortion? Those who believe that consumption of meat perpetuates the cruelty of the meat industry appeal to sentience, not personhood, in arguing that we should not contribute to animal suffering. Cows are not persons, but personhood need not be a factor at all in moral judgments about killing.
Pregnancy as a consequence of choices
Some efforts to carve out exceptions to the moral prohibition on abortion have focused on circumstances in which people find it easier to empathize with someone facing an unwanted pregnancy. These include situations in which pregnancy endangers the mother’s life or health, but also where pregnancy is a result of rape or the use of physical, economic, social or emotional power (for example a family relationship: statutory exceptions are still often worded as ‘rape or incest’) to get a child or other vulnerable person to acquiesce to sex.
To hold that abortion is permissible in these cases invites the question: isn’t the fetus conceived in such terrible circumstances as much entitled to life as the one conceived as a result of a broken condom, or the one whose mother recklessly engaged in sex without contraception? Beneath the idea of compassionate exceptions is the implicit assumption that these are the only circumstances in which the woman or girl is not at fault. Every other pregnancy, on this view, is a result of the woman or girl’s choices, actions, or errors of judgment, and she is morally bound to accept that result.
Of course every pregnancy is brought about by the actions of a man, as well. He may choose to accept that consequence and share it to the extent that he can by providing material, emotional and other assistance, and social pressure or legal requirements may create and enforce such obligations. But biology does not.
For most women, pregnancy is not at all like being hooked up to a comatose violinist. It may be trouble-free or it may involve discomfort, but not wanting to be pregnant goes beyond simply not wanting to be a parent. Taking the chance that it will not have significant negative effects on most facets of life is rational only for women who want to become pregnant, and want to do so at that particular time in their lives. An ethical framework that would force anyone to carry and bear a child against her will is one that requires more of people who are capable of bearing children than it does of those who are not. In treating pregnancy and childbirth as a natural state of affairs that should not be contravened, the ‘pro-life’ movement reveals its view of women as subject not only to all of the obligations that men have as persons and moral agents, but to additional ones as well. Whatever the criteria for personhood may be and whether or not personhood is relevant to moral obligations regarding fetuses, it was never in question that humans who have been alive long enough to have sex, reproduce, and make decisions are persons. To be denied control over what happens to and within one’s own body is to be denied full personhood.
Reasons for seeking an abortion
Some circumstances in which abortion is sought are, like the rape exceptions discussed above, more likely to inspire sympathy than others, but attempts to distinguish between acceptable reasons and ‘selfish’ ones are likely to lead to highly subjective and arbitrary conclusions. Lethal fetal abnormalities that would result in a short and agonizing life for the child, for example, should surely move all but the most intractable opponents of abortion. But is poverty, domestic conflict, depression, or a struggle with addiction a ‘good enough’ reason? What about the woman who did not realize she was pregnant before a detectable heartbeat? What about the student living away from her parents and working part-time to put herself through college? Does a happily married woman in a well-paid job with no debts or obligations have any justification for terminating a pregnancy? Is it all right for someone to have an abortion if she did her best to avoid getting pregnant but somehow ended up being among the fewer than one out of a hundred women for whom the pill didn’t work? What if she is repelled by the idea of having a human being growing inside her, or horrified by the changes to her body? Does that mean she’s a moral monster whose interests don’t count? What if the conditions of women’s employment even in a supposedly egalitarian, family-friendly culture do not make it easy even for those who want to be parents, let alone those who actively avoid pregnancy and motherhood?
It’s fairly uncontroversial that if someone were unexpectedly to find herself entrusted with an infant that she has no desire or intention to raise, she is still morally obligated to take care of that baby for as long as necessary to keep it healthy and content, at least until finding someone more willing and able. It would be an insupportably heinous act to kill a baby, whether actively or by abandoning it. (Again, the source of this duty isn’t personhood; most people also believe this is true if one is unexpectedly entrusted with a dog or other (non-threatening!) animal.) But there’s a huge difference between a baby and a fetus, and an affirmative answer to ‘Is a fetus a person?’ does not change that difference. The fact that some women are willing and able to carry a pregnancy to term has no bearing on the fact that others are not. Arguments that women are always obligated to do so, should conception occur, rest on the premise that if you have a uterus and you have sex with a man, then you have a moral duty that outweighs the right to control what happens to and within your own body. Such a duty could not apply to every person, only to persons capable of getting pregnant, and in that way would be different from every other fundamental principle contained in moral codes.
Moral obligations that only some people have
It may be objected that there are surely some duties that some but not all people owe to others. If a person who can’t swim is in danger of drowning, neither the law nor ethics expects a quadriplegic onlooker to do more than call for help, whereas a strong swimmer with lifesaving skills would be remiss not to use them. How is that swimmer, taken by surprise but able to save a life, different from the woman who didn’t expect to get pregnant but did? The only way a trained individual could avoid being put in the situation of having to use her lifesaving skills would be never to go to beaches; similarly, apart from surgery there’s only one completely fail-safe way to avoid pregnancy. Is there a relevant difference?
The difference is that learning lifesaving skills is, for many people, a requirement of learning to swim or to sail a boat, or earning a Scout badge. Anyone who signs up for first aid training is made aware that as soon as a trained and qualified person begins to provide first aid to an injured person, she has a duty of care to that person. There is no analogous quid pro quo under which women expressly or tacitly agree to keep a fetus alive should one be conceived – unless you think that being female and engaging in heterosexual intercourse is like being a first aider who has started to perform CPR.
Moral obligations based on biological characteristics
My arguments thus far have assumed that having a uterus is a contingent characteristic like being able-bodied or knowing how to do CPR. But what if having a particular kind of reproductive system is an essential characteristic of an individual and fundamental to the kinds of acts that he or she can be held responsible for, just as having a Homo sapiens brain is fundamental to having moral obligations that we attribute to all human beings? Is there a case to be made for women having some moral obligations that men don’t (or vice versa)?
For thousands of years, different rights and responsibilities have been attributed to women and men. When any of these social expectations and treatment have been challenged, they’ve been justified by reference to biological characteristics. There should be no need to point out that this line of reasoning has been used to create and reinforce unequal power relations. Injustice and exploitation have been suffered by members of other groups in other times and places as well. There should also be no need to point out the specific forms it took in African American history.
Consider the following hypothetical scenario. A new and fatal disease appears, striking down people of all ages.2 Research establishes that an individual can be cured by a blood transfusion from a person who is not a relative, that all of the people who have been found to have the antibody have been members of populations originating from the islands of a particular region, and that these people are 99.99 percent likely to have the antibody. Is it morally obligatory for every person who meets the criteria to submit to the lengthy and arduous transfusion process to save a life, or merely admirable? Would laws compelling them to do so be fair and just, especially given the history of race-based and anti-immigrant laws in the United States and elsewhere?
A disanalogy between this scenario and pregnancy is that the islanders in this scenario haven’t ‘done anything’ that constitutes a tacit agreement to having to decide whether to save a life or not. They just happen to be a population for whom there’s a high statistical correlation to the presence of the antibody. By contrast, in the real world, pregnant women have had sex, which they know may result in pregnancy.
Suppose, then, that being a member of the relevant population is necessary but not sufficient for carrying the antibody and that the person also must have (for example) been exposed to salt water – or (for another example) had sex with another person. If you didn’t want to be put in the position of having to decide whether to save or let someone die, you could simply stay away from ocean beaches, or abstain from sex – the latter of which is exactly what the hard-line abortion opponent would demand of women who are unwilling to take even the slightest chance of getting pregnant.
But a thought experiment does not need to be parallel in every detail. (Nor does it have to be scientifically true to life.) The point of this scenario is to highlight the specific injustice of attributing a moral obligation to a group of people on the basis of biological characteristics, when putative membership in such groups has often resulted in systematic discrimination, exploitation and denial of opportunity.
Ethics and legality
Nothing that I’ve said here implies that I think abortion is unproblematic or just another form of birth control. It should be clear from my remarks about animals that I find gratuitous killing morally repugnant. But although I would love to see an end to factory farming for that reason, outlawing meat is unlikely to bring an end to the killing of animals and – in the absence of feasible and widely accepted alternatives – would have counterproductive consequences. Believe it or not, I also think abortion is something that people should try to avoid. If someone has any doubt about whether she wants to be a mother at a particular time, it goes without saying that she should take steps to ensure that conception does not occur at that time. I don’t think, however, that women are morally obligated to abstain from sex to avoid even the slightest chance of pregnancy.
Secondly, abortion is not gratuitous killing. No one terminates a pregnancy for fun. While this is not the place for narratives of the many reasons women choose to have abortions, such stories make it clear that the decision is rarely an easy one. As with any generalization, exceptions can be found if you look hard enough, and as with any counterexample, they may be anecdotally vivid. But do ‘selfish’ motives or character justify punishing not only the selfish person but all who don’t fit that profile?
Finally, abortion is different in one significant way from the various types of homicide that are rightly treated as criminal offenses. The fetus is the only kind of human that lives inside the body of another human being; only female human beings are able to be pregnant and give birth; and only female human beings must take this into account in their decisions about sex. Men can have sex without the potential bodily consequences that women must consider. That is the essential reason for my opposition to legal sanctions on abortion. Such laws would treat women as having different obligations from men, not on the basis of a duty of care arising from skills learned voluntarily, but on the basis of biology. This is also why I don’t think an answer to the question ‘Is the fetus a person?’ settles the question of whether abortion is permissible. The latter question is essentially the question of whether women should have the final word on what happens in and to their bodies, and when there’s a conflict between the interests of a woman and those of a fetus she’s carrying, I believe the woman’s interests take priority.
I applaud efforts to provide help and hope to women who, all things considered, would rather carry their pregnancy to term, but feel overwhelmed by other pressures. However, conditional assistance is not the answer to every unwanted pregnancy, and denying women any options, by deception or withholding information, is one of the most egregious and abhorrent features of a view of women as not entitled to make certain decisions.
Those who believe their chief moral obligation is to save the lives of the unborn are ignoring the elephants in the room. There is very little in the way of a ‘safety net’ in the United States. The inadequacies of health care, employment, and societal support – particularly for women with less education and insecure or low-paying jobs, and (yes, still) women of color – are such that carrying a pregnancy to term can be catastrophic in multiple ways. As long as any woman has reason to believe having a baby would radically interfere with her ability to work or care for dependents, and as long as women face significant impediments at work on the basis of their sex or reproductive capacity, and as long as having children is regarded by employers, government and society as only a women’s issue (not one of primary concern to men), and as long as states, schools, and individuals continue to pretend that ‘abstinence only’ sex education is effective, and as long as parental permission is required for girls to obtain effective birth control, and as long as employer-provided health insurance doesn’t include contraception, treating abortion as a sin and a crime is itself a moral outrage.
The abortion rate in the United States has, in fact, been declining. This is true in other developed countries, as well, and reasons for this trend probably include improved contraceptive use. (Teen pregnancies have also decreased.) It is not clear whether or not diminished access to abortion services in the US is also a factor. What is clear is that some women have continued their unwanted pregnancies as a result of new state restrictions. Those who are ‘pro-life’ should want to know what has happened in the lives of those women (and their children) since they gave birth. The effects of making abortion impossible to obtain may be far more wide-ranging than deaths from botched attempts or imprisonment for breaking the law. Whether they have had assistance from private, religious, or government organizations or none at all, and whether they have been able to make the situation into a positive experience, have had to make major adjustments, or have had things go from bad to worse, it is a certainty that those who have carried an unwanted pregnancy to term are not living the life they thought they had chosen.
Every pregnancy should be welcome and every child should be wanted. Banning abortion does not bring about these things. Working toward an end to gross inequalities of income, education, class, race, and gender, and toward full access to health care and contraception, has a much better chance of bringing those aims within reach.
Note
As I was preparing to publish this post, Judith Jarvis Thomson passed away on 20 November 2020. https://dailynous.com/2020/11/20/judith-jarvis-thomson-1929-2020/
Reference
Thomson, Judith Jarvis, ‘A Defense of Abortion’, Philosophy and Public Affairs 1(1), Fall 1971, pp. 47–66 https://spot.colorado.edu/~heathwoo/Phil160,Fall02/thomson.htm
Photo credits
Outdoor Sculptures II by Vidar Nordli-Mathisen on Unsplash
But Men Must Work and Women Must Weep by Walter Langley (1883), Birmingham Museums Trust on Unsplash
Annunciation by Leonardo da Vinci, Florence, Uffizi Gallery by jean louis mazieres on Flickr, licensed under CC Attribution-ShareAlike 2.0 CC BY-NC-SA 2.0
String quartet in Oradea, Romania by Larisa Birta on Unsplash
Dog Days, Santa Maria, United States by Tim Mossholder on Unsplash
CPR by Mohd Nasir Mat Noor on Flickr, licensed under CC Attribution 2.0 Generic (CC BY-NC-SA 2.0)
Sunset over a couple, Port Melbourne Foreshore, Port Melbourne, Australia by Johan Mouchet on Unsplash
The time is now: mums waiting for family planning services, UK Department for International Development on Flickr, licensed under CC Attribution 2.0 Generic (CC BY 2.0)
Citation
Please cite as: Miller, L. Elaine, ‘Ethical Equity, Pregnancy and Personhood’, It Could Be Words (blog), 25 November 2020, https://it-could-be-words.com/ethical-equity-pregnancy-and-personhood
- Bentham, Jeremy, An Introduction to the Principles of Morals and Legislation, Dover Publications 2007 (first published 1780), p. 311 n [↩]
- Suppose further that the toll taken by this disease is nowhere near as high as that of Covid-19, a real-world catastrophe that was not envisaged at the time of writing. [↩]
