In previous posts, I dealt with different forms of the argument from uncertainty regarding the permissibility of abortion. I rejected an argument based on having any doubt whatsoever about prenatal personhood because it erased the pregnant person, making the guidance cruel. I rejected the Quadrillemma largely on the grounds that the odds calculated for the impermissibility of abortion do not withstand scrutiny.
A brand new paper by Matthew Braddock, “Don’t Risk Homicide: Abortion After 10 Weeks Gestation,” has a new wrinkle on the uncertainty argument. Braddock argues that after ten weeks gestation, there is a substantial risk that abortion is homicide, and that is enough to make abortion at that point morally impermissible. One is still permitted to take that risk if the cost to oneself is staggering or to avoid greater moral risk. However, Braddock argues that the only thing that qualifies is a threat to the pregnant person’s life.
The overall impression I have about Braddock’s thesis is the stunning lack of argumentation. He asserts there is more than a 20% chance that abortion after ten weeks gestation is homicide, and that is enough to make it impermissible, but he gives only a brief, vague argument that this risk is substantial enough. He only makes token arguments against bodily autonomy and self-defense arguments, but as we shall see, they are grave threats to his argument. When he finally makes arguments to show there is more than a 20% chance the conceptus has acquired personhood at ten weeks, he doesn’t bother to assign numbers to those arguments, let alone defend them.
Let’s start by acknowledging Braddock’s basic premise is sound, insofar as it goes. If a proposed action has a substantial risk of being morally wrong, it is better not to take the risk so long as refraining from that action does not involve greater moral risk or comes with too high a cost. This of course raises a few questions: How substantial must the risk of wrongdoing be before we are generally1 required not to take an action? How do we go about determining how much greater the moral harm must be before taking the risk is justified? Finally, how much cost must we bear before taking the risk is deemed justified or excused?
With these questions in mind, let’s turn to Braddock’s motivating cases. We can readily dismiss Braddock’s drone pilot case as presented.2 According to the account, the pilot fired a missile at a home during nighttime. This means it was very likely that the missile would kill innocent persons—far more likely than the 1 in 5 chance Braddock believes is enough to prohibit abortion after ten weeks. The pilots did not even know who the actual target was, let alone whether the target was an immanent threat to other innocent people. Under these circumstances, they should not have fired in the first place! It was a little too late to have second thoughts because the pilot saw something that may or may not have been a child. By Braddock’s reasoning, they have already unjustifiably risked homicide before that point.
Braddock’s case of the demolition expert does not offer much light. Using demolitions already incurs strict liability if someone is hurt. So of course the expert is going delay the procedure even given an impatient boss. The consequences to the expert, the boss, and the company are going to be far greater than the consequences of being fired if it turns out the detected movement was in fact a child.
Braddock’s case of the person driving “like a demon” offers the best possibilities for evaluating his thesis. This case can be manipulated in various ways for determining whether such driving at the risk of committing homicide can be justified or excused. In one iteration, you are driving recklessly because you have “a medical emergency that imminently threatens your life.” Here, I agree with Braddock that even if the risk of “homicide is … substantial,” the risk is justified. I also agree with him that if the reason you are driving like a demon is because your career is at risk, you would not be justified if the risk of committing homicide substantial. In between these extremes, the relative risks and costs will have different effects on our judgment. Therefore, I will have recourse to further manipulation of this scenario as we go along.
How High the Risk?
The first premise of Braddock’s argument is there is a substantial (specifically, a “more than 1 in 5 chance”) that prenatal humans are innocent people with a prima facie right to life after ten weeks gestation. This means there is a substantial chance that after this point abortions are in fact homicide and therefore morally wrong (premise 3). Why should we accept this figure? Why not a 40% chance? Why not a 50.1% chance (i.e., more likely than not)? Why not an 80% chance? Why not a 99.99% chance? I don’t know—Braddock barely tries to defend this figure. I can theoretically accept that, other things being equal, we don’t have to be 100% certain that abortion is homicide for it deemed morally impermissible. But if you are going to name a figure, you had better justify it.
Braddock makes a stab at defending the figure by asserting that playing Russian Roulette with a five-chambered pistol is strictly prohibited, though also noting that playing with a six-chambered pistol isn’t morally irrelevant. Regardless of whether Braddock is correct in this assertion, it doesn’t support his case. The odds are 100% that the being playing Russian Roulette is a person. Regardless of the moral permissibility of playing Russian Roulette at whatever odds, the person is taking the risk on themselves, not threatening someone that is only 20% likely to be a person. This example gives us no reason to believe that killing a being that has only a 20% chance of being a person is impermissible. Since Braddock does not attempt to otherwise defend his assertion, that leaves us with no reason to believe that an abortion is impermissible if there is a 1 in 5 chance the prenatal being is a person.
It is possible that Braddock or someone else will publish a defense of the 1 in 5 figure. So for now, we will allow it provisionally, if for no other reason than to evaluate Braddock’s case that the evidence actually supports his contention that there is at least a 20% chance the prenatal being is a person at ten weeks gestation. Braddock holds his defense of this contention until section IV, but for reasons that will be clear later, we will deal with that evidence now.
How High is the Risk?
First, it should be noted that although Braddock contends his six lines of argument “establishes a substantial chance (a more than 1 in 5 chance) that preborn humans are persons after 10 weeks gestation,” he assigns no figures to these lines of evidence, let alone defends them. I agree with Braddock that the figures do not have to be precise, and that even at best can only be roughly estimated. However, Braddock doesn’t even try to put any figures to his arguments. This means that even if the arguments deserve some weight, we have no idea how much weight Braddock thinks they deserve, can’t evaluate whether they deserve that much weight, and can’t tell whether the weight adds up to a 20% chance the prenatal being is a person. Even if they come with heavy caveats, we need some figures to work with.
Worse, many of these arguments are not about building a case for the personhood of the prenatal being, but about “lessen[ing] our confidence” that it is not. Again, Braddock does not say how much less confident we should be than before. Nor does he say how this lessened confidence should figure into the cumulative calculation. Given that no one has made an argument conclusively proving the prenatal being is not a person, few people other than fools will think it is 100% certain the prenatal being isn’t a person at ten weeks. So do we add the lessened confidence to the percentage of uncertainty we already have? What if we had already thought of the argument and our percentage of certainty already accounts for it?
More to the point, what if we haven’t calculated our level of certainty or uncertainty in the first place? I hadn’t made such a calculation. As far as I am concerned, when it comes to the permissibility of abortion, whether the prenatal being is a person is irrelevant. This is why I grant it for the sake of argument. I simply had no need to calculate the odds that the prenatal being has become a person at a given stage of development.
Braddock’s first argument is probably the best. The argument is that humanity as a whole has a really bad track record when it comes to treating others as nonpersons. Whatever level of confidence we have that the prenate at ten weeks gestation is not a person, our bad track record should lessen our confidence. I have to admit, it extremely difficult to argue against this. Nevertheless, the argument is problematic in a couple ways.
First, this argument cannot be limited to prenatal beings at ten weeks gestation. The argument also means that we must lessen our confidence that a newly fertilized ovum is not a person. I doubt Braddock would object to this. But it also means that we must lessen our confidence that bacteria are not persons. And blades of grass. And dogs. And potentially every other living thing. Maybe even some things that aren’t actually alive. Braddock might try to insist that we are talking only about preborn humans at ten weeks gestation, but that still doesn’t avoid the implications of the argument. For the argument to work on Braddock’s terms, it would still have to be substantially more likely that the conceptus at ten weeks gestation is a person than any other living thing deemed nonpersons. Maybe it is more likely to be a person than a newly fertilized ovum. Maybe it is more likely to be a person than a bacterium or blade of grass. But it certainly is not more likely to be a person than a dog, let alone an orca or a bonobo. This means that if this argument is enough to tip the balance, then it would be at least as wrong to kill most animals, an implication Braddock otherwise wants to avoid.
Second, even if we could avoid the implications for killing most animals, it is doubtful the argument has enough weight to potentially tip the balance. Consider that I am not 100% certain that a newly created zygote is not a person. I just consider it highly unlikely, to the point where I would say I am 99.99%+ certain the zygote is not a person. Furthermore, the bad track record plays into that calculation. If I’m going to be fair, I would lessen my confidence the conceptus at ten weeks gestation is not a person by only 0.01% at most. That means all the other arguments will have to account for 19.99% of the probability prenatal beings are persons at ten weeks gestation. And since this is Braddock's best argument, things don’t look very hopeful.
Braddock’s second argument is that we should “lessen our confidence” because of widespread disagreement about fetal personhood. This argument is subject to the same problems as the bad track record argument. There are some additional problems with the subarguments Braddock makes here, however. That there is extensive scholarly literature reflecting upon fetal personhood without it resulting in a consensus on the topic can’t be disputed. I will go so far as to agree that this should lessen our confidence. But again, it doesn’t help much as far as weighting. That 99.99% figure I gave above about newly fertilized ova also includes that widespread disagreement. So if we’re generous and round everything up, then we get to a 0.02% chance the prenatal being is a person at ten weeks gestation.
Braddock wants us to consider the legal status of abortion around the world, citing Boland’s review of abortion laws in 191 countries. Braddock doesn’t say what this should tell us. It really shouldn’t tell us all that much. Most of our laws and customs presume personhood begins at birth. The preborn are not counted in censuses. Pregnant people are not required to obtain or present a second passport for their unborn children. Historically, tax and other benefits parents may receive could not be claimed until the child is born. The minimum age for activities such as driving, voting, marriage, military service, drinking alcohol, and so forth are reckoned from birth. Even where it is illegal, the penalty for abortion is usually not as stiff as homicide against a born person.
Then too, we must remember that of the 191 countries surveyed, 191 have a history of treating women at best as second-class citizens, and often as little more than the property of their husbands and/or fathers.3 Abortion laws are not about whether the preborn are persons; rather, they reflect uncertainty about whether those bearing them are.
As a final note, most countries that limit abortions to the first trimester cover the procedure in that its universal healthcare system. Notably, this is not the case in the United States. I shall have cause to mention this fact again later.
Finally, Braddock asks us to consider the evidence of sociological polling. Given that considerable disagreement about the morality of abortion grows after the first trimester, we should “lessen our confidence” about the personhood of the fetus. Here, we can say a number of things. First, most polls are about recording the opinion of the general populace—whether or not they’ve thought deeply about a given issue, let alone whether they have any expertise on it. For example, over a time span of nearly forty years, Gallup found that around 40% of Americans have consistently reported believing that humans were directly created by God. This doesn’t lessen my confidence that humans evolved over time—nor should it.
Notably, the higher one’s educational level, the more likely one thinks abortion remains permissible at later stages of pregnancy, a fact Braddock fails to mention. To be sure, it never reaches the level that Braddock would deem beyond widespread disagreement. Nevertheless, it would seem to indicate that those who have more awareness of the issues surrounding later term abortions aren’t as willing to rule those abortions impermissible. That should also be taken into account when evaluating how public polling should affect our confidence—particularly if you are among those who have thought deeply and/or have some expertise about the abortion issue.
This brings us to Braddock’s “motivating case” showing that widespread disagreement should lessen our confidence. He asks you to imagine being in a math class with students of comparable background and intelligence. You come up with an answer to a question. Twelve other students came up with the same answer, and eight other students came up with a different though not clearly absurd answer. What should this do to your confidence? Braddock argues you should be less confident about your answer. Is this true?
Not necessarily. Details are going are going to matter. If the twelve students who came up with the same answer are consistently getting As and Bs, while the eight who came up with the different answer are consistently getting Cs and Ds, then why should your confidence be lessened? Arguably, in this case your confidence should be strengthened—particularly if you are also one of the students consistently getting As and Bs.
This is basically the situation that we are dealing with when it comes to public polling. Those of us reading Braddock’s article (and this response) are likely better positioned than the average member of the general public when it comes to the issue of abortion, simply because we think deeply about the subject. Even if few of us can be considered actual experts, we’ve done the research, we’ve participated in the back-and-forth argumentation, and so on. What public polling tells us gives us little reason to lessen our confidence in our stances.4
Finally, Braddock’s argument, to the degree that it is successful, is a knife that cuts both ways. If widespread disagreement should lessen our confidence that the preborn are not persons at ten weeks gestation, it should also lessen the confidence of those who think they are. Funnily enough Braddock doesn’t mention this. However, this is a problem for him. The lessened confidence for each side would likely cancel each other out, resulting in a 0% increased chance the prenatal being is a person at ten weeks gestation.
Braddock’s next line of argument is to point out problems in various theories of personhood. First, let me say I have problems with all the different theories I’ve encountered so far, including the humanist theory he endorses. However, I am not going to detail my objections to each of these theories here. The crux of my disagreement with Braddock is not why a given argument succeeds or fails, but his reasoning.
Braddock’s rejection of mental capacity and relational theories of personhood, and his acceptance of the humanist theory turns on how well they accord with the commonsense view. To recap, the commonsense view is that infants and severely cognitively disabled humans are persons. It is not only prima facie wrong to kill them, but also prima facie wrong to use them in experiments the way we use animals.5 In short, they are persons with full moral status.
Thus, many criticisms of some personhood theories revolve around what they exclude according to the commonsense view, and theorists often take pains to make sure those considered persons in the commonsense view are included in their theories. But the commonsense view itself is rarely questioned.
Personally, I suspect that once we start really digging, we would find that many people holding the commonsense view are in fact self-contradictory. “Is a human infant a person?” and “What makes a person a person?” are two entirely different questions. If you ask someone the first question, they would probably answer affirmatively while looking at you like you’ve suddenly grown a third eye.6 Ask that person the second question, and they may name attributes that clearly exclude a human infant.7 Humans are not well known for being entirely self-consistent.
But testing this theory would involve expending time and money I simply do not have.
Setting aside my speculations, there is the incontrovertible fact that the commonsense view has been proven wrong time and again in other areas. The most (in)famous example of the commonsense view being wrong is planetary motion. Until the Copernican Revolution, the commonsense view was that the sun revolved around the earth. The terms sunrise and sunset are leftovers of the commonsense view. Indeed, the science of physics has a particular knack for upending the commonsense view.
The fact that the commonsense view has been shown wrong so often should, in Braddock’s terms, lessen our confidence in the commonsense view that infants, those with severe cognitive impairment, and/or those in advanced stages of dementia (among possibly others) are persons. It follows that if the commonsense view is wrong, it doesn’t matter how well the humanist theory Braddock prefers accords with it.
Where does this leave us on the question of how to weigh the probability the conceptus at ten weeks gestation is a person? Nowhere. Braddock’s concluding remark is that “confident denials of preborn personhood cannot rationally rest on confidence in these [mental capacity and relational] accounts.” But if one doesn’t rely on them in the first place, nothing is lost here. And since the commonsense view can’t be relied on either, Braddock’s endorsement of the humanist account on the basis of comportment with it doesn’t gain us anything.
Braddock’s first and perhaps only positive argument (i.e., not calculated to “lessen our confidence” of the opposite perspective) is to point out similarities between the ten week fetus and a newborn. How much the similarities can buy us is unclear. The higher apes are very similar to humans, and indeed the case that they are persons is less controversial than the case for most other animals. Nonetheless, it is still a controversial position.
More to the point, in assessing the weight of the similarities, one must also take full account of the differences. Braddock limits the differences to the facts that the newborn is “older, larger, more mature, medically viable, and born.” But these are not the only differences, and they are not even the most important differences.
Other differences between the ten week fetus and the newborn include: The fetus has organs, e.g., the placenta and umbilical cord, that the newborn does not. The newborn acquires nutrients and oxygen in an entirely different manner than the fetus. The newborn disposes of metabolic wastes in an entirely different manner than the fetus. The fetus’ blood circulation operates differently than a newborn’s. The fetus at ten weeks cannot survive outside the body of another human; the newborn cannot survive inside the body of another human. Indeed, the differences between the fetus and newborn are such that we could without much exaggeration liken them to the differences between a tadpole and a frog.8
Do the similarities outweigh the differences such that the ten week fetus has a 1 in 5 chance of being a person? Maybe or maybe not. The point here is that this is the argument Braddock actually needs to make.
Braddock next points to gestational age miscalculations, but I have no idea how this is supposed to be evidence of personhood at ten weeks. Whether a fetus is a person at ten weeks gestation is one thing; calculating gestational age is another. I could understand an argument that a twelve week fetus has likely acquired personhood but we should limit abortions to ten weeks in light of common mistakes calculating gestational age. How gestational age is calculated has nothing to do with whether the fetus has acquired personhood. In any case, presumably medical technology will eventually render this argument moot.
Finally, Braddock points to the “common intuitive responses” of pregnant people to their fetuses at around ten weeks gestation as evidence pointing toward personhood at this stage. As examples, Braddock points out that pregnant people treat their fetus more like a person than, say, a blade of grass. They also tend to mourn miscarriages after ten weeks in a comparable way they would mourn a newborn. Furthermore, these phenomena are fairly common even when the person has prior commitments to the pro-choice position. Surely this counts as (defeasible) evidence pointing to personhood at this stage.
However, Braddock fails to account for biological factors that are at play, not the least of which is the fact that the fetus is injecting oxytocin into the mother precisely to encourage the mother-fetal bond. The human species as a whole engages in a K-selection reproductive strategy, meaning we spend a relatively large amount of time and energy caring for relatively few offspring. Obviously, the earlier and more intense our feelings toward it, the better our offspring will fare.9
Then, too, by ten weeks gestation, many or most people are cognitively aware they are pregnant. This means they’ve had a chance to decide whether the pregnancy is welcome. Since Braddock quotes from The Turnaway Study, surely he is aware that a common reason for having an abortion after the first trimester is that the person didn’t know they were pregnant.10 Surely they weren’t treating a fetus they didn’t even know about as if it were a person. Just as obviously, the fact that they sought an abortion when they did learn they were pregnant means the pregnancy was unwelcome.
It is the welcome/unwelcome distinction that would seem to play the greater role in whether the fetus is treated as a person. Consider that fully 75% of the Turnaway Study’s participants were at fourteen-plus weeks gestation, with nearly half of them beyond twenty weeks.11 Presumably, those who wound up giving birth did so only because they effectively had no means left to abort the pregnancy. But it would also be safe to presume they would have gotten an abortion even later if they could have.
Therefore, contra Braddock, the intuitive responses displayed by pregnant people can easily be explained and/or dismissed. Furthermore, our confidence in the “common intuitive response” argument has to be offset by the biological imperative and the wanted/unwanted distinction.
To sum up, whatever weight Braddock may think these arguments have, they are not going to add up to a 1 in 5 chance the fetus is a person at ten weeks. All his arguments are problematic to some degree, with some of them utterly failing.
It is possible that Braddock or someone else will publish better arguments that will show the fetus at ten weeks has at least a 20% chance of being a person. So for now, we will allow it provisionally so we can evaluate Braddock’s case that only a threat to the mother’s life can justify taking the risk of homicide.
How Staggering the Cost?
Braddock identifies two broad categories that would justify taking an action that comes with a 1 in 5 chance of committing homicide, the lesser risk justification and the staggering cost justification. To qualify for the lesser risk justification, one is permitted to take the risk in order to prevent a greater moral harm. Under the staggering cost justification, one is permitted to take the risk if the personal costs are high enough. We are going to first deal with the staggering cost justification.
To do this, we are going to work with variations on Braddock’s Reckless Driver scenario. Let’s start with a variation proposed by Braddock himself:
Suppose you are rushing to the hospital to save your almost severed limb and you encounter an injured child blocking your only driving path. Can you intentionally run over the child if necessary to save your limb? It strongly seems not.
At first glance, Braddock’s judgment appears correct. But realistically speaking, if you have a nearly severed limb, you are also bleeding to death. And we are already agreed this would justify risking homicide by driving like a bat out of hell. But the odds have now changed from 1 in 5 to a near certainty of committing homicide. Obviously if you can avoid hitting the child, you should. But what if you can’t? Can we say more here?
Perhaps. Let us look at the Innocent Shield scenario as proposed by Judith Jarvis Thomson.12 Imagine someone has a tank and is driving it at you with the express intent of murdering you. You are in an open field and escape is not possible. As luck would have it, you happen to have an antitank weapon. However, your enemy knew this was a possibility and accounted for it by strapping a baby to the front of the tank. If you use the antitank weapon, you will almost certainly kill not only the aggressor, but the child as well. Are you permitted to fire? It strongly seems so.
Let’s note the similarities between the Reckless Driver and the Innocent Shield cases. In both cases, you had no intent to harm the child, i.e., you would not have harmed the child but for the circumstances. In both cases, the child is not the direct cause of the danger to your life. However, the Reckless Driver case is certainly not a self-defense situation. So now we seem to have hit an insoluble impasse.
That is, until we look at yet another similarity between the cases. In both cases, given the threat to one’s life, it is unreasonable to expect an ordinary person to not act to save their own life. If I were a juror in your case, I would convict you only on a lesser charge with a lighter sentence, and acquit if not given such an option. While I can’t say you are justified in hitting the child, I can say the circumstances partially excuses you.
This may well be a moot point since Braddock already agrees it is permissible to risk homicide given a threat to one’s life. Nonetheless, in the post-Dobbs world, doctors are hesitating to offer treatment and pharmacies are delaying prescriptions for fear of running afoul of abortion bans that nominally have life and/or health exceptions. So we could still use more guidance one what “immanent threat to life” means.
My real purpose in manipulating the Reckless Driver scenario is to test whether Braddock’s argument that only a threat to one’s life would justify the risk is sound on his own terms. Now I will manipulate the scenario even further and see where it might lead.
Let us now imagine that instead of driving recklessly, you are driving normally and legally. There is no threat to your life. Suddenly you see the child in your driving path and you cannot stop the vehicle in time. You can avoid hitting the child, but doing so means crashing into something that, while it wouldn’t outright kill you, would certainly cause grievous bodily harm. Are you obligated to incur such cost? Probably not.
My reasoning is similar to the Reckless Driver/Innocent Shield comparison. One can claim self-defense for killing someone in the face of an aggressor trying to cause serious bodily harm. Again, you had no intent on harming the child. But this time, the child is at least an indirect threat and you were not even nominally doing anything wrong. It also seems unreasonable to expect an ordinary person to incur grievous bodily harm. If I were a juror in your case I would outright acquit you, counting this a horribly tragic accident. Both you and the child were simply in the wrong place at the wrong time.
By this reckoning, it appears that grievous bodily harm is also a staggering enough cost to justify taking a 1 in 5 chance that an abortion after ten weeks is homicide. This would also raise the question of how serious the bodily harm must be to justify the risk. Presumably the answer is going to depend on exactly how high the risk is. The higher the risk of homicide, the more grievous the bodily harm must be.
But what if the cost isn’t strictly physical? What if we are talking “only” about the costs of “the physical and mental burdens of unwanted pregnancy and birth, financial costs, social costs, and the frustration of … life plans to some extent?” I have already agreed that driving so recklessly that it creates a 1 in 5 chance of homicide is not justified by a possible loss of one’s career. I outright argued the drone pilots should not have fired the missile in the first place, and I see no reason to believe the possible loss of career and a prison sentence would justify the action. However unilluminating the case may be, I also agreed the demolition expert should not set off the charges if their employment is threatened. It would seem I’ve painted myself into a corner and could be charged with inconsistency if not hypocrisy if I changed course now.
But it only seems so. The basic premise behind Braddock’s entire line of reasoning is actually flawed, perhaps fatally so. I hinted at this flaw in the Russian Roulette case, but now I want to bring the flaw to the fore. While the risk of homicide has the same numerical value, the kind of risk we are facing is very different. In the cases of the Reckless Driver, the drone pilots and the demolition expert, the risk consists of the possibility we might kill a being that we know is a person. In the case of an abortion at ten weeks gestation, the risk consists of killing something that might be a person.
Braddock conflates these different types of risks. I permitted this to show one of his arguments don’t work on his own terms. Having accomplished that, it is now time to point out that since we are talking different types of risks, we are justified in treating those risks differently. Where does this lead now?
First, the bar of what we can and can’t do is lowered. I am required to avoid harming—let alone killing—you because we know you are a person. I am not so required to avoid harming a blade of grass even though, however unlikely, it might actually be a person. I would take greater care not to harm fellow great apes or members of the dolphin family than I would for dogs and cats because I am more (though not 100%) certain the former are persons than the latter. And I would be more careful of harming dogs and cats than I would a fetus at ten weeks gestation because, once again, my level of certainty that dogs and cats are persons is higher.
Second, reasons that certainly would not justify or excuse the risk of killing a being we know to be a person may well justify or excuse killing things that only might be a person. Being late for work is all the justification I need for taking a shortcut through the grass even though there is a risk I would be committing mass homicide. As with the grievous bodily harm case above, presumably the more likely something is to be a person, the more compelling the reason must be to risk homicide.
Now let’s look at the Turnaway Study. The study shows that denying a wanted abortion comes with significant costs to the person in terms of physical health, derailed life plans, finances, economic opportunity, educational attainment, and relationships. Given that (granting Braddock’s arguments) there is a 20% chance the fetus at ten weeks is a person and that an abortion would be homicide, would any one of these costs be enough reason to take the risk? Perhaps not, but importantly that would have to be argued. Would combining two of these categories of cost be enough reason to take the risk? Again, that would have to be argued, but it is more likely. Add another category and the it becomes more likely to be reason enough to take the risk. All of them combined? It would almost certainly be reason enough to take the risk.
Moreover, multiply these costs to the tune of 150,000+ times per year in the United States (Braddock’s figure). Now we are talking about a staggering cost to society. A 1 in 5 chance the fetus is a person is definitely not enough to offset that cost.
How Low the Moral Risk?
We now turn to the lesser risk justification. According to Braddock, the lesser risk justification means that one may risk homicide in order to avoid greater moral harm. Also according to Braddock, the greater moral risk falls on the side of abortion.
To fully explore whether this is true, it is necessary to go back to Braddock’s premise 2: “If they [fetuses at ten weeks gestation] are in fact innocent persons, then killing them in abortion is an act of homicide….” Braddock is aware, of course, that there are philosophers who argue that even if the fetus is a person, an abortion is still not an unjust killing. Most of these arguments are rooted in Judith Jarvis Thomson’s “A Defense of Abortion.” This means Braddock has to deal with such arguments.
He deals with them by basically dismissing them with very little argument. He characterizes Thomson’s argument as “flawed,” but his own responses don’t inspire much confidence as they fall into the category of “asked and answered.” Moreover, however “flawed” Thomson’s original argument may be, it is obviously not fatally flawed. The fact that it is still a focus in discussing abortion more than fifty years after it was published itself means that Braddock should lessen his confidence the argument is flawed enough avoid “contribut[ing] to an already developed literature.”
Braddock is even more dismissive of arguments based on self-defense, merely presuming unborn humans are innocent. But Eileen L. McDonagh’s Breaking the Abortion Deadlock: From Choice to Consent13 has been around for nearly thirty years. While I don’t necessarily expect Braddock to take notice of it, my argument has been readily accessible on the web for seven years. Both argue that in an unwanted pregnancy, the fetus is an aggressor performing actions that would justify self-defense in any other context.
But let’s assume that argument is also flawed. There is still a basic problem with Braddock’s dismissal: these lines of argument presume a 100% chance of personhood for the conceptus. But Braddock is only arguing that the fetus at ten weeks gestation is only 20% likely to be a person. What might be a flawed argument under the presumption the conceptus is 100% a person may not be as flawed if the fetus is only 20% likely to be a person.
For example, every argument I make about abortion presumes the conceptus is a person right from conception. What I do is take the rules that apply to you and me and I apply them to the situation of the pregnant person and the fetus. To the extent those arguments succeed, they succeed because those rules apply to those who are 100% without a doubt a person. If they are successful given the assumption prenates are fully persons, then they are that much more successful if we are making out the odds of personhood to be only 20%.
However, the core reason Braddock can’t dismiss these arguments so easily is because they are rights-based arguments. And as rights-based arguments, they directly play into the lesser risk justification. If there is a greater moral risk in denying abortions even considering there is a 20% chance the abortion is homicide, then violating the pregnant person’s fundamental rights would certainly be it.
Perhaps a 20% chance an abortion is homicide is enough to outweigh the pregnant person’s reproductive rights (though Braddock would have have to make a far better argument14). But reproductive rights are not the only rights that are implicated in the abortion debate, particularly when the state gets involved. The right to be free from slavery or involuntary servitude is not so easily defeated, for example.
Avoiding the Risk
When Braddock turns to policy implications, he makes me wonder if he takes his own argument very seriously. If there is such a risk of homicide in having an abortion after ten weeks, and it is as grave a problem as he thinks, surely he could have spent more than a single paragraph working out what we could do about the problem!15
And what is his solution? It is obvious Braddock strongly favors outlawing abortion after ten weeks. What else? We could implement social policies to “minimize the cost faced by women in unwanted pregnancies.” But we don’t actually have to go that far. And that is the extent of his policy recommendations.
What about doing things that will reduce the likelihood of having an unwanted pregnancy in the first place? Braddock says nothing about comprehensive sex education or the provision of effective contraceptives.16 Surely if one wants to avert the risk of homicide, preventing the creation of a person in the first place is a good place to start! Perhaps Braddock omitted discussion of preventing unwanted pregnancies because he wanted to focus on actual as opposed to possible pregnancies. If so, then fair enough.
But even focusing on actual pregnancies, there is still things that could be said about preventing the risk of homicide from climbing to twenty percent. He cited Boland and even quoted Foster. He should therefore be well aware of the fact that the primary delay in getting an abortion, other than discovering one is pregnant, is access.17 Yet Braddock says nothing about access even though he asserts the violation to a pregnant person’s reproductive rights is moderated by the fact they could have an abortion before ten weeks.18
We previously noted that countries that restrict abortion to the first trimester also usually pay for them through their universal healthcare systems. This is not the case in the United States, where the Hyde amendment prevents the use of federal funding for abortions, and only a handful of states provided such funding even before the Dobbs decision. Half of the states restrict if not outright prohibit private health insurance from covering abortion. Even pre-Dobbs, 86% of US counties did not have an abortion provider, meaning pregnant people had to travel long distances in order to get an abortion. These are significant barriers without getting into regulatory obstacles such as waiting periods and TRAP laws. Yet Braddock says nothing about any of this.
Conclusion: Make an Argument!
The entire basis of Braddock’s argument is fundamentally flawed. It confounds two entirely different types of risk and treats them as if they were the same. This is clearly seen by contrasting his “motivating cases” with the actual argument he is making. In the motivating cases, the person is risking homicide by taking actions that could kill someone. But the argument Braddock is trying to make is that having an abortion at ten weeks gestation risks homicide by killing something that has a 1 in 5 chance of being a person. The rest of his argument builds on this equivocation. However, since they are different types of risks, they can be treated differently.
Even if Braddock had made a more straightforward case without the equivocation, it still suffers from a lack of argumentation. Braddock makes no argument that a 1 in 5 chance something is a person is in itself too substantial a risk of homicide to generally prohibit killing it. Indeed, he probably can’t do so without opening a can of worms he would rather avoid, such as the permissibility of killing animals that are far more likely to be persons than fetuses at ten weeks gestation.
In building the case that the fetus has a twenty percent chance of being a person at ten weeks gestation, Braddock simply says nothing about how much weight should be assigned to each piece of evidence. He doesn’t argue they deserve as much weight as he thinks they have. So even if they were successful (and we’ve seen they are problematic at best), we have no basis to assess whether they add up to at least a 1 in 5 chance the fetus is a person at that stage.
Braddock tries to argue that only a risk to the mother’s life is enough a staggering cost to justify taking the risk. But we demonstrated on his own terms that grievous bodily harm would also justify it. Once we drop the equivocation, we’ve shown that the costs to individual pregnant people and society far outweighs the risk.
Braddock dismisses arguments favoring the permissibility of abortion without considering that he changed the ground of the debate. That means he has to argue not only are those arguments flawed, but also they are so flawed that a 1 in 5 chance an abortion is homicide is still enough to defeat them. Instead, he merely sweeps pregnant people’s rights under the rug. This is especially problematic since he strongly favors bringing in the state to enforce his pronouncements without requiring it to effectively reduce the risk or the costs.
NOTES
1 Here we need to distinguish between what an individual decides is too high a risk and what is too high a risk generally. Individuals are of course free to set the bar as low as they need to feel comfortable. In most cases, not acting is entirely permissible morally speaking. So if you feel there is a 1% chance that abortion is homicide, and those odds are too high for your comfort, then you should not have an abortion. The question before us is how substantial the risk must be before no one is permitted to take the risk, other things being equal.
2 It should be stressed that I am evaluating the case as presented. A more complete account may well cover the holes in the story that lead to my conclusion.
3 As an aside, Alito’s opinion in Dobbs v Jackson Women’s Health Organization reviews the history of abortion laws in common law and the states. Alito fails to mention that nearly all these laws were promulgated at a time when women had little say and no power to effect the promulgation of such laws. I don’t know if I fully buy Reva B. Siegel’s Nineteenth Amendment argument (“Sigegel, J., concurring” in What Roe V. Wade Should Have Said: The Nation’s Top Legal Experts Rewrite America’s Most Controversial Decision, Jack M. Balkin, ed [New York and London: New York University Press, 2005], 63-85), but I do think we should at least be suspicious of laws directly affecting women that were passed before they had the right to vote.
4 To be absolutely clear, this applies to both sides. If polls went the other way, anti-abortion proponents who think deeply about the topic, have done their research, etc., need not “lessen their confidence” either.
5 I am certainly (and Braddock is presumably) aware that the issue of animal experimentation hotly contested in both the moral and political arenas. That issue, however, is beyond the scope of both essays.
6 Yes, I’ve recently seen Doctor Strange in the Multiverse of Madness.
7 The most obvious exceptions are going to be those who would give an explicitly religious answer, such as being made in the image of God or the possession of souls.
8 Two additional things may be said here. First, we could point out the manner in which the newborn takes in oxygen and nutrients, disposes of its wastes, and circulates its blood more closely aligns with how beings we know are persons handle these functions. Second, the birth criterion is not as absurd as Braddock makes it out to be.
9 I am indebted to the person using the pseudonym “Ignorance is Curable” for this argument, as well as for pointing out the huge difference the placenta and umbilical cord makes.
10 Diana Greene Foster, The Turnaway Study: Ten Years, A Thousand Women, and the Consequences of Having—or Being Denied—An Abortion, (New York: Scribner, 2020), 5. Notably, Boland observes this phenomenon is not limited to the United States; unawareness of pregnancy as a primary reason for having a second-trimester abortion seems to be universal.
11 Foster, 20.
12 “Self-Defense and Rights” in Rights, Restitution, & Risk: Essays in Moral Theory. Ed. William Parent. (New York: Harvard UP, 1986), 33-38.
13 New York: Oxford University Press, 1996.
14 How does a 20% chance of homicide really stack up against a 100% chance of violating the person’s reproductive rights? Remember, a twenty percent chance of homicide means there is an eighty percent (i.e., a far greater) chance that it is not. Sure, other things being equal, violating a person’s right to life would be a worse violation than violating a person’s reproductive rights. But given an eighty percent chance an abortion at ten weeks gestation is not homicide, all other things are not equal here. If Braddock wants to discuss odds, he should weigh them seriously.
15 Braddock writes more about preventing fetal pain than he does about preventing the fetus being killed!
16 When it comes to contraceptives, Braddock cannot appeal to the canard of many slavers that certain contraceptives act as abortifacients. The theoretical grounds that these contraceptives might prevent implantation occurs well before Braddock’s ten week cutoff.
17 See Foster, 65 and Chapter 3.
18 Notably this leaves those who don’t become aware they are pregnant until after ten weeks out in the cold. As noted previously, Braddock should also be well aware of this fact as well.
