ON THE MORAL AND LEGAL STATUS OF ABORTION We will be concerned with both the moral status of abortion, which for our purposes we may define as the act which a woman performs in voluntarily terminating, or allowing another person to terminate, her pregnancy, and the legal status which is appropriate for this act. I will argue that, while it is not possible to produce a satisfactory defense of a woman’s right to obtain an abortion with out showing that a fetus is not a human being, in the morally rele vant sense of that term, we ought not to conclude that the difficulties involved in determining whether or not a fetus is human make it impossible to produce any satisfactory solution to the problem of the moral status of abortion. For it is possible to show that, on the basis of intuitions which we may expect even the opponents of abor tion to share, a fetus is not a person, and hence not the sort of entity to which it is proper to ascribe full moral rights. Of course, while some philosophers would deny the possibility of any such proof,1 others will deny that there is any need for it, since the moral permissibility of abortion appears to them to be too obvious to require proof. But the inadequacy of this attitude should be evident from the fact that both the friends and the foes of abor tion consider their position to be morally self-evident. Because pro abortionists have never adequately come to grips with the conceptual issues surrounding abortion, most if not all, of the arguments which they advance in opposition to laws restricting access to abortion fail to refute or even weaken the traditional antiabortion argument, i.e., that a fetus is a human being, and therefore abortion is murder. These arguments are typically of one of two sorts. Either they point to the terrible side effects of the restrictive laws, e.g., the deaths due to illegal abortions, and the fact that it is poor women 1. For example, Roger Wertheimer, who in “Understanding the Abor tion Argument” {Philosophy and Public Affairs, 1, No. 1 [Fall, 1971], 67-95), argues that the problem of the moral status of abortion is insoluble, in that the dispute over the status of the fetus is not a question of fact at all, but only a question of how one responds to the facts.
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44 MARY ANNE WARREN who suffer the most as a result of these laws, or else they state that to deny a woman access to abortion is to deprive her of her right to control her own body. Unfortunately, however, the fact that restrict ing access to abortion has tragic side effects does not, in itself, show that the restrictions are unjustified, since murder is wrong regardless of the consequences of prohibiting it; and the appeal to the right to control one’s body, which is generally construed as a property right, is at best a rather feeble argument for the permissibility of abortion. Mere ownership does not give me the right to kill innocent people whom I find on my property, and indeed I am apt to be held re sponsible if such people injure themselves while on my property. It is equally unclear that I have any moral right to expel an innocent person from my property when I know that doing so will result in his death. Furthermore, it is probably inappropriate to describe a woman’s body as her property, since it seems natural to hold that a person is something distinct from her property, but not from her body. Even those who would object to the identification of a person with his body, or with the conjunction of his body and his mind, must admit that it would be very odd to describe, say, breaking a leg, as damag ing one’s property, and much more appropriate to describe it as in juring oneself. Thus it is probably a mistake to argue that the right to obtain an abortion is in any way derived from the right to own and regulate property. But however we wish to construe the right to abortion, we can not hope to convince those who consider abortion a form of murder of the existence of any such right unless we are able to produce a clear and convincing refutation of the traditional antiabortion argu ment, and this has not, to my knowledge, been done. With respect to the two most vital issues which that argument involves, i.e., the humanity of the fetus and its implication for the moral status of abortion, confusion has prevailed on both sides of the dispute. Thus, both proabortionists and antiabortionists have tended to ab stract the question of whether abortion is wrong to that of whether it is wrong to destroy a fetus, just as though the rights of another person were not necessarily involved. This mistaken abstraction has led to the almost universal assumption that if a fetus is a human being, with a right to life, then it follows immediately that abortion
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MORAL AND LEGAL STATUS OF ABORTION 45 is wrong (except perhaps when necessary to save the woman’s life), and that it ought to be prohibited. It has also been generally as sumed that unless the question about the status of the fetus is an swered, the moral status of abortion cannot possibly be determined. Two recent papers, one by B. A. Brody,2 and one by Judith Thomson,3 have attempted to settle the question of whether abor tion ought to be prohibited apart from the question of whether or not the fetus is human. Brody examines the possibility that the fol lowing two statements are compatible: (1) that abortion is the tak ing of innocent human life, and therefore wrong; and (2) that nevertheless it ought not to be prohibited by law, at least under the present circumstances.4 Not surprisingly, Brody finds it impossible to reconcile these two statements, since, as he rightly argues, none of the unfortunate side effects of the prohibition of abortion is bad enough to justify legalizing the wrongful taking of human life. He is mistaken, however, in concluding that the incompatibility of (1) and (2), in itself, shows that “the legal problem about abor tion cannot be resolved independently of the status of the fetus problem” (p. 369). What Brody fails to realize is that ( 1 ) embodies the questionable assumption that if a fetus is a human being, then of course abortion is morally wrong, and that an attack on this assumption is more promising, as a way of reconciling the humanity of the fetus with the claim that laws prohibiting abortion are unjustified, than is an attack on the assumption that if abortion is the wrongful killing of innocent human beings then it ought to be prohibited. He thus overlooks the possibility that a fetus may have a right to life and abortion still be morally permissible, in that the right of a woman to terminate an unwanted pregnancy might override the right of the fetus to be kept alive. The immorality of abortion is no more demon strated by the humanity of the fetus, in itself, than the immorality of killing in self-defense is demonstrated by the fact that the as 2. . A. Brody, “Abortion and the Law,” The Journal of Philosophy, 68, No. 12 (June 17, 1971), 357-69. 3. Judith Thomson, “A Defense of Abortion,” Philosophy and Public Affairs, 1, No. 1 (Fall, 1971), 47-66. 4. I have abbreviated these statements somewhat, but not in a way which affects the argument.
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46 MARY ANNE WARREN sailant is a human being. Neither is it demonstrated by the innocence of the fetus, since there may be situations in which the killing of innocent human beings is justified. It is perhaps not surprising that Brody fails to spot this assump tion, since it has been accepted with little or no argument by nearly everyone who has written on the morality of abortion. John Noonan is correct in saying that “the fundamental question in the long his tory of abortion is, How do you determine the humanity of a being?” 5 He summarizes his own antiabortion argument, which is a version of the official position of the Catholic Church, as follows: … it is wrong to kill humans, however poor, weak, defenseless, and lacking in opportunity to develop their potential they may be. It is therefore morally wrong to kill Biafrans. Similarly, it is morally wrong to kill embryos.6 Noonan bases his claim that fetuses are human upon what he calls the theologians’ criterion of humanity: that whoever is conceived of human beings is human. But although he argues at length for the appropriateness of this criterion, he never questions the assump tion that if a fetus is human then abortion is wrong for exactly the same reason that murder is wrong. Judith Thomson is, in fact, the only writer I am aware of who has seriously questioned this assumption; she has argued that, even if we grant the antiabortionist his claim that a fetus is a human being, with the same right to life as any other human being, we can still demonstrate that, in at least some and perhaps most cases, a woman is under no moral obligation to complete an unwanted pregnancy.7 Her argument is worth examining, since if it holds up it may enable us to establish the moral permissibility of abortion without becoming involved in problems about what entitles an entity to be considered human, and accorded full moral rights. To be able to do this would be a great gain in the power and simplicity of the proabortion position, since, although I will argue that these problems can be solved at least as decisively as can any other moral problem, 5. John Noonan, “Abortion and the Catholic Church: A Summary His tory,” Natural Law Vor urn, 12 (1967), 125. 6. John Noonan, “Deciding Who is Human,” Natural Law Forum, 13 (1968), 134. 7. “A Defense of Abortion.”
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