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Contraception and Abortion:
A Utilitarian View

2. The Traditional Positions

The traditional debate between conservatives and liberals centres on the application of some prohibition against killing, such as 'It is always wrong to kill an innocent human being', or 'It is always wrong intentionally to kill an innocent human being'. Such prohibitions are often worked into some more comprehensive normative theory. The more usual of these theories are the acts and omissions doctrine and the doctrine of double effect.

The acts and omissions doctrine, as it is applied to the abortion problem, stipulates that there is a crucial moral distinction between killing an (innocent) human being and letting one die. According to this doctrine, the former is absolutely prohibited while the latter is allowable or is less blameworthy. The doctrine of double effect, on the other hand, when applied to acts of abortion, is used in conjunction with an absolute prohibition against the intentional killing of (innocent) human beings. The purpose of the doctrine is to indicate the conditions under which the killing or letting die of an (innocent) human being is allowed. These conditions are, briefly stated, that the act of killing or letting die must not involve the transgression of an absolute prohibition, the death must not be intended, the death must be sufficiently outweighed by some good effect, and this good effect must not be a direct causal product of the death.

Book cover: Causing Death and Saving Lives by Jonathan Glover

The acts and omissions doctrine has not survived fatal objections levelled against it,[3] even in spite of recent defences.[4] I have nothing more to add to these well-known objections here. The doctrine of double effect has also been severely criticized and found wanting.[5] I have dealt with this doctrine in detail my Allan [2015b]. All such absolute prohibitions against some or all forms of killing human beings, however, have one defect in common; they all prohibit some rare cases of killings that seem morally obligatory.[6]

The conservatives who advocate some such absolute prohibition are in a doubly difficult position, for they have so far failed in their attempt to demonstrate that the conceptus is a human being and, therefore, covered by the absolute prohibition. The liberals' attack on this point seem well-founded.[7] Conservative discussions on this issue have played fast and loose with the meanings of such varied terms as 'human', 'human being', 'person', 'life', 'human life' and 'humanhood', often conflating their meanings with the result that obvious fallacies ensue.[8] For example, conservatives sometimes claim that the zygote of human parents is human (it is not canine, equine, etc.) and, therefore, is a human being. The fallacy is exposed by the fact that the spermatozoa and ova (the germ cells) of human parents are also human (they are not canine, equine, etc.), and yet conservatives do not equally go on to conclude (and rightly so) that germ cells are human beings.

But even if the conservatives were successfully able to show that the conceptus from the time of conception is a human being, their case would not yet be fully established. For the conservative, to kill the human zygote is as morally unjust as the past discrimination practised against Negroes during the time of the slave trade.[9] However, it may be the case that slavery is unjust not because Negroes are human beings, but because they share with us some other morally relevant characteristic, such as self-consciousness or the capacity to suffer. In fact, it is difficult to see how species membership, in itself, can be the required morally relevant characteristic.

Unless the conservative can demonstrate why species membership simpliciter is any more a morally relevant criterion for enjoying moral status than race or gender membership, he may turn out to be as unjust as the liberal opponents that he criticizes. If this charge of unjust discrimination on the basis of species membership, or speciesism (like racism and sexism), is correct, and I shall argue below that it is, then the moniker, 'Right to Life' movement, is a misnomer. The movement is misnamed because it seeks to maintain special status for members of its own already privileged species at the expense of the lives and sufferings of those creatures not endowed with the good fortune of being a member of the privileged class, homo sapiens.

Some conservatives, in order to circumvent the semantic difficulties they experience in classifying the human zygote as a human being, have claimed that we have the same obligations to potential human beings as we do to adult human beings (or that they have the same rights as adult human beings). However, this is far from obvious. It seems nonsensical, even meaningless, to allow zygotes the freedom to travel, to vote in elections, to purchase alcoholic beverages, and so on (or to grant them the corresponding liberty rights).

A second difficulty for the conservatives is that the class of objects that can be identified as the class of potential human beings is relative to the technological capabilities of the day. In the future, it may become possible to clone any given cell of a living human being into a new adult. Under these circumstances, the conservative would be forced, for the sake of consistency, to morally prohibit haircuts and shaves, nail clipping, removal of diseased organs, and so on, for all of these actions would result in the deaths of potential human beings.

Book cover: Abortion Rites: A Social History of Abortion in America by Marvin Olasky

The conservative may reply that it is only potential human beings who will reach adulthood during the natural course of development that we are obligated to keep alive. However, this rebuttal is faced with the paradoxical conclusion that an in vitro zygote has no moral status while an in utero zygote has full status. What is the reason for this discrimination? In other similar circumstances, we do not discriminate between beings with natural potential and those with artificial potential. A bomb victim, for example, whose potential to stay alive is dependent on the availability of medical technology, does not forfeit our obligation to keep him alive merely because to keep him alive requires artificial means.

But even if this distinction between natural and artificial potential were found to be morally relevant, the conservative would be faced with a further serious objection. Spermatozoa and ova have the potential to reach adulthood during the course of their natural development, and so are in this respect akin to zygotes. And yet we are under no prima facie obligation to copulate whenever possible in order to maintain the lives of as many germ cells as possible.

The Right to Lifer's claim that the right to life is anterior to all other rights, and the one on which all others depend, is similarly untenable.[10] There is no logical fallacy committed in denying a sentient[11] creature a right to life while granting it, say, a right to be free from unnecessary suffering. Of course, if the creature is killed it no longer has the right to be free from unnecessary suffering. However, this only demonstrates that its right to be free from suffering is logically dependent on its being alive and not on a right to life.

The liberal position is similarly fraught with difficulties. The traditional feminist position that people have the right to control their own bodies, and that this entails that women have the right to abortion, assumes without argument that there is no need to take into consideration the welfare of other parties. Furthermore, it is not at all clear that people have an inviolable right to determine what happens to their bodies. For example, the state may be obligated to conduct compulsory vaccinations in the interests of its constituents. It may be similarly obligated to conduct the compulsory sterilization of grossly mentally retarded public patients afflicted with severe heritable diseases.[12] The more sophisticated defence by Thomson [1971], which recognizes that there may be a conflict of interests, stands or falls on the credibility of her theory of liberty rights. In my discussion of Tooley below, I will give reasons for thinking that this theory is untenable.

Tooley [1974][13] has provided a radical liberal defence of abortion that also condones infanticide. He has argued that abortion and infanticide do not infringe on the right to life of the conceptus and infant because the conceptus and infant have no such right. This is because, according to Tooley, a necessary condition for a being having a right to x is that he/she has the capacity to have the corresponding desire for x. For Tooley, the conceptus and infant have no such capacity to desire a future life. Tooley's actual argument is more complicated than this; however, this summary captures its central point.

The major difficulty in Tooley's analysis lies in the apparent independence of many rights from their corresponding desires. A young child has a right to a free secular education and an adequate nutritional diet, even though he/she does not have the capacity to have the corresponding desire. Similarly, patients with severe cognitive dysfunction have rights to physical protection and a stimulating environment even though they do not have the capacity to desire such. I think Tooley fails to distinguish between the having of a right and the right-holders capacity to recognize that right.

Even if Tooley had succeeded in giving an account of what we ordinarily mean by a 'right', he has not given us any reasons for thinking that there are any such rights. He has failed to provide a theoretical grounding for the view that adults have a right to life whereas conceptuses and infants do not.[14]

Book cover: Bioethics: An Anthology by Helga Kuhse and Peter Singer

The traditional moderate views on abortion also fall short on making their case. Only the most credible of these warrants brief comment here. This is the view that viability, the point during gestation at which the foetus is able to survive ex utero, marks the moral dividing line between allowable and wrongful abortion. After the point of viability, the foetus is able to lead an independent existence, being no longer physically dependent on its mother for its life. The most serious objection to this view is that in other situations of dependence, we do not think that the physical dependence for life of one being on another is a sufficient reason for denying an obligation to keep the dependent being alive. Quadraplegics, Siamese twins and some mentally incapacitated fall into this category. In any case, even the neonate remains physically dependent on others for its continued existence for some considerable time after birth. The moral dividing line, it seems, is not so easily drawn.

This concludes my summary critique of the traditional stances on abortion. Neither conservatives nor liberals have provided a satisfactory account of the ethics of abortion, primarily because both sides have presumed that the gaining of moral status is an all or nothing affair. However, just as importantly, neither side has fully appreciated why the question of abortion strains the very limits of our moral sensibilities. Neither side has recognized that the problem of abortion is a complex and perplexing problem precisely because there is a conflict of interests between two parties, the pregnant woman and the foetus.[15] The conservative and the liberal alike, by almost exclusively ignoring the interests of one of the parties, have been led to their respective untenable, one-sided solutions.

The complexity of the problem is many times further magnified by the fact that the biological and psychological nature of one party to the conflict is not fixed, but varies exponentially from the beginning to the end of the gestation period. To regard the newly fertilized ovum (which is more akin biologically and psychologically to the germ cells) and the late term foetus (which is more akin biologically and psychologically to the adult) as having the same moral status is to take a too simple approach. To fix on some intermediate point during the gestation period as the point at which the conceptus suddenly gains full moral status, as the traditional moderates do, is also to fail to do justice to the gradual development of the conceptus' biological and psychological characteristics.

The interests of the conceptus are not constant during its development. Neither is its interests dramatically altered at some fixed point during this developmental process. The abortion question is even more complicated than this, however. So far, I have avoided mentioning the interests of third parties. A credible view on abortion must take into consideration the interests of the prospective father, the state, and any other affected persons and institutions. Below, I will sketch out how I think such a view should look.

Footnotes

  1. [3] See, for example, Glover [1977: ch. 7], Tooley [1973, 1980], Bennett [1966] and Thomson [1973].
  2. [4] For recent defences, see Foot [1971], Dinello [1980], Murphy [1980] and Trammell [1980].
  3. [5] See, for example, Glover [1977: ch. 6] and Thomson [1973].
  4. [6] For some examples, see my Allan [2015b: §3.4].
  5. [7] See, for example, Becker [1975] and Kohl [1974: 41–5].
  6. [8] See, for example, Noonan [1973], Ramsey [1971] and Grisez [1975].
  7. [9] See, for example, Noonan [1973].
  8. [10] See, for example, N.S.W. Right to Life Association submission 585 to Royal Commission on Human Relationships, reported in Evatt et al [1977: 149]. See also Margaret Tighe, president of Right to Life Association of Victoria, Letters to the Editor, The Age, 25th September, 1980.
  9. [11] I take a 'sentient' being to be a being capable of feeling pleasure and pain.
  10. [12] For a fuller presentation of these arguments, see Sumner [1981: 49–57], Warren [1975: 121] and Roe v. Wade [1973: 78].
  11. [13] Tooley's paper was originally published in 1972 in Philosophy and Public Affairs 2/1. A revised version of the same essay appears in Feinberg [1973: 51–91].
  12. [14] Sumner [1981: 57–64] has levelled a similar criticism against Tooley.
  13. [15] I take it that something is in a being's interest if it promotes his/her/its future pleasure or happiness. It is debatable whether the present capacity to feel pleasure or pain is a necessary condition for a being's having interests. If this were the case, then the earliest point at which the conceptus would have interests is the time at which it gains sentience; sometime later than the 18th week of gestation. If the weaker condition of future or present capacity is favoured, the zygote would have interests. However, if this were the case, germ cells would also have interests. I am not sure that we would want to admit that, say, spermatozoa had an interest in frequent sexual intercourse.

Copyright © 2015

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