Appendix B - Ethics of Abortion

Review of Major Philosophical and Theological Arguments

  1. B.1 Some people have strong ethical views about abortion. Those views range from absolute opposition to abortion in all circumstances to respect for women’s autonomy, and various points in between. In Chapter 5 we summarised the various views expressed during our consultations.
  2. B.2 The commission’s task is to provide options to government on the decriminalisation of abortion and in particular the legal consequences of various options for reform. The commission has not been asked to form, and has not formed, its own view about the ethical issues surrounding abortion.
  3. B.3 The following section describes some of the major philosophical arguments on abortion.1 The commission has included this review to assist the reader with an overview of the ethical debates that may inform people’s views about abortion.
  4. B.4 The discussion first examines arguments about the ethical status of the fetus. It then discusses ethical views about whether abortion can be ethically justified. It concludes with a description of additional philosophical issues that arise in moving from a discussion about the ethics of abortion to one about the ethics of laws regulating abortion.
  5. B.5 Some caveats are in order. First, the emphasis is on reporting and marshalling the leading arguments in the contemporary debate, and then identifying the major points of disagreement. The various positions are briefly summarised, an approach that will inevitably not capture all nuances. Secondly, there is a deliberate focus on the best-known analyses.2 In a literature as vast as this one, the preference for highly visible scholarship may miss many thoughtful and more recent ethical arguments, including some from women who have experienced abortion directly and some from studies of the relationship between the pregnant woman and the fetus.3
  6. B.6 Commentary in this area generally uses descriptors such as ‘conservative’, ‘moderate’, and ‘liberal’ to categorise different positions in the debate. We have not used those terms because they are not particularly helpful in a brief review of this nature. Just as the commission does not form any view about the relative ’progressiveness’ of any position, it does not judge the merits of the ethical or moral positions discussed. Rather, we acknowledge that a range of views exists.
  7. B.7 This section outlines a mix of views in that range and describes some of the main arguments that sit behind them.

Key Ethical Questions

  1. B.8 No issue in bioethics has attracted more public attention, passionate opinion, and ink than abortion. Abortion is an ethical issue primarily because it involves ending the life of a fetus. It therefore raises challenging questions about the status of a fetus and the interrelationship between a pregnant woman and a fetus. Three specific questions follow:

1. Is the fetus a person, in the sense of having ethical standing and rights?4

2. If the fetus does have ethical standing, what happens when its survival comes into conflict with the decision of the woman to have an abortion? In short, when is abortion ethically acceptable?

3. How do we characterise the relationship between a pregnant woman and a fetus?

  1. B.9 Nearly all the ethical debate on abortion can be distilled into competing answers to those questions, or slight variations on them. Historically, the debate pits opponents of abortion against those who argue that abortion is a personal matter for the woman contemplating it. One line of argument is based on the belief that fetal interests are paramount; the other is based on the view that a woman’s autonomy is paramount.
  2. B.10 Another line of argument seeks to resolve these two, seemingly irreconcilable, views. Positions in this middle ground strive to explain how, if the fetus acquired a right to life at conception, it could ever be acceptable to end its life. Alternatively, if middle-ground arguments are premised on the view that the fetus does not have firm rights, they must attempt to provide a principled basis for justifying situations in which the woman’s right to choose may be limited.
  3. B.11 Some more recent scholarship focuses upon the unique nature of the relationship between the pregnant woman and the fetus. This is examined to find a possible answer to the question of whether abortion is ever ethically justified, and if so, under what circumstances. In particular, the relational approach aims to bridge the gap between maternal autonomy interests and ethical status of the fetus. Its success or otherwise is for others to assess.
  4. B.12 An additional set of ethical questions concerns the justification for legislative intervention. There is an important distinction between assessments of the morality of abortion as a practice and arguments over the morality of laws that regulate abortion.
  5. B.13 The ethical question here is: To what extent is it morally acceptable to limit the ability of pregnant women who request abortions to have them?
  6. B.14 It is at this point that lawmakers confront fundamental policy decisions about the ordering of interests: women’s autonomy, maternal–fetal relationships, fetal interests and the role of the State.

Is the Fetus a Person?

  1. B.15 The first ethical question entails three distinct issues:
  • When does human life begin?
  • When does a fetus become a person with all of the rights entailed in that status?
  • Does a fetus acquire legal rights prior to birth?
  1. B.16 The first is a biological question with ethical overtones. The latter two are ethical questions which may translate into legal policy decisions.

Conception as the Person-defining Stage

  1. B.17 The Catholic Church has long taken the view that life begins at conception and so abortion is a grave ethical wrong.5 A series of pronouncements by Pope John Paul II reinforced this stance: ‘Life must be protected with the utmost care from the moment of conception’.6 Abortion and infanticide are ‘unspeakable crimes’ because they are acts that ‘violat[e] the integrity of the human person’ and are ‘hostile to life itself’.7
  2. B.18 A person’s religious belief might require them to delve no deeper. Others do not take theological teaching as the final word and take a more secular view. John Noonan, an American lawyer–philosopher, is perhaps the most prominent voice in this regard. In defending conception as the beginning of human life, Noonan sidesteps the contested notion of ensoulment8 and opts for more secular logic. The criterion he lays out for humanity is that ‘if you are conceived by human parents, you are human’.9
  3. B.19 This assertion leads to the question of why we should regard conception as the decisive, ethically relevant moment at which a human being comes into existence. Noonan’s position is rooted in two interrelated arguments. The first argument turns on the notion of the fetus as a potential person. The second claims that conception is a more convincing stage than any other in the continuum from gamete to neonate at which to draw the personhood line. Outlining these two arguments, and the counter arguments against them, is a useful way to track opposing views of the fetus’s ethical status.

Potentiality

  1. B.20 Although the basic cells and genetic material needed to form a walking, talking, and thinking human being exist at conception, for many, calling the zygote, embryo, or fetus a ‘person’ at its early stages may obscure the meaning of that word and defy common sense.
  2. B.21 People who argue conception is the moment at which a ethically relevant person comes into existence tend to point to what the fetus is poised to become, rather than what it actually is, in mind and body. This type of argument is referred to as the ‘potentiality’ criterion. The substantial weight Noonan places on the first assembly of the genetic code becomes clearer in light of the potentiality criterion:

[I]t is this genetic information which determines [the fetus’s] characteristics, which is the biological carrier of the possibility of human wisdom, which makes him a self-evolving being. A being with a human genetic code is man.10

  1. B.22 Marquis advances a slightly different version of the potentiality argument—what he calls his ‘future-like-ours’ theory. Marquis condemns abortion because the act deprives the fetus of ‘all those activities, projects, experiences, and enjoyments’ that are commonly the stuff of being human.11 The salient feature of Marquis’s argument is that, by emphasising one’s future as a core element of ethical standing, he is able to appeal to a human characteristic that the fetus has as a fetus;his argument does not turn on some person-like characteristic, such as consciousness, that awaits late gestation or birth for its crystallisation.
  2. B.23 Critics challenge the potentiality criterion on several grounds. First, critiques are levelled at the elastic nature of potentiality. Why stop at conception? this argument suggests; each sperm and ovum is also an organism with the potential for life. Does that mean ending the life of a gamete would be deeply unethical, as is abortion?
  3. B.24 Noonan and Marquis respond by focusing on probabilities. Each sperm has a minute probability of realising its potential to form a person, whereas a fertilised egg has a much higher probability.In their view, the large leap forward at conception in the chances of producing a person is ethically meaningful, and makes it the correct point at which to define the coming into existence of a human being with much the same right to life as any other human being.
  4. B.25 A second challenge to the potentiality argument is that it involves an error of logic. What follows from potential personhood, it is argued, is potential rights, not actual rights, and potential rights and actual rights are not equivalent.12 In this view, potential personhood may give rise to some interests or claims to rights, but these are not fully-fledged rights of the kind we would ascribe to a living person.13
  5. B.26 A third criticism focuses on the implications of the language used. Consider the sequence of logic that underpins the potentiality position: (1) it is wrong to kill an innocent human being; (2) the fetus is an innocent human being; and therefore (3) it is wrong to kill a fetus. Several scholars, most notably Mary Anne Warren, have argued that this equation conflates a physical or genetic human being (in proposition 2) with an ethical being (in proposition 1). This type of human being is a member of a ‘moral community’, someone who exists as a person and carries rights and duties by virtue of that person’s place in society. Warren concludes that it is wrong to regard the fetus as a moral, rights-bearing person of this type.14

Conception—Better than the Rest?

  1. B.27 The other main argument for conception as the correct stage at which to affix personhood is that it is a more compelling moment than any other in the continuum from zygote to neonate in which to do this. Governments, courts, and commentators who reject conception as the decisive point have attempted to defend later stages of gestation as ethically significant;15 however, these positions have their own difficulties. Viability, for example, is a shifting concept that can change with advances in medical technology. It may also vary by place, with premature babies in many developing countries having lower chances of survival because of limitations in the medical care available.16
  2. B.28 There is divergence within the medical community about the true meaning of the term ‘viability’. It is used in two ways. First, it is used as a biological criterion. Secondly, it is used as an ethical category.17 Englehardt argues that the use of viability as an ethical concept expresses the idea that the fetus is of a stage of development that, if brought ex-utero, it could be placed in the ’social role of a child’.18
  3. B.29 Singer, who does not agree with the conception arguments, nonetheless acknowledges that the

search for a morally crucial dividing line between the newborn baby and the fetus has failed to yield any event or stage of development that can bear the weight of separating those with a right to life from those who lack such a right …19

  1. B.30 In the absence of such a dividing line, proponents of the conception argument therefore assert that ‘we must either upgrade the status of the earliest embryo to that of the child, or downgrade the status of the child to that of the embryo’.20 They maintain that as the latter makes little sense to most people, conception stands as the natural dividing line.

Other Approaches to Defining Moral Personhood

  1. B.31 Some philosophers have sought to come up with more nuanced criteria for defining personhood. This enterprise is an important intellectual concern in other realms of bioethics besides abortion, such as end of life care and the status of permanently unconscious patients.
  2. B.32 In the context of abortion, a range of criteria has been proposed as being decisive in determining ethically relevant personhood. The criteria favoured by various commentators include segmentation,21 brain functioning,22 rationality,23 and a conceptual and temporal understanding of one’s self.24
  3. B.33 Mary Anne Warren has proposed five criteria: consciousness (particularly the capacity to feel pain); reasoning; self-motivated activity (relatively independent of either genetic or direct external control); communication and self-awareness. She acknowledges that there may be reasonable debate about whether all of these traits must exist, or just some, but considers it self-evident that if a being satisfies none then the being cannot be a person. The fetus, she concludes, at least in early life, does not satisfy any of the five criteria.25
  4. B.34 A common challenge to these formulations of personhood is that the bar they set for ethical personhood is far too high. It is too high, the argument goes, because no neonate and possibly no infant (much less a fetus) could meet the specified criteria, particularly those that require reasoning and temporal understanding. Consequently, strict application of the criteria would lead us to the conclusion that infanticide does not involve the unethical killing of a being with rights to life.26
  5. B.35 Critics also argue that if the fetus fails the personhood test, then that must mean anything goes.27 Personhood proponents respond in a couple of ways to this challenge. One response is a utilitarian argument that runs as follows: society may be worse off by condoning late abortions that are motivated by inconvenience to the pregnant mother. In these circumstances limits should apply.28
  6. B.36 A second response is to state that it does not follow from classification of the fetus as a non-person that anything goes. Non-persons may still be worth something, especially when they are living things, and cruel, wanton or reckless mistreatment of them can be ethically wrong.29

 

Middle View on ethical Personhood?

  1. B.37 The descriptions so far have tended to pit those who define ethically relevant personhood at conception or soon thereafter, against those who fix it at late stages of fetal development, birth, or some time after birth. Some philosophers have attempted to situate themselves in the considerable space between these opposing viewpoints.
  2. B.38 These philosophers criticise the tenor and tactics of the polarised nature of the debate. Jane English, an American philosopher, characterises the debate this way:

[f]oes of abortion propose sufficient conditions for personhood which fetuses satisfy, while friends of abortion counter with necessary conditions for personhood which fetuses lack. But these both presuppose that the concept of a person can be captured in a strait jacket of necessary and/or sufficient conditions. Rather, ‘person’ is a cluster of features, of which rationality, having a self concept and being conceived of humans are only part.30

  1. B.39 English goes on to criticise the struggle for binary outcomes in the fetus-as-person debate:

[T]here is no single core of necessary and sufficient features which we can draw upon with the assurance that they constitute what really makes a person; there are only features that are more or less typical. This is not to say that no necessary or sufficient conditions can be given. Being alive is a necessary condition for being a person, and being a U.S. Senator is sufficient. But rather than falling inside a sufficient condition or outside a necessary one, a foetus lies in the penumbra region where our concept of a person is not so simple. For this reason I think a conclusive answer to the question whether a fetus is a person is unattainable.31

  1. B.40 This argument appears to reflect the views of a large proportion of the general public about the ethical status of the fetus.32 It does not permit any certain resolution of when it is ethically acceptable to end the life of a fetus.

Relational Concepts of Personhood

  1. B.41 Some look to the unique relationship between the fetus and pregnant woman to answer the fundamental questions about the ethical status of the fetus, and the circumstances in which abortion is ethically acceptable. These approaches may be described as relying on relational concepts of personhood.
  2. B.42 Savell argues,

a conception of personhood that pays due regard to the intrinsic and relational aspects of foetal being has greater potential to explain the existing criminal law, and to guide future developments, than does a theory based solely on the intrinsic properties of the foetus.33

  1. B.43 She reviews several approaches to the issue of ethical personhood.
  2. B.44 Mackenzie argues that in early stages of pregnancy the ethical status of the fetus is defined in relational terms ‘because it is a being with moral significance for the woman in whose body it develops and who acts as its moral guardian’.34 As pregnancy develops the fetus becomes more differentiated from the woman. Thus the fetus’s ethical standing ‘is less and less dependent on its relational properties to the woman in whose body it develops and more and more tied to its own intrinsic value’. The fetus is never the ethical equivalent of the woman.35
  3. B.45 Sherwin adds another dimension to relational notions of personhood. She sees personhood as a social category.36 On her analysis ‘persons are members of a social community that shapes and values them’.37 Thus, in her view, a fetus is different to a newborn and cannot be a person in a ethically relevant sense. She argues that the responsibility for determining a fetus’s ethical worth rests with the woman who is carrying it.38
  4. B.46 Others, such as James, take a broader view of relationships. They look to the potentiality of relationships beyond the mother, identifying a ‘potential web of social relationships prior to birth’ in what is described as the ‘pre-birth space’.39

When Is Abortion ethically Acceptable?

Fetal Interests as Trumps

  1. B.47 It is a short step from understanding the position of the Catholic Church, and commentators who have a similar view of the ethical status of the fetus, to an understanding of their view about when abortion is permissible. Pope John Paul II wrote that ‘direct abortion, that is, abortion willed as an end or as a means, always constitutes a grave ethical disorder, since it is the deliberate killing of an innocent human being’.40 In short, the same degree of moral turpitude that attaches to homicide applies to abortion.
  2. B.48 Thus, when faced with the first question—What is the ethical standing of a fetus?; the answer—The same right to life as any other living person enjoys—is controlling. This leads inexorably to the answer to the next question—abortion is ethically wrong.
  3. B.49 Adherents of this view do not necessarily ignore the notion that the abortion decision involves a conflict between fetal and maternal interests. They may even acknowledge that a pregnant woman sometimes has compelling reasons for not carrying her fetus to term. However, the substance of the response is that the woman’s reasons for choosing abortion will rarely, if ever, prevail over the fetus’s ‘presumptively’ strong right to life.41
  4. B.50 Sumner characterises the reasoning here succinctly: ‘Life is more basic than, and therefore morally prior to, autonomy. When values conflict, the lesser should be sacrificed’.42

Double Effect and Other Exceptions

  1. B.51 Double effect’ is a term that has a number of uses in bioethics. In the context of abortion, the principle of double effect admits an exception, albeit a very narrow one, that recognises the ethical acceptability of abortion when it is undertaken in circumstances akin to self-defence. In Catholic theology, it refers to a fairly specific formula that enables one, in situations where one action will have both good and bad effects, to determine whether the action constitutes a sin. Four conditions must be met:

1. stripped of its context, the act must be good or, at worst, indifferent

2. the actor must directly intend only the good effect

3. the good effect must produce the bad effect, not the reverse

4. there must be proportionality; the act must serve a sufficiently grave need to warrant the risk of producing the bad effect.43

  1. B.52 The Catholic Church regards abortion as ethically acceptable when, and only when, all four conditions are satisfied. The principal exonerating factor is that an abortion in those circumstances would not be intended, that is, the saving of a woman’s life is allowed insofar as it does not include the deliberate destruction of the fetus.
  2. B.53 Double effect is a high hurdle. In practice, only two clinical situations have been held to consistently fit the necessary conditions of double effect.One situation is an ectopic pregnancy, the other is a pregnant woman found to have a malignant uterine tumour, whose fetus is excised as part of a hysterectomy.44

Maternal interests

  1. B.54 Commentators at the other end of the philosophical spectrum concerning the ethical status of the fetus regard abortion as ethically acceptable. As they conclude that the fetus does not possess rights or interests that may override a pregnant woman’s autonomy, there is no conflict between maternal and fetal interests.
  2. B.55 Sumner captures the essence of the argument: ‘Although abortion results in the death of the fetus, it does no harm or injury because the fetus is not the sort of thing that can be harmed or injured. Abortion therefore lacks a victim’.45

Thomson’s Famous Violinist

  1. B.56 In her 1971 essay, A Defense of Abortion, Judith Jarvis Thomson argues that there is a difference between the claim that a fetus has a right to life and the claim that another person (the pregnant woman) is ethically obliged to do whatever is necessary to keep it alive.46
  2. B.57 For the purposes of her argument, Thomson concedes that the fetus is an ethically relevant person with a right to life. Using an imaginary scenario, she then seeks to build a case that the ethical legitimacy of abortion survives this concession.
  3. B.58 Thomson’s argument has led to much spirited criticism. A common focus of the critics is the bizarre and dramatic circumstances of the scenario she uses to illustrate her theory.47 In particular, because the ethical choice she depicts arises as a result of coercion, it is argued that the ethical relevance of the argument to the abortion context is undermined. Small tweaks to the scenario lead one away from the conclusion she draws. Although Thompson does not dwell on this problem, she does acknowledge in a general way that her argument is not that abortion is always ethically permissible.48

Maternal–Fetal Conflict

  1. B.59 Presenting views from two ends of the philosophical spectrum throws key points of divergence into sharp relief. These approaches may be seen as simplifications of what is a nuanced and complex issue.
  2. B.60 Save for an absolutist position, recognition of the fetus’s ethical personhood at conception, or shortly thereafter, coexists with a variety of opinions about when abortion is ethically acceptable. The doctrine of double effect’s highly circumscribed account of self-defence has been criticised, in relation to both abortion49 and other end-of-life situations.50
  3. B.61 Some people reject an approach based upon double effect and accept abortion’s moral legitimacy in a broader range of circumstances. Common circumstances are to preserve the pregnant woman’s life or health (in situations that extend beyond those that double effect would permit); when the pregnancy results from rape or incest; and when the fetus is known to have catastrophic disabilities.
  4. B.62 Within autonomy circles, little scholarship would support the ethical legitimacy of abortion at every point up until birth for any reason whatsoever. The next two subsections review a selection of arguments that identify a conflict between a pregnant woman’s decision-making autonomy and fetal interests. Some of these arguments consider how that conflict should be properly resolved.

Autonomy and Maternal–Fetal Relations

  1. B.63 Some commentators’ understanding of personal autonomy includes a woman being able to determine whether she will physically carry a fetus for nine months, how her life will be lived, and the social relations she will enter.51
  2. B.64 Catriona MacKenzie argues:

It is because of … [the] psychic and bodily connectedness between the woman and the fetus that in pregnancy questions about the fate of the fetus cannot be separated from the issue of a woman’s right to self-determination. What the abortion decision involves is a decision that this part of herself should not become a being in relation to whom … questions of parental responsibility and emotional attachment arise.52

  1. B.65 Some people argue that the relational interest of a woman in the outcome of her pregnancy may be just as important as her strictly biological interest. A pregnant woman has an emotional interest in the fetus and with the broader community, initially during her pregnancy, and thereafter if a child is born. The relational interest of a woman extends beyond pregnancy because once a woman gives birth to a child she enters a relationship—that of mother and child —which brings with it a large number of socially and individually determined responsibilities and expectations. Requiring a woman to continue with pregnancy forces her to enter and maintain a relationship that involves those responsibilities and expectations. Cannold has argued that, ‘the abortion decision is not essentially about ending a pregnancy but about choosing motherhood’.53

Centrist Approach

  1. B.66 Philosophers who reject absolute positions hold a range of views about when and for what reasons abortion is ethically justified. Himma’s personhood criteria define a point in the middle stages of pregnancy, but they are linked solely to fetal development.54
  2. B.67 Mackenzie assigns a different ethical status to the late-term fetus. The fetus is never the ethical equivalent of the woman, hence maternal health grounds for abortion are justified.55
  3. B.68 Callahan argues that respect for the sanctity of human life should cause every woman to have a strong moral bias against abortion.56 He goes on to acknowledge that there are circumstances in which it is ethically right for a woman to have an abortion because of the responsibilities she believes she owes to herself, her family, or society. Callahan’s point is that a narrow focus on protection of the life of the fetus constitutes a blinkered view of the sanctity of life; respect for the sanctity of life also dictates attention to the cost of having a child on the welfare of living children and adults.
  4. B.69 Sumner is more specific. He advocates a policy that would allow abortion on request up to a specified time limit, and ‘only for cause thereafter’.57 Just cause may be established on several grounds: therapeutic (threats to maternal life or health), eugenic (risks of serious fetal abnormality), humanitarian (pregnancy due to commission of a crime such as rape or incest), or socioeconomic (poverty, family size).58
  5. B.70 English is even more specific, linking the ethical acceptability of abortion to both fetal development and the woman’s reasons for obtaining the abortion.59
  6. B.71 Englehardt sees ethical significance in viability. At the same time, he considers abortion after viability ethically acceptable in some circumstances, including maternal health and fetal abnormality.60
  7. B.72 The structure of each of these arguments highlights the formidable challenge associated with drawing a line. The avoidance of absolutist positions results in considerable complexity (some critics say impossibility) in resolving the overall ethical equation.
  8. B.73 Many non-absolutist positions bring two inversely-related sliding scales to bear. One is linked to the development of the fetus, the other to the moral legitimacy of the woman’s motivation for abortion and concepts of autonomy. On this analysis, at early stages of gestation, weak motivations will suffice. At late stages, when the fetus has moved closer to ethical personhood and has assumed substantive interests in survival, the woman’s reasons need to be more compelling.
  9. B.74 While lamenting the polarisation of the abortion debate, Scott provides the following summary:61

[T]he key to the project of reconciliation lies in attention to a woman’s reasons for exercising her right, the ways these relate to her underlying interests in bodily integrity and in self-determination, to the moral claims of the fetus and to the values inherent in the right to refuse medical treatment on one hand and to abort on the other.62

  1. B.75 Scott highlights the moral and normative importance of viability. She sees this as a manifestation of how maternal and fetal interests interlock. In resolving ethical decisions about abortion she stresses ‘the way in which the strength of each must be viewed in relation to and partly determined by the strength of the other, a point inherent in the viability benchmark’.63
  2. B.76 For Scott, ‘the critical issue of justification of harm to the fetus is developed from the woman’s perspective by analysing her relationship with the fetus in two ways: first in terms of her rights, and second, in terms of her duties.64 At the end of the day, though, because of the interlocking relationship between the woman and the fetus, Scott argues that we ‘must place our faith or trust in the moral responsibility of the pregnant woman’.65

 

Abortion Law Making

  1. B.77 The issue of when it is appropriate for the State to intervene in the affairs of citizens is a separate ethical question to the morality of abortion laws. It juxtaposes independent ethical questions about abortion and about legal regulation.
  2. B.78 The relationship between law and ethics has been a central preoccupation of jurisprudential philosophy. Limitations of space do not permit a discussion of the many schools of thought in this area.
  3. B.79 In liberal pluralistic societies Australia, there is often a gap between the ethical views of segments, even majorities, of the population, and expressions of law.66 Although some activities might be widely disapproved of, the State does not always intervene to prevent people from undertaking them. It permits people to make their own decisions about whether to engage in these activities. Many people, for example, frown upon adultery as an immoral act, but it is not illegal. A defining feature of Western liberal ideology is its willingness to reject certain forms of State interventions despite distaste for the acts those interventions would address.
  4. B.80 How should the various ethical arguments about abortion be viewed from the perspective of public policy and law making?
  5. B.81 For some there is fairly straight line between the ethics of abortion and the ethics of public policies toward the abortion. For those who regard abortion as a form of homicide, it is unethical for the State not to intervene to stop and punish people who engage in the behaviour.
  6. B.82 Proponents of this view argue that it is compatible with fundamental liberal ideals. One circumstance in which it may be just for the government to disrupt a person’s freedom is when the exercise of that freedom will adversely affect another person’s rights and freedoms.67 In the context of abortion, some, particularly those who look to conception as the person-defining moment, regard the fetus as that other person. Thus, in order to protect the fetus, the State is entitled to limit the pregnant woman’s autonomy. For those who regard women’s interests in autonomy as paramount, it is apparent that the State should not interfere with pregnant women’s entitlement to make their own decisions.
  7. B.83 There are some influential writers who occupy the middle ground. Dworkin argues that many of those who believe that abortion is never or almost never morally acceptable, ‘nevertheless think that the law should leave women free to make decisions about abortion for themselves, that it is wrong for the majority or for the government to impose its view upon them’.68
  8. B.84 A similar disjunction between ethical and legal positions may attract support among people who argue for women’s unfettered autonomy in the early months of pregnancy, but believe the moral legitimacy of abortion in the later stages of gestation may depend upon the reasons for it. People who hold this view may still resist any law or legal process that would inhibit free choice.
  9. B.85 A distinction between a person’s views about the ethics of a practice and the ethics of making laws with respect to that practice is not necessarily contradictory. Many philosophers have followed in the footsteps of John Stuart Mill in arguing that the government should try, as a rule, to avoid dictating to individuals about matters of personal morality.69 For instance, Callahan, although plainly uncomfortable with the ethics of abortion, nevertheless argues that the government should not enact rigid laws to prevent or reduce the practice because such private matters must constitute ‘a clear and present danger to the common good’ before they are candidates for State action.70
  10. B.86 Thomson argues that while people may confront one another equally in the straight ethics debate, the State-action overlay shifts the burden of proof to those who support an absolute prohibition on abortion. She argues:

[O]ne side says that the fetus has a right to life from the moment of conception, the other side denies this. Neither side is able to prove its case … why should the deniers win? Why break the symmetry by letting the deniers win instead of the supporters? The answer is that the situation is not symmetrical. What is in question here is not which of two values we should promote, the deniers’ or the supporters’. What the supporters want is a license to impose force; what the deniers want is a license to be free of it. It is the former that needs the justification.71

 

 

 

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