Monday, January 12, 2015

Why Abortion is Permissible

I'm tired of “defending” abortion. By this I mean abortion is often treated as something that must be defended rather than a positive right. This is implied by the title of Judith Jarvis Thomson's “A Defense of Abortion” and David Boonin's book-length treatment under the same title.1 Boonin's Defense in particular is a systematic treatment of various arguments posed by abortion critics. Most of the literature I've read (though admittedly my reading is hardly comprehensive) favoring abortion rights is cast as a defense against abortion critics. Such a “defense” basically implies an argument that runs along the following lines:

1. Abortion is permissible only if no valid objections are raised against it.
2. No valid objection has been raised against abortion.
3. Therefore abortion is permissible.

We would never argue for the freedom of expression or freedom of religion in this manner. We press positive cases that speaking freely or going to church is permissible, defending against objections only secondarily.2 Yet, so far in my admittedly non-comprehensive reading, I've found only two works that attempt to establish a positive case for abortion rights: Roderick T. Long's “Abortion, Abandonment, and Positive Rights: The Limits of Compulsory Altruism” (and note the term limits in the title) and Katha Pollitt's Pro: Reclaiming Abortion Rights.

Why should this matter? A “defense” of abortion focuses on arguing “on terms that critics of abortion can, and already do, accept.”3 This is a perfectly valid approach. If you can't defend a stance on your own terms, why should I accept that stance? If the goal is to avoid a standstill, then this approach is probably the best way to proceed.

But, like the debate about biblical inerrancy, I think that debating abortion will always result in a standstill. Abortion opponents will either engage in new levels of sophistry or simply eschew reason and say intuition is the only thing that really matters.4 Abortion opponents, like biblical inerrantists, will always find some escape hatch, so the only point in debating them is to benefit third parties still amendable to argument.

If our goal is to benefit interested but uncommitted third parties, then presenting arguments an abortion critic is likely to reject has its place. For example, a third party benefits from having differing accounts of what it means to be a person with the right to life and whether those criteria apply to prenates. Even if this leaves those debating abortion at a standstill, the third party will have clear choices and an idea of the rationale behind the differing arguments.

As it so happens, the argument I am going to make here starts with premises that are generally accepted by the abortion rights proponent, the abortion critic, and the undecided person alike. From those premises, I will derive a principle which I believe soundly unifies those premises. Finally, I will demonstrate that if we consistently apply that principle to the topic of abortion, we will conclude abortion is permissible.

But first, we need to get some of the preliminary issues out of the way.

The Preliminary Issues and Fine Print

Prenatal personhood: I am neutral about whether a prenate is a person with the same right to life as you and me. Personally, I am inclined to believe that humans cannot possibly acquire personhood at least until monozygotic twinning and tetragametic chimerism are no longer possible, and probably do not acquire it until birth. Between these two points, I am open to the possibility, merely considering it doubtful. So far, I have not found any arguments favoring prenatal personhood convincing, though I think there are some promising approaches that may yet be parleyed into a successful argument.

In view of my neutrality, my arguments favoring abortion rights stipulate prenatal personhood. Some abortion rights advocates may think this cedes too much to the abortion opponent, particularly since I don't really believe the prenate is a person. However, Thomson's “Defense” long ago established that it is not enough to show that the prenate is a person with the right to life, the abortion critic must also show that an abortion unjustly deprives the prenate of its life. Abortion opponents have generally accepted that part of her argument, effectively rendering prenatal personhood irrelevant to the abortion debate.

Moreover, I have found time and again that abortion critics do not consistently apply the same rules that apply to you and me to the prenate. In other words, what they try to do is give the prenate special rights that exempt them from those rules.5 I've hinted at this in my objections to the so-called responsibility argument, and I may write future posts highlighting those inconsistencies. If stipulating prenatal personhood cedes ground to the abortion critic, it is not a concession that does them any favors.

Meanwhile, stipulating prenatal personhood also allows me to save space. I need not repeatedly say things like “if the prenate is a person” or “the prenate's rights, if any.”

General rules and exceptions: I am making an argument that abortion is generally permissible. In doing so, I will be making reference to rules about the general permissibility or impermissibility of certain actions. Many, if not most rules have exceptions, and perhaps you can think of exceptions to the rules I appeal to. It may be that even if you grant my argument about the general permissibility of abortion, you would still be able think of some exceptions. If those exceptions are justified, I will gladly grant them. However, exceptions do not void the general rule.

Consider this rule: “Homicide is wrong.” I would imagine you agree with this rule. I would also imagine you would also immediately think of exceptions to this rule. Self-defense is an exception that is considered noncontroversial. Other exceptions, like capital punishment and war are more controversial in modern society, but legitimate arguments can be made in favor of these exceptions. However, I think we would agree that even granting the exceptions, homicide is still generally wrong.

Likewise, the general permissibility of abortion does not mean there are specific cases where a woman having an abortion is not legitimately subject to moral criticism. I myself have read accounts that I found morally disturbing. I suspect that many of you have read or heard accounts you found disturbing, even if you tend to favor abortion rights. I am not saying that every woman's decision to have an abortion is above moral criticism; I am saying that she is permitted to make that decision.6

Again, this discussion allows me to save space. I will make statements that on its face do not allow exceptions. When I say “X is wrong” or “Y is permissible,” I generally intend those statements to be understood as “X is generally wrong” or “Y is permissible in typical cases.”

With these thoughts in mind, let us proceed.

The Argument7

Consider the following propositions:

1. Raping someone is wrong.
2. Enslaving someone is wrong.
3. Kidnapping someone for ransom or to further a criminal purpose is wrong.
4. Subjecting someone to involuntary medical/scientific experimentation is wrong.
5. Forcing someone to donate blood, tissue, and/or organs is wrong.

I think few, if any, people will have major objections to these propositions. We may quibble over the precise meaning of rape, slavery, and kidnapping, but if there are actions that are universally wrong, we would be agreed these actions would be among them. As for involuntary medical/scientific experimentation, Joseph Mengele and the Tuskegee syphilis experiment are widely if not universally reviled.

While debating abortion, I have encountered a few people who are open to forced organ donation--to a point. None openly advocate the practice. The vast majority of abortion critics agree that forcing bodily donations is wrong. Legally, such a practice has been forbidden by the courts in the United States. Meanwhile, China's practice of executing prisoners to harvest organs is roundly condemned by the international community. I think it is safe to say that proposition 5 is generally regarded as sound.

Now let us consider these propositions:

6. One may do anything necessary to prevent or escape being subjected to the actions of propositions 1 through 5.
7. Moreover, third parties may also do anything necessary to aid someone prevent or escape being subjected to the actions of propositions 1 through 5.

Again, I don't think many people will pose serious objections to these propositions. The law already recognizes them in cases of rape and kidnapping. Surely anyone trying to take another person's organs or perform involuntary medical experiments on them poses enough a threat of serious bodily harm that self-defense would be justified.8 And surely no one would condemn someone (legally or morally) for killing a slavemaster or Mengele if that is was necessary to escape them.

Now let us consider why the actions in propositions 1-5 are wrong, so wrong that it would justify doing anything necessary to prevent or escape those actions. At first glance, propositions 1-5 are just a random list of acts. They are serious wrongs, to be sure—serious enough to make propositions 6-7 true. Do these acts have something else in common?

Yes. All these acts involve using someone's body without consent. The difference between rape and having sex is that both parties consent to the latter. The difference between a slave and an employee is that the employee can quit. Kidnapping involves holding someone against their will, typically to force a third party into doing something to get their loved one returned. Involuntary medical/scientific experimentation uses a persons body for an end the person does not know and may not care about. And forcing someone to donate blood, tissue, or organs takes something from someone's very body for another's use.

The common factor of using someone's body without consent also explains why these acts are serious enough to make propositions 6-7 true, even if these acts do not physically injure the person. One's body is as close to an absolutely inviolable boundary as it gets. One's body is perhaps the only thing that everyone can truly call their own. To use someone's body without consent is thus a most profound violation of the person.

We can now connect propositions 1-5 together with this proposition:

8. Using someone's body without consent is wrong.

And we can accordingly modify propositions 6-7 as well:

9. One may do anything necessary to prevent or escape another using their body without consent.
10. Moreover, third parties may also do anything necessary to aid someone prevent or escape having their bodies used without consent.

Now, let us turn to the subject of pregnancy. Consider the following proposition:

11. During pregnancy, a prenate uses the mother's body.

Proposition 11 is simply a fact. Even if there were no other considerations, these are some of the things prenates do to women: They implant themselves into the woman's body. They dampen the woman's immune system. They tap the woman's blood supply to obtain nutrients and oxygen. They alter the woman's brain chemistry. They build their bones by taking the calcium from the woman's bones and teeth. They release their wastes back into her body.

When the woman wants to have a baby, she allows the prenate do this to her. In this case, the prenate is doing nothing wrong. When the woman doesn't want to have a baby, what the prenate does to her causes her great harm. Based on proposition 8, we would conclude the prenate is doing something wrong. We'll summarize thus:

12. During an unwanted pregnancy, a prenate is using the mother's body without consent.
13. A prenate's use of the mother's body without consent is wrong.

And based on propositions 9-10, we conclude that the mother or a third party may do anything necessary to escape the prenate's use of the mother's body without consent:

14. The mother may do anything necessary to end the prenate's nonconsensual use of her body.
15. Moreover, a third party may also do anything necessary to aid a woman escape the prenate's nonconsensual use of her body.

All that remains to be asked is whether an abortion is necessary to escape the prenate's nonconsensual use of the woman's body. We can agree that one can do anything necessary to escape the situations described in propositions 1-5. Even so, killing the person doing these things isn't always necessary. We would only say that killing the offender is justified if killing them were the last resort or if killing them was the only means of escape. Surely this applies to the prenate using its mother's body without consent as well. However, given current technology, an abortion is the only means to escape a prenate using the mother's body without consent. Should the technology develop where the prenate can be transferred to another person or an artificial womb without any further cost9 to the woman than an abortion, the necessity of abortion would be questionable. Meanwhile, at least during the early stages of pregnancy, the answer is undoubtedly positive.

Another thing that might make the necessity of an abortion questionable is whether the fetus is viable. When the fetus has become viable, it could be argued that an abortion is no longer necessary. One can either induce labor or have a Caesarean section to end the unwanted pregnancy. Here, I must admit I am not a medical expert and therefore cannot answer this objection definitively. I can note that inducing labor or having a C-section both involve significant negative costs to the mother in terms of her total well-being. How do those costs stack against the negative costs of having a late-term abortion? That is a question I will leave to the experts.

However, when we say killing the offender would be justified if killing them were the last resort, we generally do not mean this in an absolute sense. We don't generally require people to take heroic measures to avoid killing those subjecting us to the actions of propositions 1-5. We don't, for example, require people to put themselves into further danger before saying that killing the rapist or kidnapper the last resort. One may do so, which is why we would consider such people heroic, but they are not required to do so. We may say then that insofar as a late-term abortion is less risky than inducing labor or having a C-section, the late-term abortion can be considered the last resort.

We also probably wouldn't require people to incur significant costs to themselves to avoid killing the rapist or slavemaster, even if we aren't strictly talking about physical risk. The question is how much cost one must incur before we can say that killing the offender was the last resort. It seems to me that this can only be decided on a case-by-case basis. I would suggest using something like the reasonable person standard.10 Are the costs of not killing the offender too much to ask of a typical person? If the answer is positive, then we may affirm killing the offender was the last resort. If not, then killing the offender would not be justified. I suspect mere inconvenience would not qualify. If all a slave has to do to escape is wait an hour for the master to fall asleep before sneaking away, then killing the slavemaster would not likely be justified. Similarly, if the only consideration were that a late-term abortion is faster than the process of inducing labor or having a C-section, then a late-term abortion would not likely be justified. On the other hand, if escaping without killing the offender involves a good deal of pain and suffering, that would qualify. If the choice was between being raped, undergoing torture to avoid killing the rapist, and simply killing the rapist, then killing the rapist would be justified. If the negative costs of induced labor, a C-section, and late-term abortions are roughly equal, then even late-term abortions are justified. And the higher the costs of induced labor or C-sections vs. late-term abortions, the more a late-term abortion is justified. Provisionally speaking, even a late-term, post-viability abortion may be considered necessary for a mother to escape the nonconsensual use of her body by the prenate.11

Let us complete the argument then:

16. An abortion is necessary to escape a prenate's nonconsensual use of a woman's body.
17. Therefore abortion is permissible.

1David Boonin, A Defense of Abortion, (Cambridge: Cambridge University Press, 2001).
2See also Katha Pollitt, Pro: Reclaiming Abortion Rights, (New York: Picador, 2014), 61.
3Boonin, Defense, 2.
4Another approach is to fall back on one's religion, which of course raises the question of why I should be bound by their religion when we live in a secular society.
5It is this fact that more than anything else convinces me that abortion critics' real purpose is to control the lives of women, especially their sexuality. But that is an argument for another day.
6The same may be said about whether a specific person having an abortion acted wisely.
7Astute readers will recognize the general influence of Thomson and especially Long. I am, however, taking a different approach.
8Regan, Donald H. "Rewriting Roe v. Wade." Michigan Law Review 77 (1979): 1611-1618.
9In terms of health risk, pain and suffering, finances, or inconvenience.
10I would argue that the reasonable woman standard is especially justified in this case. Women are the only ones who get pregnant, suffer the effects of pregnancy, and incur the costs of induced labor, c-sections, and late-term abortions. This is not just a differential of effect in unwanted interactions or a case of historical vulnerability as in sexual harassment cases. Pregnancy is a case where men and women are fundamentally different; men simply don't have to face an unwanted pregnancy even in theory.
11Since late-term abortions are rare and are typically performed only in cases where the mother's life or health are threatened and/or cases of fetal deformity, the case I make here about viability may well be moot. Even if I conceded viability as the point where abortion is no longer necessary, I will still have made my case that abortion is permissible in typical cases. I do not so concede because the wrongness of using someone's body without consent does not depend on the duration of use. I am therefore obligated to take viability into consideration when examining the issue of whether abortion is necessary to escape the prenate's nonconsensual use of the mother's body.