Abortion:

Judith Jarvis Thomson’s article “A Defense of Abortion”

Famous argument in favor of abortion rights

Thomson attempts to demonstrate that abortion remains the right of the woman in (nearly) all cases without denying the “personhood” of the unborn.

She is attempting to move the dialogue beyond the seeming impasse over the moral status of the embryo/fetus by granting for argument sake the anti-abortion argument’s strongest claim, that the embryo/fetus is a human person who possesses dignity and rights.

It is important to realize that Thomson is NOT claiming that the zygote/embryo/fetus is a person. She is just agruiong that, even granting that the fetus is a person for argument’s sake, a woman still has a right to have it removed from her body, despite the fact that the removal will result in its death/

Famous Violinist Thought Experiment:

Imagine, you wake up one morning and find yourself attached to a famous violinist. He is suffering from some disease and needs the use of a “body donor” for the next couple of months to survive. Unbeknownst to him. his fanatic fans have kidnapped you in the middle of the night and hooked you up to him for this purpose. They now inform you that you must spend nine months (or maybe longer) connected to the violinist. His life depends on using your body during that period. (You are a living dialysis machine.)

Thomson claims that a good Samaritan might would go out of his way to save the life of the violinist, but that would be an heroic deed, and not morally required of all people.

NB: We see a classic conflict between “Virtue” ethics and “Deontological Ethics.” Excellence (or the pursuit of it) is not regarded as “obligatory”

One who refuses to undertake such heroic service should not/would not be considered a wrongdoer she claims. The violinist is NOT “entitled” to the kidnapped person’s assistance; the kidnapped victim did not contract for this. Thus, by refusing to provide such a service, he or she would have violated no right held by the violinist and so cannot be said to have wronged him.

Elsewhere in the article Thompson suggests that if someone were to trespass through an open door or window left ajar, it may be praiseworthy to exercise tremendous patience and to wait for the person to leave, but there is no blame in expelling an unwanted guest from your house, even if the person would die as a result.

Again, the trespasser, innocent or not, has no right to stay in the home that rightfully belong to another. Their presence is always and only at the suffrage of the owner.

In the same way, Thomson argues, a woman can remove an unwanted fetus from her body.

This would also be true if we imagined that the woman had put bars and screens over the windows and doors to prevent such unwanted intruders. Such home owners have an even greater justification for removing the trespasser-child from the premises-womb, even if such removal must be by death-dealing force, although, talk of “justification” may be misleading since the home owner needed none to expel someone from his or her home.

At this point it wi worth noting that the three thought experiments enumerated above correspond to importantly different cases of pregnancy and actions:

Where the scenario has resulted from a violation of the woman, a violation for which she is blameless and without responsibility (.e.g. rape)
Where the scenario is an untended result of some action (opening doors and windows) and inaction (not attempting top bar entrance) on the part of the woman. (e.g. sex without contraceptive measures).
Where the scenario is and accidental result which the woman active sought to prevent. (w.g. sex with contraceptive measures).

Special Obligations of Parents:

One way one might object to this line of argumentation is to suggest that parents have duties to their own children that individuals do not have to violinists (famous or otherwise) and wandering strangers.

However. Thomson explicitly denies that special duties arise from parent-child relationship.

She claims:

“they (biological parents) do not simply by virtue of their biological relationship have a special responsibility for it (biological offspring)” (78). Thus, a woman may have an abortion licitly, though it is praiseworthy if she acts in a heroic fashion and carries the child to birth.

Critique of Thompson Arguments:

Her argument rests largely on “Thought Experiment”

Thought Experiment:

Begin with a moral controversy where our intuitions are unclear,
Create a fictional case analogous to the controversial one to test our intuitions (hopefully where our intuitions are more clear.)
Get an intuitional read.
Apply the results to the controversial case on the grounds that “like cases be decided alike and that the real life controversial case is relevantly similar to the imagined scenario.

One can fault her argument in several different ways:

Having a different intuition response to the thought experiment. (e.g. having the intuition that on really is doing something wrong by walking away from the violinist, etc.)
By citing sighting disanalogies between the real life cases and the imagined scenarios.

Since “like” cases must be decided alike, one way to weaken her position is to show that the two cases, her thought experiment and Abortion, are not really alike.

Challenging whether the macro-theoretical assumptions she makes really bear out the conclusions she draws.

Disanalogies with Thompson’s “Famous Violinist Analogy”:

This would only be analogous to cases of Rape.

Abortion is not simply “unpluging” one being from another. Abortion requires the physical distraction of the body of the fetus. One might claim that an analogous case would require one to destroy the body of the violinist. (However, some might counterclaim that this amounts to an aesthetic disanalogy, not a moral one.)

Thomson’s violinist analogy relies on our intuition that death that is merely foreseen, but not intended, allowed but not chosen. We have moral precedent cases where this may sometimes be justified. While this intuition is reasonable and may be at play in the case of the violinist, in most cases abortion is not simply about “ending a pregnancy,” which, after all, takes place at every birth, but rather about (deliberately) killing the fetus.

Question: Is the right to an abortion the right to “end a pregnancy” or the right to “end the developing human life.” Consider “partial birth abortions.”

Disanalogies with Thomson’s “Intruder Analogy” :

1. The woman’s action of leaving the door unlocked does not cause the intruder to be in the house—opening the door only removes an obstacle, but the man and the woman cause the baby to be where it is, even if they tried to prevent it.

2. Second, an intruder enters a person’s house under his own power. Having done something wrong, he does not merit our sympathy, but the child is not responsible for ending up where he or she is.

A more precise analogy would be to suppose that the “intruder” a two year old child or an elderly person with dementia who wandered accidentally into the house. What would our intuitions tell us about this more analogous case? Would it be acceptable to kill such a person, an unwitting trespasser, even if this were the only way to make the person leave the house?

3. Leaving windows or doors open does not in itself lead to burglars the way that having sexual intercourse leads to children.

A more precise analogy would be to imagine that one lived in a neighborhood had many houses of similar make and one where many children and elderly Alzheimer patients wander, frequently into the wrong house by accident. (The environment is known to be such that leaving one’s door open is likely to produce an innocent, sometimes wanted, sometimes unwanted, guest) If we couldn’t find another way of getting them out of our house as quickly as we’d like, would we then be justified in killing these young children or old folks who wandered into our house.

Intuitive Challenge to Parental Responsibilities:

Thomson asserts that parents “do not simply by virtue of their biological relationship have a special responsibility for it [their child]” (78).

If this were true, the same lack of duty should hold true for men. According to this view, men owe no child support to the women they impregnate (unless it were their choice to take responsibility for their children) because a man’s biological relationship to his child in no way entails that he has a “special responsibility for it.” But this runs counter to the intuition many have (and laws we’ve enacted as a result of this intuition).

Further, according to the analysis Thomson has given, it would be permissible for these parents to abandon the child, even if this would likely result in the child's death. In fact, according to her analysis, there would be no “wrong doing” were you to see a child paying alone in a Subway station near the tracks and walk away without so much as calling the police.

Presumption Objections:

Even on her own grounds, Thompson’s view only succeeds if one accepts:

1. Contractualism

Contractualism: The view which holds that one has no positive obligations other than those one freely accepts. Alternatively, the view that humans have negative rights only, but no positive rights.

Negative Rights: There are “freedoms from interference. It is the sort of right one has when, to honor that right all a moral agent must do is leave that person alone.

Positive Rights: An entitlement. A “freedom to something. This is the sort of right one has if one is entitled to something, and that, in some cases in order to honor that right, other moral agents might be duty bound to provide the person with some good or perform some service for the person.

2. The view that property rights trump the negative rights not to harm.

Both of there are dubious assumptions at best. An this means her conclusion is made no more certain than its dubious, weak premises.

Back to the Beginning

If this is the case, then there seems to be no avoiding the question, “What is the moral status of the fetus?” as Thomson had hoped to do.

We must consider:

Is the fetus a “person?”

To do that we must find a principled way of distinguishing persons from non-persons. If I destroy a rock, no one will accuse me of doing something immoral. If I destroy another human being, many (most?) will claim that I have done something wrong. What’s the difference? Well a rock isn’t a person, but we believe humans to be persons. Now which is a fetus?

Principles of “Personhood”

Bear in mind that for Kant and others, the only things with moral status are “persons.” Some might claim that even non-persons have some moral standing, however, it is generally agreed that “persons” are objects of greatest moral worth and possessors of the most extensive rights.

So how do you tell a person from a non-person?

Here are seven attempts along with their biggest problems:

1. Rationality

Anything which is rational is a person.

Pro:

Does capture something we take to be important.
Would include intelligent life from other planets (Mr. Spock, say) and thinking machines. Most take that to be a good thing.

Con:

Would not include small children, the severely mentally disabled, the insane, the senile elderly, people in comas or even (depending how rigidly it is interpreted) those sound asleep.

2. Potentiality

Usually this is understood as anything rational or with the natural potential to be rational.

Pro:

Does capture something we take to be important.
Would include intelligent life from other planets (Mr. Spock, say) and thinking machines. Most take that to be a good thing.
Avoid the narrowness of the rationality principle

Con:

Uses vague notion of “potentiality.”

Do chimpanzees have the “potential” to be rational?
Dauphins?
My dog (after EXTENSIVE brain surgery?

If so, seems overly broad.

3. Species Principle

Pro:

Doesn’t include my dog. (Most consider that a good thing.)

Con:

Seems an unjustified prejudice like sexism or racism (Species-ism).

Speciesism: To favor one species claiming they are deserving of greater rights and privileges for no other reason than that they are members of the species that they are. (not unlike Racism or Sexism)

Would NOT include Mr. Spock, no matter his intelligence, etc.

4. Heart, Brain and Lung Principle

Technically this is not a personhood principle, so much as a “when does the life of a person begin?” principle. If a person is said to have died when either the heart stops or they stop breathing or their brain stops working (no EEG) then the absence is any of these is an indication of an absence of life. Therefore, until the developing fetus has a functioning heart, brain and lungs, it is not “a living person” (though admittedly living tissue).

This is not that dissimilar to the old “quickening” principle are the start (and end) of life.

Pro:

Trying to stay consistent with both ends of life (beginning and ending).

Con:

It just as controversial as a standard of death as it is as a standard of life beginning.
Not clear what “functioning” is.

If the function of the lungs is to exchange oxygen, they don’t function at all until after birth. But if the function of the lungs it to “respirate,” they do that much earlier. Similarly heart cells begin to beat shortly after they differentiate, but they do not circulate blood until much later. The “function” of the brain is NOT merely to give off an electric current is it?

5. Tooley’s Principle

Named for Anthony Tooley.

Notes On: "In Defense of Abortion and Infanticide"

by Michael Tooley

I. TOOLEY'S THESIS:

Neither fetuses nor neonates possess a right to life. Therefore, neither abortion nor infanticide involves the violation of anyone's right to life. So unless there is some other sound objection to either abortion or infanticide, both practices are morally acceptable.

II. TOOLEY'S APPROACH:

(1) Identify that property (or set of properties) which an entity must possess in order to have a right to life.

(2) Argue that neither fetuses nor neonates possess that property.

(3) Conclude that neither fetuses nor neonates have a right to life.

III. WHAT SORT OF BEING CAN POSSESS A RIGHT TO LIFE?

A. THE INTEREST PRINCIPLE:

Compare the following two claims:

(1) A child does not have a right to smoke.

(2) A newspaper does not have a right not to be torn up.

"There is some property P such that, first, newspapers lack property P, and secondly, it is a conceptual truth that only things with property P can be possessors of rights." (p. 123)

What might property P be? A plausible answer: the having of interests.

An entity's interests is a function of its present and future desires, both those it will actually have and those it could have.

The (General) Interest Principle: An entity cannot have any rights at all unless it is capable of having at least some interests.

So far, all Tooley thinks he has established is the bare minimum a thing must have to have any rights at all. Therefore, he would conclude that anything incapable of having a desire/ interest, is incapable of having a “right.” (e.g. a rock)

B. THE PARTICULAR-INTERESTS PRINCIPLE:

Consider the following claim:

(3) A cat does not have a right to a university education.

Is the status of this claim more like that of (1) or (2)?

The Particular-Interests Principle: It is a conceptual truth that an entity cannot have a particular right, R, unless it is at least capable of having some interest, I, which right R protects. (p. 125)

Rights are thought to “protect” a thing’s interests. If my cat can have no interst in an University education, there is no interest to protect, and therefore there can be said to be no right (to a university education) for my cat.

C. THE REVISED PARTICULAR-INTERESTS PRINCIPLE:

A has a right to X if and only if

"...it can be in A's interest to have X, and either (1) A is not capable of making an informed and rational choice whether to grant others permission to deprive him of X, in which case, if it is in A's interest not to be deprived of X, then, by that fact alone, others are under a prima facie obligation not to deprive A of X, or (2) A is capable of making an informed and rational choice whether to grant others permission to deprive him of X, in which case others are under a prima facie obligation not to deprive A of X if and only if A has not granted them permission to do so." (p. 127)

(N.B.: Don’t worry too much about this proviso. I really concerns whether one can ever give one rights away to someone else to “violate” such as when a moral agent grants his doctor the right to take the agent’s life. )

D. WHAT DOES THE RIGHT TO LIFE REFER TO?

The right to life refers to the right that a subject of consciousness has to continued existence.

E. WHEN DOES AN ENTITY HAVE A RIGHT TO CONTINUED EXISTENCE?

The concept of a right is such that an individual cannot have a right at time “t” (some given point in time) to continued existence unless the individual is such that it can be in its interest at time t (at the very same point in time) that it continue to exist.

The continued existence of a given subject of consciousness cannot be in that individual's interest at time t unless either that individual has a desire, at time t, to continue to exist as a subject of consciousness, or that individual can have (is at the moment cognitively capable of having) desires at other times.

N.B: As I write these notes, seated at my computer, I am not consciously desiring to continue to exist; I am too busy writing this. However, if at this very moment you were to ask me, “Hey, you want to get lunch tomorrow?” I would say, “Sure.” That means that, at this very moment, I can (I have the cognitive ability to) desire to continue to exist.

An individual cannot have a desire to continue to exist as a subject of consciousness unless it possesses the concept of a continuing self.

An individual existing at one time cannot have desires at other times unless there is at least one time at which it possesses the concept of a continuing self.

C: Therefore, an individual cannot have a right to continued existence unless there is at least one time at which it possesses the concept of a continuing self. (p. 130)

IV. THE MAIN ARGUMENT:

An entity cannot have a right to life unless it is capable of having an interest in its own continued existence.

An entity is not capable of having an interest in its own continued existence unless it possesses, at some time, the concept of a continuing self.

Neither fetuses nor neonates possess the concept of a continuing self.

C: Therefore:

Neither fetuses nor neonates have a right to life.

Technically this is not a personhood principle either, but like the one above more of a “when does the life of a person begin?”

Tooley holds a “desire-based” theory of rights.

Desire-based Theory of Rights

The only thing that can reasonably be said to have a “right to X” is something which has or could have a “desire for X.” The ability to desire X is a necessary condition for a right to X. On this view, the only thing that can have a “right to life” is something which could have desire for life.

But this would require the cognitive ability to conceive of oneself in the future. One must have the cognitive ware with all to conceive of oneself as “an on going subject of experience.”

Pro:

Locates the “right-to-life” issues within a broader context and not merely a specialized debate.

Gives a “Frankenstein” thought experiment tot confirm his principle.

Imagine a doctor who created a human creature out a spare body parts, but before “animating it” changed his mind and took it apart. Did the doctor do anything wrong? Tooley believes you will share his intuition that the doctor did nothing wrong because the being was never conscious. Note, this would also serve to disconfirm the Potentiality Principle and the Species Principle.

Con:

Nearly the same a the Rationality Principle. Tooley suggests a proviso so that once you acquires the right to life, one does not lose it. This ad hoc addition is meant to guard against the result that one loses one right to life should one become mentally disabled or take a nap.

6. Soul Principle

Pro:

Though much maligned, the concept of an immaterial soul actually does a lot of philosophical work (grounds personal identity, provide a source of freewill, moral agency and moral responsibility, account for the seeming unity of conscious experience despite the modular functioning of the brain, etc.)

Further it is a deeply and widely held article of faith.

Con:

Very vague term.

The very existence of such is controversial.

As a metaphysical item, its presence or absence seems undetectable. Thus is seems impossible in principle to know when a body becomes ensouled. Even people who believe in souls have disagreed about this (some say conception, others at “quickening” etc.).

7. Viability Principle

You already a have a lot on this.

My only observation is that “viability” is NOT really a quality of the fetus, but rather of our current medical technology.

It’s like when we term a disease “incurable.” That really tells you NOTHING about the disease itself, points to no property of the disease, but rather points to some property of our medical technology (in this case a limitation). Thus when I claim that a fetus is viable, I’m not really talking about the fetus.

It seems really odd to me that the we would determine what is and is not a person or what does or does not possess the right to right based on something as arbitrary as the current state of our medical technology while avoiding looking at properties of the thing in question.