Abortion and Unborn Human Life, Second Edition / Edition 2

by Patrick Lee

Overview

Is it ever morally right to procure an abortion, to help procure one, or to perform one? Patrick Lee surveys the main philosophical arguments in favor of the moral permissibility of abortion and refutes them point by point. In a calm and philosophically sophisticated manner, he presents a powerful case for the pro-life position and a serious challenge to all of the main philosophical arguments on behalf of the pro-choice position. Lee's method is strictly philosophical, with special attention given to authors in the broadly analytical school of thought. He contends that what is killed in abortion is indeed an individual human being. Attempts to argue otherwise are carefully presented and criticized, as are other attempts to justify abortion morally.

Since 1996 when the first edition of Abortion and Unborn Human Life appeared, the debate about the morality of abortion has not subsided. From the standpoint of philosophy many issues have become clearer. Accordingly, Patrick Lee confirms his position that unborn human beings have an equal and inherent dignity and are subjects of basic rights from the moment of fertilization. In this second edition, Lee provides significant updates in view of recent developments.

Among the developments have been an added precision required for the argument against the gradualist position, the position that a human being only gradually comes to be; significant developments in embryology strengthening the case that at fertilization a new human individual comes to be; and further refinements to the argument that some abortions are non-intentional killing.

Lee argues that what is at stake in this debate about how to treat unborn human beings is whether we will or will not recognize the fundamental equal dignity possessed by every human being, simply by virtue of being the kind of being he or she is.

ABOUT THE AUTHOR:

Patrick Lee holds the John N. and Jamie D. McAleer Chair of Bioethics and is the director of the Institute of Bioethics at Franciscan University Steubenville. He is known nationally as a keynote speaker and author of contemporary ethics, especially on controversies regarding human life and marriage. Lee is the coauthor of Body-Self Dualism in Contemporary Ethics and Politics, and the author of numerous published articles.

PRAISE FOR THE FIRST EDITION:

"Readers looking for a succinct and narrowly defined philosophical argument against abortion will find this book appealing. It is useful as a review of the past several decades of philosophical debate on abortion, and it may help readers understand how lines get drawn in such philosophical debate."—Booklist

"A very good book on the abortion question. Lee's methods are rigorous and exact, his writing accessibly clear. This book is, therefore, an especially welcome contribution to a field of enquiry in which these two qualities are rarely found in combination."—Kevin L. Flannery, S.J., Gregorianum

Product Details

ISBN-13:	9780813217307
Publisher:	The Catholic University of America Press
Publication date:	05/19/2010
Edition description:	2nd ed.
Pages:	177
Product dimensions:	5.40(w) x 8.40(h) x 0.60(d)

Read an Excerpt

Abortion & Unborn Human Life

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By Patrick Lee

The Catholic University of America Press

Copyright © 2010 The Catholic University of America Press
All right reserved.
ISBN: 978-0-8132-1730-7

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Chapter One

Do Unborn Human Beings Become Persons after Birth?

The position examined in this chapter could be called "the no-person argument." This is the position that, while what is killed in an abortion is a human being, it is not a person and therefore abortion is not morally wrong. Since bearers of rights are called "persons," the same position could be expressed this way: the right to life is not acquired until after birth. The most developed and detailed defense of this position is by Michael Tooley, and so I will refer frequently to his work. Moreover, Tooley's arguments for this position have evolved, partly because of criticism, over a period of several years. Following this history is instructive. Nevertheless, my primary concern is not with Tooley himself but with the general position he has examined and defended in more detail than any other philosopher. In section I, I try to clarify the question whether unborn human beings are persons, and in subsequent sections, I examine the arguments for the position that they are not.

I. "Personhood" and Language

To clarify the question, I first examine what is sometimes put forward as the standard argument in favor of the position that human fetuses are persons. It is an argument based on the similarity between successive stages in the development of the fetus in the womb. Roger Wertheimer, in his 1972 article "Understanding the Abortion Argument," is frequently quoted. Summing up the so-called conservative position, that is, the position that human fetuses are persons and therefore abortion is immoral, Wertheimer writes:

But I am inclined to suppose that the conservative is right, that going back stage by stage from the infant to the zygote one will not find any differences between successive stages significant enough to bear the enormous moral burden of allowing wholesale slaughter at the earlier stage while categorically denying that permission at the next stage.

As a species of slippery slope argument, this argument has its difficulties. Opponents of this pro-life position have pointed out that the fact that differences between successive stages in the development of a being are not significant does not show that there are no significant changes at all. There may well be significant differences between non-successive stages in the development of the fetus. Thus, Donald Van De Veer writes

More concretely, what impresses many persons who are neither abortionists nor uncomfortably pregnant is that there are substantial differences between the early fetal stages ... and the neonate. Early on, the embryo is quite indeterminately formed, comparatively speaking; in the early fetal stages there is no heart or brain function and no movement of limbs. The empirical differences between what we may loosely designate as S2 or S3 [stage 2 or stage 3] and the neonate are striking.

Analogies clarify the point Van De Veer is making. The difference between sanity and insanity is significant, and yet a person can gradually become insane in such a way that the differences between any two successive changes in that person's transformation will be slight.

This point, however, only sharpens the issue. Granted, there are differences, even significant ones, between the zygote and the newborn, but are those differences morally relevant? That is, are they significant in the way the pro-abortion position needs them to be? Are these differences sufficient to ground the differential treatment accorded to newborn babies on the one hand, and embryos or fetuses, on the other hand? When we compare an embryo in very early stages of development with a newborn infant, the differences are marked; yet, there are also important similarities. Van De Veer focuses on the significant differences, but one could also focus on significant similarities. For example, at all stages these beings are of the same species, have human parents, have the same genetic structure, and so on. The real question is: what differences and what similarities are morally relevant? We need a criterion which distinguishes morally relevant differences and similarities from morally irrelevant differences and similarities.

In "On the Moral and Legal Status of Abortion," Mary Anne Warren argues that the human embryo or fetus is human, in the genetic or biological sense, but is not a person. She argues that a fetus lacks those characteristics an entity must have in order to be considered a person. She lists the following as required characteristics: consciousness, reasoning, self-motivated activity, the capacity to communicate an indefinite variety of types of messages, and the presence of self-concepts. She says that to be a person an entity need not possess all of these traits, but that it must possess at least some of them. She then says that unborn human beings possess none of these traits and therefore cannot be considered persons.

As evidence for the claim that a thing must have at least some of these characteristics, however, Warren merely asserts that these characteristics belong to the concept of personhood: "Furthermore, I think that on reflection even the antiabortionists ought to agree not only that (1)–(5) are central to the concept of personhood, but also that it is a part of this concept that all and only people have full moral rights."

Of course, the claim that unborn human beings possess none of these criteria can be disputed. One could argue that human fetuses satisfy all of those criteria, in that they have the potentiality of exercising the functions referred to in those traits (that is, they have the internal resources to develop themselves to the stage where they will perform such functions). But the point I wish to make is that the claim that only things which have certain traits are full-fledged members of the moral community is a substantive moral claim. One cannot decide such an issue simply by appealing to the association of traits within a concept in our language community. For no matter what the linguistic conventions of our culture are—although I think, according to those linguistic conventions, an unborn human should be called "a person"—one could always doubt whether those conventions are morally correct. This is not to say that every argument relying on the use of the word or concept persons is unsound, but that the claim that unborn humans differ from us in such a way that they lack basic moral rights requires evidence. The argument would have to show, not only that they lack some characteristics associated with entities which have rights, but also why having those characteristics is a necessary condition for having basic moral rights. Most authors who deny the personhood of unborn human beings do not even attempt to establish this crucial step in their argument.

II. Tooley's Early Position

The leading proponent of the position that the right to life is acquired after birth is Michael Tooley. His Abortion and Infanticide is an instructive book, even though I disagree with its conclusions. As mentioned earlier, Tooley's argument has undergone some evolution. Earlier versions of his approach were published in 1972 and 1974. We will begin with the earlier and simpler version of 1972, and then observe the argument's evolution up to 1983.

Like Mary Anne Warren and most other contemporary philosophers, Tooley has always granted that the fetus is a human organism. Like Warren also, however, Tooley argues that the right to life belongs to persons, and not to every human organism. To have a right to life, he argues, a thing must have certain psychological traits.

In his 1972 article "Abortion and Infanticide," Tooley states his main argument as follows: "An organism possesses a serious right to life only if it possesses the concept of a self as a continuing subject of experiences and other mental states, and believes that it is itself such a continuing entity." He calls this the "self-consciousness requirement." Given this requirement he concludes that since fetuses and infants are not self-conscious and do not have a concept of self, they do not possess a right to life.

To support the first premise of that argument, he argues that there is a conceptual connection between possessing a right to something and having a desire for it. He argues that a right is the sort of thing that can be violated, but a violation can occur only if someone is deprived of something against his desires. Hence one cannot have a right to something unless one desires it; and one cannot desire it unless one has a concept of it. So, to have a right to one's life, one must have a concept of one's life, that is, a concept of an enduring subject of experiences and other mental states.

However, within this article Tooley finds it necessary to modify this simple argument. He notes that there seem to be exceptions to the requirement that a person must desire something in order to have a right to it. He mentions three such cases: an individual may lack a desire to continue to live, for example, because (1) he is emotionally disturbed, or (2) he is temporarily unconscious, or (3) he has been conditioned or indoctrinated not to desire to continue to live. In these types of cases, Tooley notes, most people would say there is a right to life even though there is no actual desire to continue to live.

With these cases in view, Tooley emends his position on rights as follows:

Here it will be sufficient merely to say that, in view of the above, an individual's right to X can be violated not only when he desires X, but also when he would now desire X were it not for one of the following: (i) he is in an emotionally unbalanced state; (ii) he is temporarily unconscious; (iii) he has been conditioned to desire the absence of X.

With this criterion for possession of rights, however, he is still able to conclude that fetuses do not have a right to life: "[T]he modification required in the account of the conditions under which an individual's rights can be violated does not undercut my defense of the self-consciousness requirement."

When this 1972 article was reprinted in an anthology published in 1974, Tooley added a postscript, dated June 1973, in which he modified his position further. About the same time, Tooley coauthored with Laura Purdy an article on abortion, and the same amendment appeared in that article.

In his postscript, Tooley writes that one of the modifications introduced within the 1972 article may be, or appears to be, ad hoc. He had begun in 1972 by setting out a simple argument: in order to have a right to something, one must have a desire for it. But he then found it necessary to introduce three exceptions: the emotionally unbalanced, the conditioned or indoctrinated, and the temporarily unconscious. He still accepts the exception clauses dealing with the emotionally unbalanced and the conditioned or indoctrinated, for these, he thinks, "are clearly exceptional cases." But he now thinks the exception regarding the temporarily unconscious appears ad hoc. And a critic could ask why unborn human beings and infants should not also be considered exceptions. So, he now says that a satisfactory account must make clear the "underlying rationale," that is, the underlying reason why some exceptions should be allowed while others are excluded. The problem can be solved, he says, "by setting out a slightly more subtle account of the conditions under which an individual right can be violated."

On the new account, the apparent exception of the temporarily unconscious is handled by referring, not to desires the individual would have, but to actual past or future desires. The new account is that, except for the emotionally unbalanced and those conditioned not to desire certain benefits, an action can violate an individual's right to something only by frustrating his desire for that thing, generally a present desire, but in some cases a past or future desire. Thus, the right to life of a temporarily unconscious person is based on his past desire to live. The rights of future generations, he now adds, are based on their future desires.

In the 1974 article, co-authored with Laura Purdy, the same account is set out. In that article the new argument is expressed as follows: An organism has a right to something only if it has a desire (either past, present, or future) for that to which it has a right. One can have a desire, in the morally relevant sense of "desire," for something only if one has a concept of it. Therefore, a thing can desire its own continued existence only if it has the capacity for self-consciousness. The conclusion is then drawn that since fetuses do not have a capacity for self-consciousness they do not have a right to life.

Tooley and Purdy conclude that the fetus does not have a right to life because the fetus is not an actual subject of experiences and other mental states, and does not have a capacity for self-consciousness. They note that while future generations have rights based on their future desires, the desires that a thing would have if it were to live cannot ground a right to life. Thus, if we knew that there would be no future generations, then we should not say that it would be wrong to use up all the earth's resources on the grounds that future generations would desire them if they existed. It is only actual desires that count, not desires that entities would have under different conditions. On this account, therefore, the desires that a fetus would come to have if he or she were not killed are irrelevant.

Up to this point, the argument has been based on the alleged conceptual connection between rights and desires. Tooley has introduced complications into his analysis of rights in order to accommodate various exceptions or apparent exceptions. He began by saying that rights are tied to desires: to violate an individual's right is to deprive him of what he desires. He then added two complications: (1) reference to past and future desires and (2) the exceptions for the emotionally unbalanced and the conditioned or indoctrinated.

III. Tooley's Later Position

In his 1983 book, Abortion and Infanticide, Tooley believes that still more revision is necessary. This time, however, the revision is more drastic. He gives up the claim that there is a conceptual connection between rights and desires. Instead, according to his analysis, rights are based on interests. He now argues that an individual may have a right to something based on the fact that it is in his or her interests, regardless of the individual's past, present, or future desires.

The attempt to base the analysis of rights on desires, Tooley now says, must fail because (1) the resulting account will become too complex and (2) it may not be clear when one has arrived at a complete analysis. That is, the alleged conceptual connection between rights and desires becomes quite complex under the pressure of counterexamples. Each new counterexample seems to require yet another revision in one's analysis of a right. But gradually it becomes clear that one could never be sure that new counterexamples would not arise. Hence, basing the analysis of rights on desires must lead to an essentially incomplete, and therefore inconclusive, analysis.

He now says that there is a conceptual connection between interests and rights. He refers to Joel Feinberg's work, agreeing with him on what Feinberg calls the "interest principle": "[T]he sorts of being who can have rights are precisely those who have (or can have) interests."

One of the counterexamples which leads Tooley to change his position is that of an individual conditioned or indoctrinated not to desire that to which the individual has a right. For example, a slave is conditioned not to desire his freedom. If rights were conditioned directly on desires, this situation could not involve a violation of any rights. Other counterexamples are a child's right to an education, and a child's right to certain nutrients, say, calcium. Although the child may lack the concepts of a good education and of nutrients such as calcium, and so lack the corresponding desires, the child still has rights to those things. Moreover, simply to posit this type of example as an exception to one's analysis, Tooley now says, is to admit that one has not uncovered the basis of rights as such.

But now it is no longer immediately clear how from his analysis of rights the conclusion can be drawn that fetuses and infants do not have a right to life. For it seems that life is in some sense in the "interest" of the fetus. As he indicates, the old argument (for abortion) cannot be merely patched up.

If rights are based on interests, then why, according to Tooley, do fetuses and infants not have interests? Tooley's answer is that they do have interests—even plants in some sense have interests, he says—but not morally relevant interests. "To be a subject of rights one needs to be capable of having interests in the sense that involves the capacity for having desires." So although rights are not directly conditional on desires, they are indirectly so insofar as the morally relevant interests are based upon the capacity for having desires. One need not at present possess a capacity to desire the thing to which one has a right, as we have seen. But, failing that, a thing can be in one's interest only if the possession of that thing makes possible the satisfaction of other desires existing at some time in that same individual. So, on Tooley's new analysis, the slave who is conditioned to desire his slavery nevertheless has an interest in freedom because that would make possible the satisfaction of other desires. The individual in a temporary coma has an interest in continued existence on the grounds that his continued existence will make possible the satisfaction of desires existing in that same individual at other times.

But why can't the same thing be said of the continued existence of the fetus or the infant? Tooley's answer is that the fetus and the young child which the fetus becomes are not identical subjects of experience, because the fetus is not a subject of conscious experiences at all.

Thus, Tooley grants that an individual's continued existence can be in his own interest even when he does not have a present desire for his continued existence. But the explanation for this is as follows:

What is needed, apparently, is that the continued existence of the individual will make possible the satisfaction of some desires existing at other times. But not just any desires existing at other times will do. Indeed, ... it is not even sufficient that they be desires associated with the same physical organism. It is crucial that they be desires that belong to one and the same subject of consciousness.

(Continues...)

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Table of Contents

Preface to the Second Edition ix

Acknowledgments xiii

Introduction 1

1 Do Unborn Human Beings Become Persons after Birth? 8

2 Do Unborn Human Beings Become Persons during Gestation? 47

3 When Do Individual Human Beings Come to Be? 71

4 Is Abortion Justified as Nonintentional Killing? 108

5 Consequentialist Arguments 140

Works Cited 165

Index 173

Editorial Reviews

Lee is an expert guide through the maze of a sharply contested debate-one with chilling implications for our society. — Prof. James G. Hanink, Loyola Marymount University

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