II. What is wrong with abortion

Pre-theoretically we can say that what is wrong with abortion is that it entails the killing of an innocent human being. This is the belief that needs to be rationalized. We need insight as to (1) why it is wrong to kill an innocent human being, and (2) as to whether this prohibition is extended to unborn human beings given their limited powers and abilities⁴.

III. Counterarguments

Even if it is granted that abortion involves killing an innocent human being, and that this is “bad” (many abortion proponents have granted this for the sake of argument), it is still possible to claim that abortion should be “all things considered” permissible. The most influential defenses of abortion have taken this form. Judith ^{Thomson’s violinist argument (1971}), and the idea espoused by philosophers such as Allen ^{Wood (2008}) and Ronald ^{Dworkin (1993}, 2011) that objections to abortion belong under the sphere of personal ethics and therefore cannot be prohibited by law both have this structure. This section aims to show that these counterarguments fail. Abortion remains wrongful.

Thomson’s argument is an appeal to intuition arising from an elaborate and outlandish thought experiment. She writes:

«You wake up in the morning and find yourself back to back in bed with an unconscious violinist. A famous unconscious violinist. He has been found to have a fatal kidney ailment, and the Society of Music Lovers has canvassed all the available medical records and found that you alone have the right blood type to help. They have therefore kidnapped you, and last night the violinist’s circulatory system was plugged into yours, so that your kidneys can be used to extract poisons from his blood as well as your own. The director of the hospital now tells you, “Look, we’re sorry the Society of Music Lovers did this to you-we would never have permitted it if we had known. But still, they did it, and the violinist is now plugged into you. To unplug you would be to kill him. But never mind, it’s only for nine months. By then he will have recovered from his ailment, and can safely be unplugged from you.” Is it morally incumbent on you to accede to this situation? No doubt it would be very nice of you if you did, a great kindness. But do you have to accede to it? What if it were not nine months, but nine years? Or longer still? What if the director of the hospital says, “Tough luck, I agree, but you’ve now got to stay in bed, with the violinist plugged into you, for the rest of your life. Because remember this. All persons have a right to life, and violinists are persons. Granted you have a right to decide what happens in and to your body, but a person’s right to life outweighs your right to decide what happens in and to your body. So you cannot ever be unplugged from him.” I imagine you would regard this as outrageous» (Thompson, 1971, p, 49).

There is much to say against the use of outlandish thought experiments such as these, but lets leave that aside¹¹. Thomson’s argument revolves around the duty to aid. Even if the fetus is a person, he has no right to aid when the aid he needs is very demanding. Thomson has been quite insistent on this point¹². Against Thomson, two things must be said.

First, it is very unclear that we have no duties of aid of the sort rejected by Thomson. Thomson seems to think that rights are basic and opaque. That we have nothing more than intuition to guide us as to what rights exist. This is surely a very questionable limit for inquiry. There is a long line of thinking that sees rights as deriving from a process of social construction. Any reasonable social contract is going to involve a provision for situations in which, for no fault our own, we become downtrodden and must rely on others. To think otherwise is to ignore the human vulnerability that makes us want to establish a social order in the first place.

It is clear that duties of aid are often imperfect duties. That means that to become duties proper they need to go through a process of specification where the law assigns a particular person to bear the duty in a particular scenario. But sometimes this process is not necessary. If I walk by a drowning stranger, circumstances have made the imperfect duty perfect. It befalls on me to save the drowning man. This is why ^{Thomson’s (1971}, p. 59) argument of people seeds is misleading. She writes

«Suppose it were like this: people-seeds drift about in the air like pollen, and if you open your windows, one may drift in and take root in your carpets or upholstery. You don’t want children, so you fix up your windows with fine mesh screens, the very best you can buy. As it happens, however, and on very, very rare occasions does happen, one of the screens is defective; and a seed drifts in and takes root. Does the person-plant who now develops have a right to the use of your house? Surely not-despite the fact that you voluntarily opened your windows, you knowingly kept carpets and upholstered furniture, and you knew that screens were sometimes defective. Someone may argue that you are responsible for its rooting, that it does have a right to your house, because after all you could have lived out your life with bare floors and furniture, or with sealed windows and doors. But this won’t do-for by the same token anyone can avoid pregnancy due to rape by having a hysterectomy, or anyway by never leaving home without a (reliable!) army».

In this outlandish example she is attributing to pregnancy some of the characteristics associated with imperfect obligations. Surely the failure of the protective screens happens frequently and randomly despite one’s best efforts. And no one should have the burden of bringing up 300 people seeds. People seeds are a social problem. Still, the appropriate response is not to kill them or to throw them away, but to make a provision for the government to come and gather the people seed and keep them safe somewhere. People seeds are analogous to refugees, not to pregnancy.

Second, it is misleading to consider abortion as a case of refusing to perform an act of Good Samaritanism. There is a very clear sense in which the woman is not a stranger to the fetus. To assume that what holds between them is a generic duty of aid is to make no sense of the responsibilities that arise within intimate relations. Moreover, in abortion the fetus is the passive recipient of actions on the part of the doctors that ensure that he is in fact killed. Poisoning and dismembering a fetus is hardly “not aiding” or “letting die”.

Finally we should say something about Thomson’s contention that she is defending the right of getting the fetus removed, not of killing it (1971, p. 66). It is glib to think that one can customize one’s responsibility in this fashion. If I throw a person off my lifeboat and he drowns I cannot say “I did not kill him, was merely exercising the power of exclusion that is inherent in my right to ownership”. In order to disabuse yourself from very serious expected consequences of an action more is needed than a mere disavowal. For example, those consequences have to fall within the sphere of responsibility of another person who adds his own decisive contribution to the chain of agency. Nothing of the sort occurs in a purely extractive abortion. If the fetus is only extracted, but not actively killed, the chain of agency still ends with the extraction and death.

It has also been argued that while abortion may be “unethical” it is not a proper topic of “moral” concern. It relates to our values in life and nobody can legitimately force us to have this or that conception of value. ^{Wood (2008}, p. 291) provides us a hammy but usefully succinct articulation of this point of view.

«The issues we are discussing here are, in Kantian terms, issues of right, not of ethics. They concern duties and claims that may be coercively enforced. It is a separate question whether the value of a fetus, and of its development to the point of birth, might constitute a reason for a woman to regard as an ethical duty her carrying it to term even at considerable cost to her own health and welfare. Probably there is such an ethical duty, at least in many cases. But those who would deny a woman even the right to make a choice whether to comply with this duty have thereby utterly forfeited their standing to argue with them about such issues. Someone who would deny you the freedom to make a choice that is rightfully yours to make has no business trying to tell you how you ought to make it. The effrontery of those who picket abortion clinics should therefore be met with stony stares of contempt by the women in whose lives they are trying to meddle».

In response, we must first emphasize that nothing that has been said in section II of this contribution suggests that the objection to abortion is merely ethical. Nowhere has it been argued that fetuses are to be protected because of their aesthetic value, or because of poetry of life or anything of the sort. All the arguments that have been raised are recognizably “moral” in nature. We have argued that the same reasons that make killing wrongful even if it victimizes the dull and the weak, even if done in secret, extend naturally to the unborn.

Naturally the arguments that have been put forward in section II of this essay will be polemical. But it is absurd to think that they are merely ethical on grounds on account of their disputability. If making something polemic is enough to put it beyond the sphere of morals, and therefore, beyond the sphere legal enforceability, then it would be possible for a killer to argue that he sincerely believes in killing, and that since we cannot prove to him, to his satisfaction, that killing is wrong, then it becomes a private matter that relates to his way of life¹³. There is an important sense in which justification must be public, it must be accessible to those who think differently, but the demand is one of accessibility not of actual access. There is no guarantee that arguments will be accepted, and social order must not grind to a halt on this ground.

Moreover, the idea that we can distinguish morals and ethics is suspicious. Maybe it makes more sense to distinguish the inner and the outer, as Kant does in the Metaphysics of Morals. The prohibition on abortion only deals with the outer. It does not require people to believe one thing or the other, to feel one thing or the other, it only forbids certain actions.

And we should certainly distinguish between morals and politics. The argument of Wood and Dworkin derives its force from political scruples. The arguments we have given will not convince everyone. Yet, presumably, abortion proponents and abortion opponents must live together and refrain from violence. This suggests the need for a political compromise. As we will show in the next section of this contribution, the general permissibility of abortion, letting everyone choose whether to abort or not, is in no way a fair political bargain.

IV. Abortion and Liberal politics

Naturally the preceding arguments will leave many unpersuaded. In light of such disagreement, there will be a desire to redeploy the liberal argument along political lines. Instead of arguing that there is “really, really” a right to abortion, it will be argued that it is politically necessary to institute such a right in order to achieve a fair settlement between the claims of abortion proponents and abortion detractors. Roughly, what is claimed is something like this: “you have an intuition according to which abortion is wrong; I have an intuition according to which it is ok. We are both free and equal citizens who have to live together, so we should define a legal regime that splits the difference by being neutral between both of our points of view”. Such neutrality is achieved by making abortion a matter of choice: “If you think it is wrong, don’t do it”. On this reframing whether abortion is right or wrong ceases to be important. What matters is rather whether it is politically acceptable to allow or deny abortion.

It is true that a political settlement is needed between abortion proponents and abortion detractors, but this particular proposal is politically unacceptable. The conclusion that abortion is to be permitted does not follow from the demands of political neutrality. General permission is not neutral between the two parties, but heavily rigged in favor of the liberalizers of abortion and it may be rightly rejected as a political settlement by abortion detractors¹⁴.

In the abortion controversy permission is not neutral between the two parties because it is everything that the liberalizer wanted, and almost nothing of what the opponent of abortion wants. The liberalizer wants permission. He does not wants to make abortion mandatory¹⁵, and permission means everybody gets to choose whether to X or not to X. So he is getting all that he wants. The abortion opponent certainly does not want to be forced to abort, and maybe he gets that, but that’s all that he gets. There is no way in which the result of liberalization splits the difference between the two opposing camps. What would have to be sought is a space in between permission and prohibition. And this can be intelligibly found. For example, abortion can be prohibited, not facilitated, and not punished if it were to take place. This is not what liberal countries have, for the most part, adopted.

Moreover, splitting the difference correctly implies taking into consideration the different degrees of interest or desire of the opposing parties. Admittedly, this is hard to measure, but it is my impression that for those that oppose it, abortion is an abomination. It is one of the worst evils. I don’t think that abortion has a positive significance that would outweigh the negative significance it has for its opponents. Especially given that, with a modicum of prudence, the benefits of abortion can be achieved through contraception.

Liberal politics involves a demand of mutual intelligibility. In liberal politics we should try to make arguments that the other party could accept¹⁶. The argument set forth in this paper is of that nature. It does not invoke any hidden esoteric doctrine, or imply the creation of castes¹⁷. But the liberal requirement of mutual intelligibility is misunderstood if it is taken to mean that any argument another party does not in fact accept must be seen as illiberal and therefore must be withdrawn from the political arena. This requirement is too strong. It incentivizes and rewards stubbornness. It allows the unilateral sabotaging of the claims of some citizens by the refusal to accommodate of others.

Likewise the demand of mutual intelligibility cannot be understood as a lexical demand that trumps all other considerations. In particular, considerations of conscience. If I believe that X is sacred, and X makes demands on the public life of society and I cannot persuade my opponent of X that does not mean that I should withdraw from my claim that X is sacred. Because X makes demands on the public life of society, keeping X to myself is not an option, it implies withdrawing from the claim that X is sacred. At very least, I should be allowed to exit the social contract and to find a social arrangement where I can fully live by X.

In connection to this, it warrants mention that abortion proponents are keen on putting restriction on the modes of discourse that may be used to be discuss abortion. For example, graphic images of what it means for a mother to kill her child will often be rejected as inappropriate emotional manipulation. Yet seeking neutral ground or splitting the difference cannot involve taking away one type of argument that is useful for one party and disadvantageous for another. Splitting the difference here must be something like allowing all arguments free play.

V. Is opposition to abortion religious? Does it matter?

At this point it is important to address concerns that arise from the association of opposition to abortion and religion, the Christian religion in particular. There is the expectation that showing a connection between opposition to abortion and religion will undermine it. Maybe because it is thought that only a Christian can believe that abortion is evil, or maybe because it will reveal an undue intromission of religious thinking into the secular public sphere. None of these expectations are sound.

The arguments presented in the second section of this essay do not depend on religion in any way. In fact concerns presented here are easily understandable from a standpoint hostile to religion. For example, that God apparently condoned the killing of small children in the Old Testament (Psalm 137:9) is something that we can hold against Judeo-Christian religion. For a Christian to object that such killings were all right given the fact that the children to be dashed against the rocks were not proper persons would be obscene. And here one cannot forget how the suffering of children has moved many Christians into atheism or to the verge of atheism, something that is well narrated in Brothers Karamazov.

The political arguments discussed in section 4 are also independent of religion. Even if it were true that all abortion detractors were Christians, and all abortion proponents were secularists, from a political perspective committed to achieving peace by splitting the difference between warring factions there would be no reason for filtering out religious interests and desires, intense as they often are, from the formation of the social contract. On the contrary, a lasting political settlement can only be achieved if the most intense desires of all the factions are accommodated. In certain contexts a permissive neutrality on the part of the state has served this accomodatory purpose. In the topic of abortion it does not.

VI. Abortion and a human rights

In spite of this, abortion has been defended as a human right. It has been defended, first, as a corollary of other human rights that are amply recognized, such as the right to privacy and the right to bodily integrity (of the woman). And more recently, it has been defended as a discrete reproductive right of women. At the time of writing, the General Comment 22 of the Committee on Economic Social and Cultural Rights on the Right to Sexual and Reproductive Health (UN Doc E/C.12/GC/22) stands out as a high profile document that proclaims that abortion is a human right. This General Comment written is supposedly an authoritative interpretation of the International Covenant on Economic, Social and Cultural Rights. The Committee on Economic Social and Cultural Rights pretends that it can extrapolate a right to abortion from Article 12 of the Covenant which innocently (but unwisely) states that «The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health». It is plain to see that in this extrapolation, there is no “interpretation” involved, but rather, arbitrary decision-making. The Committee on Economic Social and Cultural Rights presumes to be a group of experts in human rights. I find this claim strange and unsubstantiated. To my ear “human rights expert” is a jarring combination of words. It is like an expert on morality. A person can be morally wise, but wisdom is not a sort of expertise. Unsubstantiated because the normative directives emanating from the Committee have no arguments backing them up. Those who claim to be legal experts are not entitled to lead by dictatorial fiat.

Pushing abortion as a human right is grotesquely wrong. From an ethical perspective, it is simply asking for a right to what is unjust. From a political perspective, it is a dishonest and inegalitarian measure that oppresses the weakest and most vulnerable in the name of anti-oppression. The perverse character of these inversions of human rights should not escape notice. But beyond being bad in itself, this bad behavior also has very negative ulterior consequences. The inclusion of abortion in the list of human rights alienates abortion opponents from the language of human dignity. In a world where hunger and torture are still widespread, it would be desirable to have a shared political language for opposing extreme injustice. By including abortion within the list of human rights, this language is denied to abortion opponents. This insistence on seeing abortion as part of human rights essentially privatizes human rights into the doctrine of the progressive community. But the world is wider than progressivism, it will always be.