Ontology, Rights, and Morality: The case for and Against Abortion

On both sides of the debate surrounding abortion, we find the conviction that human lives are at stake: those of the unborn, and those of women who may not wish to bear children. The debate involves not only matters of rights and values, but also the very definition of life itself, fundamental questions of life and death.
In filmmaker Tony Kaye’s documentary “Lake of Fire,” both defenders and opponents of abortion assert the rectitude of their views, and the iniquitousness of rival, differing views. On each side of the debate we hear the contention that the other side, through dulled or distorted moral sensibilities, denies a certain fundamental truth and moral fact, and is incapable of understanding the dire consequences of their position. And so, on each side of the debate, people assert the impossibility of “carrying a legitimate conversation with these people.” But the film, shot in black and white, ultimately undercuts black-and-white, polarized positions; instead, both image and content are depicted in shades of gray. As lawyer and political commentator Alan Dershowitz is filmed saying, in a sense, “everybody is right.”
The debate regarding abortion is further polarized by the linguistic terms employed by each side, as defenders and opponents define and characterize their positions; the language framing the debate is laden with moral implications, and it is difficult to find neutral terms. How are we to refer to the entity produced when a sperm penetrates an ovum? Are we to call it a “fetus” or a “developing baby”? In “Lake of Fire” we hear this entity referred to as both an “unborn child” and as a “tiny puddle of flesh.” Implicit within these terms are assumptions regarding the ontological status of the fetus/baby, assumptions regarding the very meaning of personhood and the characteristics that confer moral value and thus rights. And although on both sides of the debate we hear the terms “human life” and “human being” employed as if they were synonymous and interchangeable, in a later section, this paper will address the moral and philosophical distinction between the two terms.
And how are we to refer to the woman whose body houses this entity, this fetus/baby? To call her either a “pregnant woman” or to call her a “mother” is to imply something about the nature of her relationship with the being inside of her. Traditionally, opponents of abortion are identified as “pro-life.” Implicit within that identification is the view that those who are not pro-life are in some manner anti-life. And defenders of the right to abortion, identified as “pro-choice,” are referred to by opponents as “pro-abortion” even if they view abortion as a regrettable and morally-problematic solution of last resort.

Overview of paper to follow:

This paper will begin with a brief discussion regarding the legality of abortion, arguing that even if we view abortion as immoral, there may nonetheless be compelling reasons to maintain its availability as a medical procedure. A belief that an action or practice is immoral does not in itself imply that it ought to be illegal. Conclusions regarding the ontological status of the fetus, however, will determine whether we view abortion as a self-regarding action or one that inflicts harm upon an agent whose rights must be legally protected.
Attention will then turn to the matter of rights. We are prone to assume that by virtue of being human we are endowed with certain natural rights such as the unconditional right to life and unimpeded liberty. It is not self-evident, however, what exactly the right to life entails. Neither is it clear whether the fetus is even a being in possession of any rights, or what kind of being it is.
In evaluating what type of being the fetus is, biology and philosophy converge. We can examine fetal development, the biological stages of gestation, but how are we to understand their philosophical significance? What is the ontological significance of certain acquired and developed traits and capacities? In examining fetal development, it is difficult to demonstrate that any distinctions are non-arbitrary.
The arguments concerning abortion, both in defense and in opposition, can be classified by their ontological orientation: those for which the status of the fetus is relevant and those for which it is irrelevant. In endeavoring to evaluate and understand the ontological status of the fetus, we must ask what it means to be a person or human being. All such personhood theories, though, are problematic and perhaps dangerous. And so, in consideration of the problematic and potentially dangerous nature of any definition of personhood, how may argument proceed if we were to set aside any concern for what kind of being the fetus may or may not be? Setting aside ontological considerations does not in itself engender conclusions regarding the moral character of abortion. Without recourse to the status of the fetus, Judith Jarvis Thomson, in her article, “A defense of Abortion” (MacKinnon 175-185) has defended abortion, while Don Marquis, in his article “Why Abortion is Immoral” (MacKinnon 186-194) has opposed it. Fetal ontology is similarly irrelevant in utilitarian reasoning.
In addressing the contention that these questions are impossible to answer in the abstract, or that the specific costs and benefits of each abortion must be individually considered, I will conclude this essay with an exploration of the concerns and values pertinent to my own case, offering my own understanding and evaluation of potential options.

What is the relationship between legality and morality?

Much of the debate surrounding abortion is focused on its legality, on whether the fetus is a being deserving of legal protection. In a later section of this paper I will discuss the ontological status of the fetus and the implications that its status may have for meriting legislative and judicial protection. This section, however, will consider legality somewhat divorced from morality.
If abortion is morally permissible, it thus follows that it ought to be legal. But the converse is not valid: even if abortion is immoral, there may nonetheless be a strong argument for its legality. Contrary to what Jeremy Bentham believed (MacKinnon 50), the principles governing personal morality are not necessarily the same as those which ought to be codified as laws governing social conduct. There may be valid and compelling reasons why an immoral act ought not be prohibited by law.
Although Bentham, a utilitarian, believed that codified laws ought to coincide with personal morality, the somewhat utilitarian approach to public policy outlined by the philosophy of “harm reduction” seeks to reduce the harmful effects of possibly immoral behaviors rather than to prohibit them. As an approach to legislation and social policy, harm reduction acknowledges that the risks attendant to certain behaviors do not in themselves deter people from engaging in those behaviors. Though perhaps these behaviors are immoral, their prohibition would increase attendant risks. Thus, rather than focusing upon prohibition of and punishment for these behaviors, policy ought rather to minimize attendant risks. As philosopher Hugo Adam Bedau wrote, “the conduct in question… although it is harmful, it must be permitted because it cannot be prevented” (MacKinnon, 315).
Legality, as formally-encoded morality, concerns both the private, individual acts with determinant public repercussions, and the public, common good and communal welfare. It considers public consequences of individual actions that harm directly (through infringement upon another agent’s liberties) or else cause indirect harm by undermining the stability of a society.
The pragmatic application of harm reduction may assume many forms. We may believe that drug use is immoral, but by legalizing needle exchanges we may reduce the transmission of blood-born diseases. We may believe that sex outside of marriage is immoral, but by freely providing condoms and other contraception we may reduce the incidence of sexually-transmitted diseases and unwanted pregnancies. We may believe that abortion is immoral, but by allowing for its legal practice we may reduce the risks of infection, hemorrhaging, physical harm and death associated with abortions procured in defiance of the law. As philosopher Peter Singer states in “Lake of Fire,” some women will have abortions regardless of their legality or prohibition. Although wealthy women will be able to secure safe and sterile abortions, women with lesser financial resources will die from unsafe, illegal abortions.
But the harm reduction philosophy that supports needle exchanges and the distribution of condoms and other contraception may not be directly applicable to abortion; its pertinence and relevance will depend upon conclusions regarding the ontological status of the fetus. That is, harm reduction is most germane and appropriate in consideration of actions that result only in harm to self, the so-called “victimless crimes” of self-regarding actions rather than those actions which result in harm to others. If we consider the fetus to be ontologically a human being, a harm reduction approach would be akin to acknowledging that despite all preventative efforts, homicides will nonetheless occur, and so, in consideration of that, we ought to provide would-be murderers with a legal means of killing their victims with as little suffering as possible.
Thus, despite efforts to demonstrate that the immoral need not be illegal, the later discussion of the ontological status of the fetus will carry implications for the legal status of the fetus and any rights it may or may not merit and warrant. Although concerns regarding the philosophy of law, the purpose and intent of legislation, are external to the scope of this paper, it may be said that a salient legislative principle involves protecting the rights of those who cannot protect themselves, shielding the weak from the strong.

What are rights, and what happens when they conflict?

We are inclined to assume that by virtue of being human we are endowed with certain rights not claimed or possessed by nonhuman animals. We profess the unconditional and inalienable right to life, avowing the intrinsic value of human life as such, but as the later discussion of personhood theory will illustrate, it is not clear whether we possess these rights by virtue of being a biological member of the human species, or by virtue of certain requisite qualities and characteristics.
Our natural rights are those upon which we have a valid claim by virtue of being human, and include all that which is necessary and essential for us to function well as human beings. In regard to abortion, natural law theory may consider it to be a woman’s natural, physiologically-based function to bear children, a process with which one ought not interfere. But to paraphrase David Hume, we cannot derive an “ought” from a “can.” That is, the fact that a woman can bear children does not imply that she must or ought to. To contend otherwise would be to grant her only what Kant called “use value,” (MacKinnon 73), as little more than a biological tool with only instrumental value, void of the autonomy and volitionality with which Kant characterizes persons as such.
But what happens when natural rights conflict? Natural rights theory may italicize the fetus’s right to life. Or, alternately, it might focus upon the human fulfillment and flourishing of a pregnant woman who may not wish to bear a child. If we are to consider the fetus as a being with rights, its natural right to life conflicts with the pregnant woman’s right to liberty. Pregnant women have a right to generally unfettered and unimpeded liberty, what John Locke calls the “perfect freedom to order their actions, and dispose of their… persons as they think fit” (MacKinnon 104). But depending upon our conclusions regarding the ontological status of the fetus, a pregnant woman may be, as Locke also wrote, “restrained from invading” the fetus’ rights, and “from doing hurt” to it (MacKinnon 105). That is, the pregnant woman’s right to liberty does not extend to any action that may cause harm to another person.
What natural law and natural rights theory seems to overlook is that we cannot know nature as such, but rather can know it only as we interpret it, as it is mediated through our human minds, as we contort its form to validate our already formulated conclusions. This is a problematic aspect of natural law theory that could be understood through Kant’s epistemology (MacKinnon 73). To Kant, we do not passively perceive the world as it is, the world as such. Rather, through our faculty of understanding we construct its character, our minds structuring our experience. Thus, rather than constituting anything in itself, conceptions of natural law are more akin to Rorschach inkblots, nondescript patterns upon which the perceiver projects his already formulated conceptions and constructions.
The same problem adheres to religiously-based morality insofar as religious principles are used to analyze social problems. A bare belief in the divine does not by itself determine answers to moral questions; God’s will and word are not directly apprehendable, unmediated by human interpretation, but rather are interpreted through human, and thus fallible, minds. Religiously-based morality can be employed to justify brutality as easily as it can engender mercy and compassion. And so, in consideration of the epistemological vagueness of the knowledge inhered in religiously-based constructions, this paper, will not consider religious opposition to abortion.
Opponents to abortion devote much effort to establishing that the fetus is a human being and thus ought to be afforded rights (i.e. the right to life). From establishing this premise, though, they seem to assume it to be simple and self-evident that the fetus’s right to life is a moral claim far stronger than a woman’s claim to bodily autonomy, as if the truth of their conclusions were evident within their premises.
Moral problems are often characterized by the conflict of competing interests and rights as well as the clashing of value systems. The morality of abortion is characterized by a conflict between the fetus’s presumed right to life and the pregnant woman’s right to reproductive freedom and governance over her own body. Just as the right to life is fundamental to the enjoyment of all other rights, so too is the right of reproductive control necessary and critical for a woman to enjoy other rights. In unwanted pregnancies, these rights perhaps conflict.
Linguist and philosopher Noam Chomsky, as filmed in “Lake of Fire,” addresses the conflict of values involved in moral problems. Values are not absolute, but rather contingent and often conflicting. We value both the right to life and the right to bodily autonomy. In isolation, Chomsky says, each of these values are legitimate. We must ask, however, what each value means under particular, individual conditions as we either actualize or defy those values.
The fetus, by its nature, exists within a woman’s body. Its fate is inextricably connected to and dependent upon her. Regardless of any conclusion regarding its ontological status, the fetus is more than a mere part of her body, akin to a superfluous organ, on account of its independent genetic makeup, its progressive development, and other factors clearly distinguishing it from the mother’s body. Thus, the standards applicable to one’s exercise of bodily rights may not be directly applicable.
To Judith Jarvis Thomson, even if we grant the fundamental assumption that the fetus is a person with the right to life, this right is overridden by a woman’s right to bodily autonomy. The fetus exerts no moral claim upon the pregnant woman; rather, the woman must volitionally consent to allow the fetus to inhabit her body as it depends upon her body for its life and survival. Thomson allows that some reasons for granting or revoking consent are morally suspect or trivial such that an abortion is performed not to avert tragedy, but rather to avert inconvenience, which reasons are petty rather than persuasive.

What does the right to life entail or not?

Natural rights language preanalytically assumes that all human life is endowed with an inalienable right to continuation and preservation unobstructed and unimpeded by any other agent. But this “right to life” is far from simple. As Thomson argues, the right to life does not entail a right to whatsoever one might need in order to continue living. Thus, that the fetus may have a right to life does not directly imply that it is morally incumbent upon the pregnant woman to do whatever is necessary to sustain and nourish that life. Within this reasoning, abortion is thus morally permissible even if, for the sake of argument, the fetus is granted full personhood status and rights.
In what does the right to life consist? The provision of that which is required for survival? Is it ever possible that one has no right, no claim, to that which is needed for survival? In Thomsons’ reasoning, no one, fetus or adult human, possesses an inalienable right to the use of another person’s body for necessary vital sustenance and physical survival. One may consent to have one’s body used in such a manner (and consent, once granted, may be revoked), but under no condition is it morally incumbent upon a person to consent to such an arrangement. Thus, the right to life is problematic; one’s right to life does not grant one the right to utilize and depend upon the unconsenting body of another person.
Through a clever thought experiment, Thomson demonstrates the complex and morally-problematic nature of the too-often unquestioned right to life: An ailing violinist has a fatal kidney disease. The Society of Music Lovers, after much research, has determined that you alone have the blood type needed to help him. In order to save the violinist, they kidnap you and, while you are unconscious, connect his circulatory system to yours such that your kidneys may extract the poisons from his blood. You awake in bed beside this violinist, your body connected to his. To disconnect yourself from the violinist would be to kill him. You are told that he needs the use of your kidneys for nine months, and that after that time he will have recovered from his ailment and become capable of resuming independent existence.
Are you morally required to permit this situation? Surely it would be quite generous and altruistic if you were to accede, but must you? Surely the violinist, like all other human beings, has the right to life. Given that he depends upon your body for his survival, does he thus possess a moral claim to the use of your body? Even though the violinist’s survival depends upon the continued use of your body, he has no right to its use. Thus, the fact that one may need something in order to survive does not in itself grant one the right to it. And so, the right to life appears both morally and pragmatically problematic.
In a second thought experiment, Thomson demonstrates that the fact that one’s life depends upon something does not in itself grant one a right to it. Suppose that you are fatally ill and can only survive your ailment through the touch of a famous actor. Even though your survival depends upon his touch, do you have a right to his touch? Surely it would be generous and altruistic if this actor were to fly in from Hollywood to provide you with his touch, but is it morally incumbent upon him to do so? Do you have the right to his touch? In the Kantian sense, you cannot require the use of another person as a means to an end, even if that end is one of survival.
Through these analogies, Thomson argues that the right to life does not imply a right to whatsoever one might need to live. Specifically, the right to life does not imply the right to compulsory use of another person’s body. It is no injustice to deprive a person of life through prohibiting that person’s continued use of your body. Thus, since the right to life is problematic, abortion cannot be prohibited solely upon the grounds of a fetus’s right to life.

Do rights depend upon how easy it is to grant them?

Implicit within some views regarding abortion are assumptions regarding how easy or arduous it may be for a pregnant woman to continue a pregnancy through its natural duration. What relevance, if any, does the ease by which something may be provided to a person, grant that person a right to it? We may be inclined to believe that rights ought not depend upon how easily they can be granted. Rights, unlike privileges, ought not be revoked out of convenience. To Thomson, ease of provision is irrelevant; it is morally objectionable to define and demarcate rights in terms of the ease by which those rights may be afforded.
In Thomson’s reasoning, our determination of moral duty ought not depend upon the ease by which that duty can be accomplished. Thus, if we believe it to be our duty to permit the violinist use of our kidneys, it ought not matter if he needs nine months or the remainder of our lives. Similarly, if we believe that it is not in fact our duty to sustain the ailing violinist for nine months, it does not become any more our duty when he needs them only for an hour. (Thomson does, however, allow that not granting the hour needed to save a life, though not morally unjust, would be morally indecent.)
Thomson reiterates this argument through altering her analogy regarding the need of an actor’s touch. Recall that even though your life depends upon feeling this actor’s touch, you have no right to it, though it would be quite generous and altruistic should he choose to fly in from Hollywood to provide you with his touch, it is not morally incumbent upon him to do so. But suppose he need not fly in from Hollywood; suppose he only needed to cross the small room in which you lay ailing. Surely it would be morally reprehensible for this actor to refuse walking five paces to save your life. But does this mean that you gain the right to his touch? Is it possible that although you have no right to claim his touch when its provision is arduous, you posses such a right when its provision is circumstantially undemanding, such that rights are contingent upon ease of provision? To Thomson this is untenable.
It is thus implied that concerns for maternal convenience ought not enter our reasoning regarding abortion. Concerns regarding how easily the pregnant woman can sustain the fetus’ life ought not enter any deliberation regarding the morality of abortion. It ought not matter whether the duration of pregnancy were one hour, an hour which would in no manner compromise the mother’s health or otherwise infringe upon her life, or whether the pregnancy lasted many years, exacting a harsh burden upon the pregnant woman.

What is the ontological status of the fetus?

Although to Thomson it is irrelevant whether the fetus is morally equivalent to an adult human being, to other philosophers, the more status, value, and rights we believe a fetus possesses, the more morally problematic abortion becomes.
Marquis describes how the preponderance of arguments regarding abortion ground its moral permissibility or impermissibility on the ontological status of the fetus, with conclusions directly following from the ontological premises that the fetus is or is not a being whose life may or may not morally be terminated.
The majority of arguments asserted in opposition to abortion depend upon the contention that from the moment of conception the fetus is itself a human being with a full measure of rights. Other arguments contend that since fetal development is a continuous process, any attempt to demarcate when the fetus crosses an imaginary ontological line and thus becomes a human being is inherently arbitrary, and in consideration of this arbitrariness, it is safer to consider the fetus to be a person from the moment of its conception.
At its most fundamental level, the debate regarding abortion concerns ontological conclusions regarding the very nature of existence and being, the kind of being we believe a fetus to be, any moral status it may have, any value, and thus any rights.
Ontology, as a branch of metaphysics, investigates the abstract nature of being and existence as well as the specific categories and groupings of beings, the properties attendant to them, and their relationships with one another. These broad classifications of “categories of being” define what is meant by the category of “person” or “human being,” identifying to what sort of entity these words refer. In inquiring into the ontological status of the fetus, we are in essence asking what it means to be human. What exactly is being aborted? Is the fetus a being, and if so, of what type?
To ask what sort of being the fetus is, is in essence to ask what it means to be a human, the very definition of personhood. Is it possible that a human life may not be a human being or person? Are there any relevant and necessary salient properties and features, attributes, and qualities that are essential in constituting the identity of the entity, as personhood theories would imply?
The debate regarding the permissibility of abortion is complicated and obscured by the interchangeable usage of terms: human life, human being, person. Whereas “human life” is a biological category, “human being” and “person” are philosophically-constructed categories. Our conception of the “human being” or “person” is in essence a philosophical construction, not a biological fact. It is a conception involving ethical judgments of what life deserves social protection and rights. Definitions of personhood are often crafted in service of a preconceived purpose regarding intended treatment of persons and nonpersons. That is, the fetus is alternately classified by defenders and opponents of abortion in manners that serve their established positions. Terms are defined in support of conclusions to endow such conclusions with analytic validity and veracity
Many defenders of abortion contend that the fetus is but a mere mass of tissue, like any other tissue in the woman’s body. In contending that the fetus is not a distinct, independent person, they endeavor to render abortion morally unproblematic. But even if we deny that the fetus is a person, we may hesitate to equate abortion with the clipping of one’s nails or the trimming of one’s hair. The fetus does indeed appear to be human well before birth, with many human characteristics and traits such as human physiology, organ systems, a heart beat, and detectable brain activity.
In many attempts to classify the ontological status of the fetus, there is a tension between the concepts of potentiality and actuality. Theories of potentiality, like that advanced by Marquis, attend not to the actual possession of salient characteristics, but rather to the capacity to develop them, thereby including the fetus within the category of persons. Theories of actuality attend to the existing, attained and developed traits characteristic of personhood such that biological membership in the species does not suffice to confer personhood status and rights. The concept of evolving value endeavors to resolve the tension between potentiality and actuality by considering both concepts together; status is conferred by both the potential to develop necessary traits, and their actualization such that as potential is increasingly actualized through the developmental process, moral value develops as well. The event of physical and cognitive development thus entails ontological development. In the theory of evolving value, a late-term fetus has greater moral value than an early term one. And a pregnant woman, who has actualized more of her potential than has even a late-term fetus (or a newborn, for that matter), has greater moral value than a fetus.
Do we value human life, conferring upon it moral worth, on account of its bare biological composition, or on account of attendant potential and actualized psychological characteristics? If we value the former, we must ask why a biological category has any moral relevancy. If we value the latter, we must ask which traits suffice to confer moral status, and why we nonetheless are inclined to value human life that has yet to develop these traits (newborns) or life that is incapable of such development (the severely mentally retarded).
Arguments that endeavor to definitively demarcate the beginning of humanity are philosophical, not biological, distinctions with attendant moral implications. Biological development is well-documented. There is no debate regarding the gestational facts of fetal development; rather, the debate surrounds the meaning we ascribe to that development.

What are the biological stages of fetal development, and what is their significance?

Is there a definite point on the continuum of growth and development at which a non-person becomes a person? If so, what characteristics are ontologically salient, conferring value, and sufficing to grant personhood status, and thus perhaps rights? At what point in the biological development of the fetus do characteristics emerge that endow the fetus with significant moral status, value, and thus perhaps rights? This inquiry involves the definition not of “human life” but rather of a “human being.” That is, although at fertilization, there is unique human DNA and cell division, and thus human life, it is possible (depending upon the stringency of the personhood theory employed) that this human life is not yet a human person.
Fetal development is a continuum within which all attempts to identify distinct stages, or to create biological and ontological divisions, are inherently problematic. Distinctions involve the observation and recognition of different conditions and qualities, identifying certain salient characteristics and classifying in accordance with these prominent features. Divisions involve a cleaving, a partitioning that disunites and disjoins a whole, setting apart some aspect as fundamentally distinct. In terms of fetal development, the former is valid and the latter is not. Although we may demarcate points on the developmental continuum and ascribe moral significance to them, we can draw no non-arbitrary divisions that definitively distinguish one stage or form from another.
It is difficult to definitively demarcate exactly when a fetus develops any ontologically-salient characteristic. But more importantly, we may question the entire endeavor of basing moral status (and thus rights) upon certain acquired characteristics.
Many attempts to base moral status upon acquired characteristics concentrate upon the progression of fetal development, examining significant stages in the developmental progression, asking what is present at a given point in time, and why such presence ought or ought not carry any significance. The problematic aspect of this endeavor resides not in extant knowledge of the biological development of life, but rather in the labels and consequent moral implications that we append to any developmental changes that are deemed significant for the acquisition of moral status.
Conception occurs when the sperm penetrates the ovum and creates a single cell with full, unique human genetic material. Many opponents of abortion contend that a human being is created at this moment, and that no other point in this being’s continuous development is as ontologically significant. Philosophically-based criticisms contend, however, that the mere presence of this bare genetic makeup may suffice to constitute human life, but does not suffice to constitute a human being. Physiologically-based criticisms contend that the relevant cells lack structure and differentiation, and psychologically-based theories contend that relevant cognitive capacities are lacking.
Another potentially significant point in fetal development is when brain waves become detectable. With cerebral development, there is sentience, the capacity to experience the physical sensation of pain, and perhaps the foundation of developing consciousness. Since the termination of cerebral functioning is the criterion most commonly used to determine the end of life, perhaps in a parallel manner its emergence ought to determine the beginning of life. The development of cerebral activity, however, is a gradual process, with no unique, single point on this continuum possible to identify; detection is more of an approximation than it is a precise determination. And even once detected, extant cerebral activity is not an all-or-nothing capacity. That is, there are many different brain functions, ranging from the most primitive to the most highly organized and complex. It is thus possible that early cerebral activity is akin in structure and function to that of nonhuman animals, rather than conferring a distinctively human consciousness.
The developmental point of “quickening,” when the pregnant woman can sense the fetus’s self-initiated movement, has more emotional salience than it does biological or philosophical relevance. Self-initiated movement does not suffice to constitute a person since that capacity is shared by both plant life and nonhuman animals.
The point of viability is the most biologically and philosophically problematic for those who defend the right to abortion throughout the entire span of a pregnancy. Viability occurs when the fetus has achieved sufficient development in organ systems to become capable of existence separate from its mother. “Separate,” however, does not imply independent, as the resulting child would still be highly dependent upon caretakers and perhaps medical technology as well. Some of the problematic aspects of defining the point of fetal viability are pragmatic in character. That is, viability is a function of the pregnant woman’s nutrition, socioeconomic status, the fetus’ race and gender, and the availability of advanced medical technology needed to sustain increasingly premature babies. Viability, though, represents the point at which the mother may extract herself from her connection to the fetus without engendering its death. As we will see, this point is quite salient in Thomson’s article in defense of abortion.
Marquis addresses views regarding when, if ever, the fetus becomes a person, viewing all such distinctions and qualifications for personhood as morally and pragmatically problematic. He describes the arbitrariness inherent in any attempt to define what a “human being” or “human person” may be. Development is a continuous process, and no distinctions or classifications into stages are non-arbitrary. There are problematic aspects to using any such distinction or classification to confer personhood status.
And if personhood status is not a direct corollary of biology, but rather a consequence of certain mental qualities such as our cognitive capacity for self-awareness, reasoning, and communication, is it thus possible for non-fetuses who lack these capacities (infants, the severely retarded) to be non-persons?

What does it mean to be a human being or a person?

To Marquis, the definitions of personhood advanced by both defenders and opponents of abortion are fundamentally flawed. In defense of abortion, the pro-choice movement advances too narrow a definition of personhood in an attempt to exclude fetuses; in opposition to abortion, the pro-life movement advances a too broad definition of personhood in an attempt to include fetuses. Neither is acceptable.
Most arguments that endeavor to define humanity are undertaken for a preconceived purpose, essentially shaping the definitions of terms to support intended, already formulated conclusions. Thus, these definitions are not only descriptive in character, but also carry normative implications for action.
The narrow, overly exclusive definition of personhood put forth by defenders of abortion rights is so restrictive as to omit the fetus. They define personhood in terms of acquired and developed psychological characteristics and capacities such as the ability to reason, to communicate, to be self-aware, reflective, and self-conscious. This definition is challenged to demonstrate why any value or rights are afforded to infants and the mentally retarded. Any conception of personhood that grounds moral status in acquired, developed psychological capacities is challenged to account for the moral status of newborns, infants, and the severely retarded. To meet this challenge, certain ad hoc accounts must be created to explain the wrongness of killing whosoever may be formally excluded by the formal stringency of their criteria.
In defense of their broad, inclusive definition of personhood, to justify extending full personhood status and rights to all beings with full human genetic material, abortion opponents evoke the “slippery slope” argument, warning that to ground moral status and human rights in any characteristic other than biological humanity is a slippery slope of socially-dangerous and morally-precarious exclusionary criteria. They argue that a failure to protect fetal life would result in a degradation of social protection for other non-fetal life, the lives of those at the margins of society, the disabled, the “socially undesirables.” They argue that a failure to extend full protection to all who are biologically human, or to define personhood as anything other than the possession of human genetic material (that is, to make “person” and “human being” synonymous with “human life”), would be to slide down a precarious, slippery slope in which none of us are immune. They contend that if we fail to extend full personhood status and rights to all members of the species, we all thereby assume the risk that our own personhood status and rights could be arbitrarily and capriciously revoked.
In defense of this dramatic argument, abortion opponents point to the history of socially-constructed definitions of personhood. They remind us how African-Americans were viewed as property and denied their right to liberty. They remind us how women were viewed as cognitively inferior and denied the right to suffrage. They contend that the moral advancement of a society is characterized by increasingly expansive and encompassing definitions of personhood, by extending rights and protections, by recognizing the common humanity within those once considered not to be fully human. Thus, they assert, recognizing the humanity and personhood of the fetus would be a profound moral advancement.
Although the foundational motive behind expansive definitions of personhood is perhaps morally praiseworthy, in a sense these definitions evade the fundamental question. Implicit within the endeavor to define personhood is a question of values. That is, we are asking not only what a person is, but furthermore why personhood should confer any particular worth or value. And so, even if we are to extend personhood to all members of the human species, we are still challenged to account for why bare membership in a given species is sufficient grounds for moral worth, value, and rights.

How may arguments proceed if we are to set aside ontology?

So, in consideration of the problematic aspects of any personhood theory (Is the fetus a person? If so, at what point in its development does it become one?), what would happen if, for the sake of argument, we set aside such considerations? How can the moral character of abortion be evaluated without recourse to fetal humanity, ontological status, and rights? Setting aside these considerations does not in itself engender conclusions regarding the moral character of abortion, or otherwise endorse either side of the debate.
Arguments in which the ontological status of the fetus is irrelevant do not so much deny that the fetus is or may be a human being, but rather argue that the moral nature and character of abortion can be argued and evaluated without referencing personhood theory, ontology, and fetal rights. Thomson, who for purposes of argument assumes that from the moment of conception the fetus possesses the personhood status and rights of any adult, nonetheless contends that even if this premise is accepted, it need not logically follow that abortion is morally permissible. Marquis, however, contends that the moral impermissibility of abortion can be demonstrated without resorting to personhood theory. Both Thomson and Marquis challenge the assumption that the moral character of abortion is analytically dependent upon the ontological and moral status of the fetus. This constitutes a profound paradigm shift from the pro-life movement’s devotion to demonstrating the fetus’s humanity, and the pro-choice movement’s apparent belief that for abortion to be permissible, the fetus cannot be considered a person.

How would a utilitarian evaluate abortion?

Utilitarian reasoning is consequentialist in character as it attends to an evaluation of the potential costs and benefits of a proposed action or practice. Consequences alone determine the permissibility or impermissibility of abortion, with its moral character determined by the balance of foreseen and actual positive and negative effects. Morality is thus determined by an evaluation and comparison of the net costs (in the form of suffering and unhappiness) and benefits (in the form of happiness and pleasure).
Thus, to the utilitarian, the moral character of abortion resides neither in anything the act itself might entail, nor in the motives behind the act, but rather the actual results of the act, the actual pleasure and pain produced by it. In considering abortion, a utilitarian might consider the potential medical, psychological, financial, and social consequences for the pregnant woman. It is not clear, however, what the potential interests, if any, of the fetus entail.
How are we to measure and compare the cost of a woman’s freedom or the cost of a human life? Although utilitarian reasoning instructs us to weigh and evaluate these costs, it tells us nothing about the weight we ought to assign to each factor, or what particular balance of net utility would be affected by a particular action. Utilitarian reasoning guides us to factor into calculations of net utility an equal treatment of all persons involved, with the self holding no privileged position, but does not tell us if the fetus has any interests to be considered, only that its status as a human person or not need not alone determine conclusions.
Utilitarian reasoning is commonly criticized as being inured to the inherent value of human life, condemned for endeavoring to evaluate the costs and benefits associated with human life. It may even horrify us, offending our moral sensibilities, to argue that a life may be destroyed for the greater good, or that some lives may be less valuable than others.

How can abortion be opposed without recourse to fetal ontology?

Marquis, without recourse to the ontological status of the fetus, seeks to demonstrate that abortion is gravely immoral, akin to the murder of an adult human being by declaring that even if the fetus is not ontologically human, it shares a salient characteristic with human beings.
In arguing such, he reveals a missing premise in many pro-life arguments. From the premise that abortion is killing, they conclude that abortion is wrong, failing to include or justify the premise that killing is unconditionally wrong. Marquis both includes and substantiates that key, missing premise: why do we consider killing to be immoral? Marquis addresses abortion from a generalized, theoretical account of the inherent immorality of ending the life of a human being, the factors that make killing wrong. We assume, but rarely explore, why we believe killing an adult human being to be prima facie wrong. To Marquis, this assumption is not unproblematic.
His argument begins with the generally accepted premise that it is wrong to kill an adult human being, and then proceeds to question this premise: what is it, he asks, that accounts for the wrongness and immorality of killing a human being? Killing is wrong, he argues, not solely on account of any brutalizing effects upon the killer (who may be morally inured), nor solely on account of the loss that the victim’s loved ones would experience (since killing socially-isolated people is also wrong), but rather because killing entails the premature termination of the victim’s future and thus of “all the experiences, activities, projects, and enjoyments that would otherwise have constituted one’s future” (MacKinnon 190). We consider life and its attendant experiences to be precious and irreplaceable; if life is lost, so too is all else lost.
Regardless of whether the fetus is itself (at any point in its development) a person in possession of intrinsic moral worth, if left to develop, it will have a “future like ours” (MacKinnon 190). The standard fetus, if left to develop, has a future akin to that of an adult human being, and the possession of such a future is the feature that renders killing prima facie morally wrong. Since abortion deprives the fetus of its that future, Marquis
deduces that the ethic that renders killing an adult wrong is the same ethic that makes abortion immoral, irrespective of whether the fetus is at any time a person;
When Marquis discusses “a future like ours,” using the possessive case of “we,” who does he include within that predicate adjective (dictionary.com)? Does he claim that the entire human species has a similar future, or does he implicitly reference inclusive or exclusive personhood theories that detail what actualized human characteristics and traits render a future valuable? What of the future of those born with severe neurocognitive deficits, or those born with defects that condemn them to a foreshortened life of pain and suffering?
Marquis fails to elaborate, however, upon the specific qualities, characteristics, or traits that might render one’s future valuable. He does not discuss whether the future is unconditionally valuable throughout all vicissitudes of life, not only for those who plan achievements, accomplishments, enjoyments, and satisfactions, but perhaps even more so for those who endure despair and suffering and yet persist by retaining some hope that a coming day might bring reprieve.
In the form of a future, Marquis identifies a feature that both adults and fetuses share, and through that connection he correlates the wrongness of killing persons with the termination of fetal life. As philosopher Peter Singer’s argument demonstrates, though, it is possible that although if left to develop the fetus will become a being with a “future like ours,” its future is in actuality quite dissimilar from ours. That is, perhaps a future entails more than the likelihood of a bare, continued persistence of one’s physical body through time, but rather is an abstraction, a mental projection constituted by a conscious self-awareness of continued existence (a trait that the fetus lacks), such that the future is only valuable when we are self-consciously aware of it.
Similar to Marquis, Peter Singer, as filmed in “Lake of Fire,” inquires into the ethic that makes killing wrong, evaluating the moral considerations that constitute the wrongness of killing, yet reaches conclusions differing from those of Marquis. Like Marquis, Singer argues that we ought not preanalytically, without question, accept the premise that killing is unconditionally wrong. To Singer, it is only wrong to terminate a life when that life possesses sufficient self-awareness to be conscious that it is alive, and sufficient desire to continue living. Thus, although Singer considers the fetus to be a living member of the homo sapiens species, he does not consider it to be a being meriting social protection since it lacks the requisite psychological and cognitive capacities such as an awareness of living and a desire to continue living, the capacities which, he believes, constitute the wrongness of killing. Thus, although Marquis and Singer pursue similar lines of inquiry, the former concludes that abortion is morally wrong, and the latter concludes that it is morally permissible.
Few among us, though, would consider killing an adult human being to be unconditionally immoral. What if the killing was enacted in order to save one’s life, or to protect one’s freedom, or to otherwise promote some vital, valuable good? Marquis argues that because the fetus has a “future like ours” it thus has the right to continued life. But as Thomson demonstrates, this right to life is anything but unproblematic; it is possible that although we have the right to life, we have no right to whatsoever we may need to live out our future.
Thomson demonstrates how the abortion opponent must demonstrate not that abortion is killing, but rather that the killing is unjustified. It is widely accepted, for instance, that killing is justified if it is necessary for self-defense, to prevent severe harm to oneself or another. And so, it does not suffice to establish that for whatever reason (that the fetus is a human being, or that it has a “future like ours”) the termination of a pregnancy is morally akin to the killing of an adult human being. We must further demonstrate that such killing (if it is killing at all) is unjustified.
Regarding the justification for terminating a pregnancy, Thomson outlines conditions under which bringing about fetal death would be justified or not. On this point, she offers neither categorical moral absolution nor categorical moral condemnation for abortion as such. Rather she contends that under some circumstances the unborn person is indeed entitled to make use of its mother’s body, that depriving it of such usage would be unjust killing, and that under other circumstances, when the pregnant woman perceives the fetus to be a direct or indirect threat to her life and/or liberty, she may abort with moral justification.

How important is consent?

A gray area, an area of vague indecision, among abortion opponents involves pregnancy due to rape. Some questions arise: If opponents to abortion believe that the fetus has a right to life, why ought the right to life depend upon the manner in which one’s life was engendered? Is the right to life weakened by the manner in which the life was conceived such that children conceived against their mother’s will, or without their mother’s informed consent, have less of a right to life than do children planned and wanted by their mother?
We may say that a woman need not bear the consequences (of pregnancy) resulting from a violation of her bodily integrity, that being forced to carry the fetus to term would further traumatize her, her swelling belly an ever-present reminder of her violation. But the fetus, unlike the rapist, is not an aggressor.
Thomson’s analogy of the ailing violinist is most directly analogous to pregnancies resulting from rape. In this analogy, you were kidnapped; you did not consent to be bodily connected to this violinist. You did not bring about this circumstance through your own volition or willful act. But the applicability of this analogy in fact extends beyond pregnancies resulting from rape, as the matter of consent is much broader than we might assume at first glance.
It is evident in the case of pregnancy due to rape that the mother has not consented to allow a life to inhabit her body, to allow it use of her body for its food, shelter, and sustenance. But in what circumstance can it be said that the woman has consented to such an arrangement? And how important is consent? Thomson’s analogies imply that a pregnant woman has no duty to the fetus if she has not voluntarily and knowingly assumed that duty.
When a woman volitionally engages in sexual intercourse, knowing that pregnancy may result, has she implicitly consented to allow a life to inhabit her body such that the unborn child has a right to the use of its mother’s body if, and only if, its existence was precipitated by her voluntary, knowing, and willful action? Thomson asserts that for consent to be valid, it must be purposeful, deliberate, conscious, intentional, and planned. And consent, once granted, may be revoked.
Thomson explores the matter of consent through another series of analogies: suppose you open your window to air (suppose you have sex) and a thief enters your home (pregnancy ensues). By opening your window (having sex), you provided him (the fetus) with the means by which he could enter your home (enter your body, enter life). In this analogy, can it be said that you voluntarily or recklessly acted in a manner that allowed him to enter (allowed for the pregnancy) and are thus in some manner responsible for his presence in your home (your body)?
In another formulation of the same analogy, suppose you were aware that thieves entered through open windows (that pregnancy could ensue from unprotected sex) and so, wishing both to open your window (have sex) and to prevent thieves from entering your home (prevent pregnancy), you install bars on your windows (use contraception). But, due to a defect in the bars (the degree of fallibility in all forms of contraception), a thief nonetheless enters your home (you nonetheless become pregnant).
Can we say that by virtue of having sex, even with contraception, a woman has implicitly assumed the risk of pregnancy? The concept of “assumption of risk” is applicable to the use and failure of contraception. It involves freely assuming a risk (the risk of pregnancy) when fully informed of the hazards intrinsic within the potentially unsafe activity in which one engages (the failure rate of whatever method of contraception is used).
Consent in sexual relations is difficult to verify because consent is most often implicit rather than explicit. “Implied consent” is not specifically requested or provided, and is often inferred through inaction, seeming receptivity, or a silence that may be interpreted as a demonstration of consent. Furthermore, consent is not unproblematic, not an all-or-nothing proposition or condition, but rather represents varying points on a continuum. Even in the absence of overpowering physical force, there may be psychological forces of manipulation and coercion. A woman may “consent” to sex, for example, so that her partner will cease badgering her and finally permit some sleep. She may “consent” not from desire or passion, but rather from guilt or obligation.
Thus, as depicted in “Lake of Fire,” the manner in which some abortion opponents characterize a woman seeking an abortion as lustful, selfishly unable or unwilling to restrain her sexual impulses, unmindful of the potential consequences of her actions, is neither accurate nor valid.

What is fetal euthanasia, and how does it change the morality of abortion?

Thomson’s discussion of abortion treats fetal death as an unfortunate side-effect, a regrettable consequence of maternal withdrawal of bodily life support. Abortion thus conceptually entails separating the link between fetus and mother, rather than willing or stipulating its death. In Thomson’s argument, to seek an abortion is not to actively seek the death of the fetus. This distinction is salient as Thomson considers the chance occurrence that by some miracle the ailing violinist, after being disconnected from your body, were to survive without the aid of your kidneys. In this event, you may claim no right to otherwise affect his death through other means. Thus, in Thomson’s reasoning, in procuring an abortion, the pregnant woman is justified only in seeking to remove the fetus from her body, not to definitively ensure its death. Should it be possible to remove or extract a child from its mother’s womb without affecting its death, or if an artificial womb could sustain the fetus outside of the mother’s body, the woman has no right to ensure its death by other means. Thus, within this line of reasoning the point of fetal viability, when the fetus can survive outside of the mother’s body, assuming an existence separate from the bodily support which she has provided, becomes salient.
Thomson’s reasoning parallels that which is put forth in the discussion regarding euthanasia as both Thomson’s view regarding abortion and the debate regarding euthanasia distinguish between interventions designed to kill and those undertaken with the indirect result of death through the withdrawal of assistance. The mother’s body is akin to a form of life-support parallel to the artificial life-support provided near the other end of the life span. And like other forms of euthanasia, “fetal euthanasia” is characterized by an act that affects death which is primarily motivated by an empathic concern for the being who dies.
Whereas abortion can in general be understood as the termination of fetal life support, thereby allowing the fetus to die as a result, the aim in “fetal euthanasia” is fetal death; here fetal death is not merely foreseen, but rather the aim. The aim here is not merely to sever the link between mother and fetus, but rather to will and ensure its death such that even if technological advances developed artificial wombs that could nurture the fetus, the pregnant woman would not will that.
Under what circumstances, if any, can a pregnant woman seek and ensure the death of a fetus? These are cases in which the fetus is unwanted not on account of the pregnant woman’s medical condition or other social, psychological, and financial considerations, but rather on account of detected or predicted physiological characteristics or malformations. In these cases, fetal death may be sought out of concern for the child’s potential quality of life, or because the parents are not prepared to assume the challenge of supporting and caring for a severely disabled child.
According to Marquis’ reasoning, it is the possession of a “future like ours” that renders killing immoral. What results then, when a pregnant woman conceives of the fetus’s potential future as one of pain and suffering by reason of severe birth defects? Marquis notes that in contrast to the “consistent life ethic,” his view of the immorality of abortion does not preclude euthanasia. Thus, is it possible, within Marquis’ reasoning, that when one’s future ceases to be valuable, one’s life becomes expendable.
Certainly some degree of anguish and suffering is attendant to any life. At what point, if any, on account of congenital malformations or other afflictions, is this degree of anguish and suffering great enough to make nonexistence preferable to existence? Can we say that some people would be better off had they never been born, if they had not been forced to endure emotional and physical distress through the duration of a foreshortened life, a life of invasive and painful medical procedures and little neurocognitive development?
Opponents of this type of abortion (and perhaps the very practice of pre-screening the fetus) characterize parental concern for the potential child’s quality of life as a narcissistic desire to have the perfect child. They portray it as a slippery slope towards eugenics. They evoke a world in which few among us could not have been aborted for some reason, for some failure to meet an ideal standard: perhaps we are potentially predisposed to alcoholism, mental illness, homosexuality, being overweight, learning disability, and so forth.

What concerns would enter my own thinking regarding an abortion?

In “Lake of Fire,” Dershowitz, like the act utilitarian or the individual relativist, contends that the profoundly problematic issues, the fundamental questions, and the emotional resonance involved in the debate regarding abortion are impossible to address, let alone answer in the abstract. It is one thing to abstractly discuss fetal ontology, engage in philosophical questions regarding rights, and the meaning of personhood. It is another thing to consider what I would do if I were faced with an unwanted pregnancy. And so, in the final section of this paper, I will explore the factors influencing my own decision to abort or not in the case of an unwanted pregnancy.
Thomson describes how there are numerous actions which would be generous, altruistic, and praiseworthy, but that we are morally obligated to do. She thus allows for denial of undemanding claims to be insensitive and improper, but not unjust. Refusal may be “self-centered, callous, indecent, but not unjust” (MacKinnon 182). There are many things which we ought to do which are not morally required of us, where a refusal may not be injustice. As Thomson describes it, we are not morally required to be “Good Samaritans”, only “Minimally Decent Samaritans” (MacKinnon 182). It is not morally incumbent upon a woman to be a Good Samaritan, to sacrifice health, independence, and other concerns to sustain the life of a fetus.
But I believe that it is morally incumbent upon me to be a Good Samaritan. In guiding my actions, I appeal to moral principles not to inform me of that which is merely permissible, minimally acceptable, but rather to instruct me in the ideal as I strive toward the actualization of principled conduct. And so, in my personal reasoning and deliberation, the moral indecency (as opposed to moral impermissibility) of an abortion suffices as a deterrent.
The basic text of Alcoholics Anonymous tells alcoholics that recovery requires you “to act the Good Samaritan every day, if need be. It may mean the loss of many nights’ sleep, great interference with your pleasures, interruptions to your business…” (Alcoholics Anonymous 97) but that recovery depends upon our capacity to act altruistically. We pray daily, “thy will not mine be done,” praying that God render us a channel of His will and His peace as we set aside all self-interested and self-seeking motives, instead acting out of a concern for and devotion to the welfare of others.
My regard for morality is mainly Kantian in orientation as I seek to do that which is right even if it is not that which I desire. Morality is not derived from self-interest, not an abstract system by which any desire may be philosophically rationalized and justified, providing license, formal permission for howsoever my desires may incline me, avowing and condoning my desires. Rather, moral action is that which is done in accordance with moral duty, even if it entails a great cost to the agent. In distinguishing morality from desire and self-interest, that which I ought to do is separate from, not contingent or otherwise dependent upon my personal aspirations, goals, aims, objectives, or ambitions. For an action to be moral in character, it cannot be enacted as a means to a self-interested end, but rather must be an end in itself, enacted solely because it is right and just, guided by principles of truth, reason, and fairness. To this list of Kantian principles I would add compassion, empathy, and the desire to alleviate (or at least avoid inflicting) suffering.
Whereas personhood theories often base personal worth in acquired and developed capacities such as rationality, communication, and self-awareness, humans possess a special worth and value, an inherent dignity, not on account of these psychological traits, but rather on account of our ability to act in accordance with the principled action embodied within moral duty. My own sense of self-worth finds no validation in a state of unrestrained freedom and liberty, but rather in a state of interdependency between freedom and responsibility. Without responsibility, without duty, without any concern higher than the individual self and the self’s interests, the world is rendered meaningless and absurd. Thus, rather than constituting a system of confinements and restraints, morality is the system through which meaning can be created and apprehended.


Works Cited:
Anonymous. Alcoholics Anonymous. Fourth Ed. New York: 2001

http://dictionary.reference.com/browse/ours

Lake of Fire. Dir. Tony Kaye. DVD. Thinkfilm, Above the Sea 2008.

MacKinnon, Barbara. Ethics: Theory and Contemporary Issues. Fifth Ed. Belmont, CA: Thomson, 2007