The Abortion Conundrum, Part II

After receiving scores of e-mails on my last article, which discussed abortion, I have realized I did not make my aim in writing the piece clear, especially due to the outpouring of anger coming from many pro-choice libertarians.

Generally I try to answer every reader e-mail personally – if the reader took the time to write, I feel I ought to respond, even if briefly. I even try to be polite to my critics, unless their mail, sent to a perfect stranger who is trying his best to think his way through these problems, consists of something like "Kiss my *ss, you f*%!ing fascist moron," in which case all bets are off. But the volume for this article was just too much – I’m in the midst of writing a PhD dissertation, and can’t afford to spend a week on e-mails! Instead, I will try to clear up any confusion about what I was saying with this article, as well as offering an apology that I could not respond to all of you individually.

The surprising thing about the vituperation sent my way by some of the pro-choice readers was that I seriously was trying to acknowledge what is valid in their view. My motive was to resolve the conflict between their (quite genuine) concern with the injustice of forcing a woman to have her body used for a purpose not of her choosing, with the pro-lifers concern about taking innocent life. Perhaps my attempt is misguided – as I tell my children, when they make a mistake, "Don’t worry, I was wrong once – I remember that day very well!" – but it certainly is not the case that I am contemptuous of the rights of pregnant women. So, to those who wrote, "You have no respect for a woman’s right to control her own body," my answer is: "You are wrong, as I have a good deal of respect for that right." I am just seeking to balance properly that consideration with the principle that it is wrong to take an innocent life. In the understanding of many readers I very well might have failed to achieve a good balance, but to deny angrily that I was at least trying to do so is a knee-jerk response that displays a failure to engage my argument at all.

As I saw things, I had two insights that might help to bridge the gulf between pro-choice and pro-life libertarians. The first is that the situation of a woman who finds herself "boarded" by a child she did not plan to and does not wish to carry is analogous, in important respects, to that of a sailor who picks up a shipwrecked man at sea. Neither the woman nor the sailor is required morally to put themselves totally in the service of their unwanted "passenger," but I am convinced that they are called upon to do as much as is "reasonable" – and, of course, that is a fuzzy, but not therefore useless, concept in the situation – to bring the person who, through no choice of his own, finds his life in their hands, to safe harbor. Of course factors such as the safety of the sailor or the woman will enter into what is "reasonable" in the situation. And I acknowledged that anyone who doesn’t see the sailor as being under any obligation to offer aid to the shipwreck will find my analogy pointless – in their view, both the sailor or the pregnant woman may toss the passenger "off the ship" at their whim. The Law of the Sea today requires nearby ships to make all reasonable efforts to save seafarers in distress, which indicates that many people share my belief in the justice of such a duty, but obviously it is possible that we are all mistaken, and the critics of that view correct. Majority support for a moral stance is an indicator that the stance has at least some plausibility and generally deserves serious consideration, but of course the just resolution of a dispute cannot be decided by opinion polls, and the lonely dissenters from the consensus may turn out to be visionaries showing the route to a better social order.

The second idea motivating my previous article was that technology is rapidly making it less onerous to deliver the fetal passenger to safety. Imagine that the sailor finding a shipwreck on his deck can get his guest to port just as quickly and as easily as he can toss him back to the mercy of Poseidon’s white-maned seahorses – say, if his ship was equipped with one of those transporters from Star Trek. In that case, there would be no countervailing concerns weighing against following the fairly uncontroversial guideline that states, "It is a good thing to save the life of another person, especially if the cost to the rescuer is trivial." And what I was attempting to point out, even if I did so poorly, is that advances in medicine are moving us towards a time, not too far in the future, when it will be as easy for a woman to terminate an unwanted pregnancy by delivering her baby alive as it will be to abort it.

Once that is the situation (and it's coming!) then no argument from physical hardship for the mother, morning sickness, poverty, the risks of child birth, career problems, etc. is going to give abortion any edge at all over delivery. Drop all issues over body changes, health, dietary restrictions – the woman is presented with a choice, on the exact same day, at the exact same cost (let's say – she could probably actually get paid to deliver!), at the exact same risk, of aborting or delivering/giving up the baby. The question then is, is there any reason left to opt for the former, except, 'I just want to kill the damned thing'? I addressed the minor, nagging feeling of 'I've got a baby somewhere,' and just don't see it carrying any weight against being chopped up. And that is certainly not a 'woman's issue' – a man can often have the same feeling.

One response to my article worth addressing in some depth was sent to me by Jan Lester, a political theorist and philosopher whose views I always find to reward serious consideration, even when after I’ve examined them I have not adopted them as my own. He argues that a fetus is not entitled to the rights of a more developed human being, since it lacks the feature of the latter upon which the case for her possessing inalienable rights is grounded. To explain his position, he sent me the definition of "person"" he has written for his upcoming dictionary of libertarianism:

person  There is an important intellectual, and MORAL, sense of being a person that, intuitively, is not conceptually linked with being a human being. A human being need not be a person (if a foetus or brain-dead, for instance) and a person need not be human (any sufficiently sophisticated conscious being would qualify). But what makes a person a person in this sense, and why does it matter?

If we consider the "three worlds"of Karl Popper (1902–1994), loosely but mnemonically, 1) matter, 2) mind, 3) "MEMES" (here meaning intellectual products of the mind as encoded in matter), then we can add the relevant and anterior realm 0) the manifold: the realm of all possible ideas. Being able to enter this realm critically is an intellectual sense of being a "person’ and may be what distinguishes typical human beings from beasts. Being a person appears to involve simply achieving this critical-theoretical ability.

Jan’s demarcation line between who (or what) should and who should not be regarded, morally speaking, as a person strikes me as being at least as plausible as any alternative I’ve encountered. But there is one important matter it fails to address: time. For an entity justly to be granted the rights and burdened with the responsibilities of moral agency it surely cannot be necessary that it is capable of exercising critical intelligence at every moment of its existence. So strict a criterion would mean that it is perfectly fine to kill anyone who annoys you, just so long as you slaughter that person while he is asleep! We don’t judge an individual's entitlement to personhood based solely on her condition at the instant of judgment; rather, we look to the likelihood that she will exhibit the required degree of mental capacity at some point in the future. That is why we don’t consider it OK to dump our friends into a lake if they pass out at a party and it is inconvenient to drive them home.

And the fetus clearly possesses that qualification for personhood, since, in the normal course of things, we have every reason to believe that, at some time in the future, he or she will be able to think critically. The fact that some fetuses will never achieve that milestone appears irrelevant: some people fall asleep and never wake up, and some drunks pass out and never come to again.

However, someone who wishes to accept Jan’s definition of moral personhood and nevertheless deny that a fetus should be regarded as an individual with inviolable rights may argue that there is an additional test to apply before we accept it as a person: not only must a genuine person be likely to display critical thinking in the future, she also must have engaged in it at some point in the past. But such a requirement strikes me as an ad hoc way to write the fetus out of the story; we don’t regard the past mental development of a brain-dead man as a reason not to remove him from life support in the present.

If my suggestion is sound, and the right to be seen as a person does not rest on her past capabilities, and not solely on her present condition, but must include consideration of her probable future capabilities, then I have answered those of my critics who accused me of the absurdity of holding that a barely differentiated blastocyst is "identical" to a fully functioning, adult human. No "pro-lifer," that I am aware of, suggests that a fetus made up of a dozen cells can learn calculus, compose a sonata, or aid flood victims. It is not the present condition of the fetus they see as decisive here, but the fact that, if left to develop naturally, it will become capable of those activities.

At this point my critics may respond, "If you really think that it is future potential that is decisive in this matter, then aren’t you logically compelled also to grant every human sperm and egg personhood, and condemn any negligence in bringing as many as possible of them together as, at a minimum, negligent manslaughter?" This objection deserves careful attention from anyone who is pro-life. If it is valid, pro-lifers would have the choice of abandoning their case that abortion is unjustified killing, or launching upon a frantic and lunatic effort to make sure that every possibility of conception on the planet really does take place. The absurdity of the latter project – to the degree it succeeded, it would coat the earth with human bodies that everyone is too busy to feed or clothe, since they are out rescuing sperms, suggests that it cannot be a moral requirement, since morality properly understood does not conflict with human well-being. (Or at least the disastrous consequences of deeming every haploid cell a rights-bearing person will be telling for anyone who considers morality an essential aspect of human life, whether, as Randians do, because that just happens to be how the universe developed, or, as religious philosophers do, because God has endowed us with moral understanding.)

However, I believe that pro-lifers are not stuck with only those two, unpalatable options, because the above argument overlooks an essential difference between the case for fetal rights and the reductio ad absurdum of accepting haploid rights. I propose that the crucial difference between our applicants for personhood is that, in the typical course of nature, undisturbed by purposeful human intervention, the vast majority of sperms and many eggs will not develop into autonomous creatures, but will expire with their mission incomplete, while most fetuses will become obviously independent organisms unless human action deliberately halts that process. To launch a pair of haploids on the path to autonomy takes a conscious choice to engage in sex, by at least one of the potential parents (in the case of rape), but more usually by both of them. A man does not need to intend that almost all of his sperms will die unfruitful for them to do so; in fact, it is hard to imagine how he could prevent them from doing so. But he does need to intend the death of the fetus in persuading his partner to have an abortion. I suggest that there is a clear moral distinction between letting nature take its course and acting to stop it from doing so, and that recognizing that distinction reveals the apparently important similarity of our two cases to have been merely superficial.

In any case, my efforts here, even if they turn out to be based on some fundamental misunderstanding of the issues involved in the abortion dispute, are a honest attempt to discover neutral ground upon which the two warring factions might begin to work out a peace settlement acceptable to both sides. While I allow that I may be mistaken about the direction in which that common ground is to be found, I am convinced that the first move towards finding it is for the combatants to acknowledge that their foes are not fighting on a lark or from sheer obstinacy, but because they see that there is a moral truth at stake that is worth defending: for one side, the sanctity of life, and for the other, the autonomy of women. Both are admirable causes to embrace, and for each side to recognize the validity of the other’s concern does not represent a compromise of good with evil, but an advance in our culture’s moral discourse.