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Abortion and the Law
In this short post, I would like to look at an argument for
the quite different claim that it is immoral to legally prohibit a woman
from having an abortion. This argument is about the morality of a legal
prohibition not the morality of the action that is legally proscribed. Whether or not an act is moral or immoral may
have nothing to do with the question whether prohibiting it by law is morally
wrong. For example, although we might
think that breaking a promise or telling a lie to one’s child is morally wrong,
it would not be inconsistent to argue that it would be morally wrong to pass
legislation that prohibits parents from this kind of behavior. My abortion question makes an analogous
assumption. Although we might think that
abortion is morally wrong, this might be logically consistent with the
different claim that it would be morally wrong to legally prohibit abortion. What are the reasons that would convince us
of the latter claim?
The argument I propose to examine is relatively short. It starts with the premise that it is morally
wrong to intentionally cause harm to others. Second, laws making it a crime to abort a human fetus are
intended to force pregnant women to refrain from aborting the
fetus. Third, refraining from aborting
the fetus (maintaining a pregnancy until birth) is sometimes harmful to the pregnant woman. Therefore, laws making it a crime to abort a
fetus are morally wrong.
Let’s start with an examination of the second premise. Prior to the 1973 Supreme Court ruling
that struck down all criminal laws prohibiting abortion (Rowe v. Wade,
1973), several states in the U.S. made abortion a criminal offense. But it was the person who performed
the abortion who was criminally liable, not the woman who hired this person.
This is in stark contrast to “Murder for
Hire” laws in which the person who hires the hit man to murder the target individual is also prosecuted for the killing. If the hit man is found guilty of murder,
then so is the person who hired him, and both will usually suffer the same
punishment. But prior to 1973, no state
ever legislated anti-abortion “feticide” laws in which women who hired an
abortion doctor would be punished.[2]
The objection to the second premise is this:
if the pre-1973 state laws that made it a crime to abort a human fetus did not threaten
to punish the woman who had the abortion, then how can it be said that these laws
“forced” pregnant women from refraining from having an abortion? Surely, it might be argued, only the doctors
who might otherwise perform abortions would be forced by the threat of legal punishment
to desist. The pregnant woman who wants
to abort but decides not to do this cannot complain that she was legally forced
not to have an abortion.
The answer to this objection can be found in
the distinction between direct and indirect ways of forcing a person to do or
refrain from doing an unwanted act, e.g., the act of having an abortion. The direct method would be to target a
particular group of individuals, e.g. pregnant women, by making them liable to
punishment. This method is exemplified
by laws prohibiting self-induced abortions.[3]
The indirect method would be to target for punishment only those who offer
their services (usually, for a fee) to the defined group, e.g. doctors willing
to perform abortions. Both methods imply
the existence of a force sufficient to deter the unwanted act. Even if she knows that she will not be
punished for the act of having an abortion, the pregnant woman is nonetheless
deterred by the possible punishment of the doctor she would otherwise hire to
abort the fetus. Those doctors who are willing to perform abortions and risk severe
punishment will probably be much less skilled than other doctors. If true, this
would have the deleterious effect of putting the women who hire an abortion
doctor under a much greater risk of injury and even death.
All of this suggests several women's reasons for abortion -- either maintain the pregnancy and keep the unwanted
child; maintain the pregnancy and put the unwanted child up for adoption; travel
to and have an abortion in a foreign country that has no anti-abortion laws; or
self-induce an abortion and risk serious injury or death.
Each choice implies a significant loss of
liberty.
Thomas Hobbes defined liberty or freedom as “the absence of opposition—by opposition I mean external impediments of motion…” (Leviathan, ch. 21). The external impediments to a woman’s having an abortion are the indirect ways in which the pre-1973 laws were used to deter women to refrain from choosing abortion. In many cases, maintaining the pregnancy would put a heavy burden on single women, on married women who already have several children, on women with pre-existing conditions that would be exacerbated by continuing the pregnancy; and cause emotional strain of giving up an infant for adoption.
Even more damaging is the risk some women take of serious injury or death by attempting to self-abort or by hiring persons who are not competent to perform a safe abortion. It is in these and other indirect ways that women are harmed by the punitive threats of anti-abortion legislation, even though the legislation is directly aimed not at them but at those who perform abortions.
The third premise in the argument for
the conclusion that laws prohibiting abortion are immoral says that “refraining
from aborting the fetus (maintaining a pregnancy until birth) is sometimes harmful to the pregnant woman”. This is obvious in those cases in which
continuing the pregnancy would pose a threat to the woman’s health or to her
life.
Another interest might be that of having a child with a partner
of one’s own choosing. This interest would suffer a setback if her pregnancy is
due to rape, or if it is due to a failure of the artificial means used to
prevent pregnancy.
In each of the preceding situations, a law
prohibiting abortion would be a setback to one or more interests of the
pregnant woman and consequently, each would signify a harm.
This leaves us with the first premise (“it is always
morally wrong to intentionally cause harm to others”). This would be immediately challenged by the
counterexample of self-defense. If one person harms another in an attempt to
prevent the other from injuring or killing her, then we would say that the harm
she has caused to the other in her own defense is not only not morally
wrong, it is morally right (justified).
This objection would force a rewording of the first premise
to include the exception of self-defense.
The alternative: it is morally
wrong to intentionally cause harm to others except in cases of self-defense.
This exception does not appear to affect the soundness of
the original argument. In fact, it might
even strengthen the argument if we conceive of some abortions as an attempt of
the woman to defend her life or health from the deleterious effects of her
pregnancy. This is why many of the
pre-1973 anti-abortion laws carried a provision that excepted from illegality
those abortions necessary to save a woman’s life or to prevent serious injury
to her health.
And yet it has been argued that inserting the self-defense
provision into the anti-abortion laws was itself an immoral legislative
decision because it completely neglects the interests of the fetus in
staying alive. This interest, it might
be said, is at least as important as the interest of some biological mothers in
not maintaining its life in the womb.
Moreover, an admission that there is an interest of the
fetus in staying alive would dash the entire argument for the immorality of
anti-abortion laws. This becomes clear
when we design a new argument that speaks to the interests of the fetus instead
of the interests of the woman who bears the fetus. The new argument uses the premise: “A
decision not to abort a human fetus is usually beneficial to the fetus” ‘Beneficial’ because it protects the
interest of the fetus in staying alive, and ‘usually beneficial’ because
there are cases in which it would not be in the interest of the fetus to stay
alive, for example, the fetus suffers from serious physical or mental defects
that would make its life outside the womb painful, short or both painful and
short. Hence, we now have an argument in
which the interest of the pregnant woman in terminating her pregnancy must be
weighed against the interest of the fetus in staying alive.
The question now becomes: what interest should prevail: the interest of the fetus in staying alive or
the interest of the pregnant woman in terminating her pregnancy by abortion?
There is one powerful objection to the claims made about the
interest of the fetus in the previous paragraphs. It is this: the fetus has no
interest in staying alive because fetuses have no interests at all, Therefore,
the fetus (logically) cannot be harmed by being aborted (killed). It makes no more sense to say that the fetus
has an interest in staying alive or having a future life than it has an interest
in the color of its skin, the size of its head or the quality of the
nourishment it gets from the amniotic fluid in the womb. These might be interests of its biological
mother and father, but they are not the interests of the fetus. There is no independent interest of the fetus
(including an interest in remaining alive) to be weighed against the interest
of the pregnant woman in ending her pregnancy by aborting the fetus.[4]
This is not to deny that most pregnant women do not want to
end their pregnancy. They have an interest in sustaining and protecting the life
of the fetus they are carrying. Nor is
it to deny that many others (relatives, friends) will also have an interest in the
sustained life of the fetus now and in the future. The society into which the infant child will be born may
also have an interest in the health and life of the fetus. This is true of most
societies, especially those in which population growth is dwindling.[5] And
yet there are also societies in which it was the declared interest of the government that some fetuses should
be aborted as a means of managing population growth.[6]
Finally, none of the preceding discussion is relevant to
rights-based arguments for or against abortion, whether it is the alleged right
to life of a human fetus or the alleged abortion right of a pregnant woman to make her
own choice about whether or not to end her pregnancy. As far as I can tell, rights-based arguments
usually end in a stand-off with each declaring victory. I gladly leave these debates to others.
[1]
The most famous example of a rights-based
argument justifying some abortions was Judith Jarvis Thomson “A Defense of
Abortion,” Philosophy & Public Affairs, Vol. 1, no. 1 (Fall 1971). There have been many rebuttals. For useful critical summaries of the current
debate, see Kate Greasley, Arguments about Abortion: Personhood. Morality
and Law. Oxford Scholarship Online
2017 https://www.oxfordscholarship.com; Also: Jaworska, Agnieszka and Tannenbaum,
Julie, "The Grounds of Moral Status", The Stanford Encyclopedia of Philosophy (Spring 2018 Edition), Edward N. Zalta (ed.), https://plato.stanford.edu/archives/spr2018/entries/grounds-moral-status .
[2] Presidential
candidate (now president) Donald Trump declared in March of 2016 that there
should be some form of ‘punishment’ for women who have abortions if the
procedure is banned. However, “abortion opponents quickly protested that their
aim is never to penalize women” and Trump soon reversed course, saying only
that this should be a matter for the states to resolve. In recent years, ”state
legislatures and courts around the country have increasingly begun to
criminally penalize women for abortions…” (Atina Omara, The American Prospect, 16
June 2016. https://prospect.org/health/punishing-women-abortion/
) These laws have yet to be declared
constitutional by the U.S. Supreme Court.
[3] In
Oklahoma, “the state legislature passed a bill that would make it a crime to
perform or induce an abortion.” In Tennessee, “another woman named Anna Yocca
was charged with attempted murder for trying without success to self-induce an
abortion with a coat hanger. Prosecutors later dropped the attempted murder
charge, but said they would still pursue criminal charges against Yocca, most
likely for aggravated assault.” (Omara, op. cit.)
[4]
This objection has been challenged by those who argue that persons can have an
interest that they don’t know they have and so be harmed. Don Marquis
argues that in the abortion debate, the morally relevant interest is having a
future like ours that we value or come to value. For example, many of us are concerned about
the environment in which future generations in years to come will be born, even
though none of these people exist. If
we acknowledge the legitimacy of this interest, then (Marquis asks) why should
we not also acknowledge that the fetus in the womb has an interest now
in having a future like ours? (“Why
Abortion is Immoral,” Journal of Philosophy, 1986, vol. 86: 4, pp.
183-202). There are two responses to
this. First, Marquis is discussing the
immorality of abortion not the immorality of failing to legally prohibiting
abortions. As I mentioned at the beginning
of this article, conclusions about the former issue do not necessarily dictate
a conclusion about the latter. Second, the
fact that future generations of persons will probably have the same
interests in staying alive that we now have does not imply that they now
have these interests.
[5] Japan has had a prolonged period of low fertility, resulting in an
aging population. The dramatic aging of Japanese society is a result of
sub-replacement fertility rates and high life expectancy. This downward trend of the population is
expected to continue unless many more younger Japanese men and women marry and
have two or more more children (https://en.wikipedia.org/wiki/Aging_of_Japan ).
[6] China adopted a one-child policy in 1979 to curb a rapidly growing
population. At the time it was approximately 970 million. When introduced, the policy
mandated that Han Chinese, the ethnic majority, could only have one child.. The one-child policy was rigorously enforced
by economic rewards for compliance and sanctions (including forced abortions)
for non-compliance (https://www.britannica.com/topic/one-child-policy) . The one-child policy was superseded by a two-child policy that
became effective in 2016.
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