PHILOSOPHICAL EGGS

When I teach the abortion issue in ethics class I usually establish a threefold theoretical structure that is well-received by philosophers and presented clearly in the Internet Encyclopedia of Philosophy’s (IEP) entry “Abortion“. It goes like this:

(1) There is the extreme conservative view which claims that “human personhood begins from the unicellular zygote and thus – according to the religious stance – one should not have an abortion by virtue of the imago dei [image of God] of the human being…To have an abortion would be, by definition, homicide.”

(2) There is the extreme liberal view which claims that “human personhood begins immediately after birth or a bit later.”

(3) There is the moderate view which claims that “there is a morally relevant break in the biological process of development – from the unicellular zygote to birth – which determines the justifiability and non-justifiability of having an abortion. According to them, there is a gradual process from being a fetus to being an infant where the fetus is not a human being but a human offspring with a different moral status.” Some candidates for a morally relevant moment in the process of fetal development are detectable brain waves, heart beat, viability (the ability of the fetus to survive outside the uterus), and quickening (when the pregnant person starts to feel the fetus move).

Of course, issues about the nature of potential, personhood, humanity, the methods of abortion, and the law need to be addressed when dealing with the abortion issue. But this threefold framework can help people get their bearings on the issue, pick a general orientation, and then, perhaps, develop some subtle distinctions, exceptions, and so on. For example, one might embrace the extreme conservative view but assert that, despite the fact that the fetus is human and a potential person with moral and rational capacities, abortions should be moral and legal if rape or incest – things that are sometimes referred to as first-order reasons to abort rather than second-order reasons such as work demands – are in the picture. Or, one might be sympathetic to the extreme liberal view but pull back from its position that abortions should be allowed up until birth or shortly thereafter. For example, one might argue that partial birth abortions are immoral and agree with many that all forms of infanticide, even the kinds that flow from the realization that an infant has some terrible disease, are unacceptable. Finally, one might be a moderate but end up in all kinds of arguments with other moderates about the which stage of fetal development is morally relevant. So the point is that this three-fold guide is just that: a guide. It helps establish a helpful framework that needs to be fleshed out with a lot of thinking and considerations of the complexities of the issue.

Over the years I have found that, as I flesh out the options with students, most of the nuances and positions that emerge are readily understandable and even familiar on some level. Students often express that they are getting some words and concepts to better express things they already thought. But there is an interpretation of the extreme conservative view that strikes most students as completely new which can be put succinctly as follows:

Abortion anytime after the moment of conception is morally wrong, is indeed murder, but nonetheless shouldn’t be illegal and those who have abortions shouldn’t be punished.

This is quite startling since most of us have an unexamined assumption, one that runs very deep, that if an act is murder then not only is that act immoral but it must be illegal and must receive the most extreme or among the most extreme legal punishments available. But is this assumption true?

Catholic philosopher and classicist Peter Simpson, professor emeritus at City University of New York, doesn’t think so and expresses why in the last two paragraphs of his book Political Illiberalism: A Defense of Freedom (Routledge, 2015). At this point in the book he has examined various reasons offered to justify abortion and claims they fail. He concludes this analysis as follows:

“Abortion, as already argued, is murder and so unjust. There can, therefore, be no right to abortion, and no woman’s right to life or choice can give her such a right. Thus there can be no trumping of rights here of the sort the example claims. The objections, therefore, have clear answers and the case against the morality of abortion can thus be seen to stand un-refuted.”

But then he turns to the question of legality and it is here we see an interesting yet controversial option come into view:

“There remains the question of legality, which, in the case of abortion, raises special questions. For abortion, although it is murder, is a murder of a unique kind. The one murdered is not an individual extrinsic to the mother but an individual existing within her and depending on her. To bear new life within one’s own body is a special privilege that brings with it many joys. But it also brings with it many difficulties and dangers, emotional and physical. These difficulties can sometimes reach extreme levels, especially if the child is defective in some way, or if the mother’s health is seriously affected, or especially if the mother is not receiving support from the father or is even being pressured by the father and other relatives and friends to abort the child. In these kinds of conditions it seems harsh or even inhuman to apply to abortion the same legal penalties as are applied to other murders. Better in this sort of case to apply the principle of subsidiarity and leave the matter within the hands of the woman and her family and friends and not involve any laws of the larger community at all. Or if laws are applied they should be laws that govern the abortion procedure and ensure that the procedure, if it is carried out, is carried out in as safe a way as possible and with full explanation to the mother and relatives of all the risks involved. These risks will have to include especially those relating to the longer term effects of abortion, as in particular what is now called post-abortion syndrome, where mothers who have aborted children suffer intense psychological distress and guilt. This proposed absence of laws against abortion (and also of laws permitting abortion) will not entail any change or diminution in the claim and argument that abortion is a grave moral wrong. The moral case against abortion can and will remain as strong as before, and can still be publicly taught. The only difference will be that no laws are passed or enforced against this moral wrong. Family and friends alone, including if need be professionals of various sorts, will, according to the principle of subsidiarity, be the place where the question is faced and answered. Nothing further need be involved.”

So we see that one could view abortion as a grave moral evil, as murder, and nonetheless argue that there shouldn’t be legal restrictions or punishments on it because it is a murder of a very special kind full of situated complexities that simply cannot be adequately dealt with by law. Such an argument would be guided by the principle of subsidiarity which, according to the Wiki entry for subsidiarity in Catholic thought, “is an organizing principle that matters ought to be handled by the smallest, lowest or least centralized competent authority. Political decisions should be taken at a local level if possible, rather than by a central authority.” And the Oxford English Dictionary defines subsidiarity as “the idea that a central authority should have a subsidiary function, performing only those tasks which cannot be performed effectively at a more immediate or local level.” So by bringing in this principle there appears to be a way to challenge the assumption that murder must necessarily be illegal and punished to the full extent of the law.

This is interesting since it opens up a way for those who think abortion is categorically immoral to nonetheless take a position on the legality of abortion which they may have thought unavailable to them. Moreover, it gives us a way for those who are pro-choice and those who are pro-life to agree on the legality of abortion (that the law shouldn’t be involved or, if it is, should be involved to allow for an abortion to be done safely and informatively) even if they disagree on the morality of abortion. This agreement might go a long way in reducing some of the problematic consequences that come from disagreements over abortion legislation.

This is not to say, of course, that the position is convincing (although I have come to learn that many people, from Catholics to liberal atheists, find it persuasive). But I think it is an overlooked option that more people should understand and carefully consider.