The Abortion Debate is a Mess
Of all the conversation topics that’s liable to provoke rage within the first few sentences, abortion has to be at least in the top three. So I’ll make a few preliminary remarks in the hope of not being dismissed out of hand by people on either side of this issue.
Preliminaries
1. In the interests of full disclosure, I’m “pro-choice” — though I dislike the label and it’s likely to give the wrong impression about what I believe.
2. Though I’m pro-choice, I find most people who claim to be pro-choice to be terrible at defending that position, and are often intellectually dishonest.
3. Yes, I am a man (and worse still, white! In fact, possibly the palest human ever to have lived). But if you believe that disqualifies me from having an opinion on this issue, then you’re an idiot — for reasons I’ll explain below, but shouldn’t have to.
4. Having said that, I of course recognise that being a man I have much less skin in the game than women, and that this issue is incredibly sensitive — and with good reason. The stakes are incredibly high for women on both sides of the issue. Life and liberty are at stake. Health is at stake. Whatever way you cut it, and whatever side you claim to be on, this issue demands respect and seriousness. And so I don’t want to be mistaken as treating this issue flippantly. Just the opposite, which I at least hope I can get across in what follows.
5. The irony is, those most likely to accuse me of not treating this topic with sufficient respect or urgency — who claim, for instance, that all this philosophising and naval-gazing is just so much self-indulgence and that what is really needed is action, not pontificating or staking out a “moderate” position — those very people are most likely to not treat this issue with the respect it deserves. These are people who simply shout vacuous slogans and revel in strawmanning the other side, and think that that constitutes a noble stance.
6. I am not trying to stake out a “moderate” position just for the sake of being or appearing moderate. Or simply to try to placate both sides. It’s in vogue now to position oneself as “centrist” as a corrective to the excesses of identity politics on the left and right. And though I for the most part sympathise with that project, that’s not my motivation here. I have no qualms about being seen to end up on an “extreme” end of one policy question or another. If the best arguments take me there, so be it. It’s for that reason that I can comfortably place myself on the so-called “pro-choice” side of the aisle. I just happen to believe that the better arguments in this debate take me there.
7. I also recognise that the vast majority of people who hold a position on this issue, hold it dogmatically. Which is to say, they don’t actually hold it on the basis of reasons and arguments. They just hold it because it aligns with their overarching social and/or ideological allegiances. Because it’s the conservative- or progressive-sounding thing to say on the issue. In the case of conservatives, being vociferous defenders of little babies sounds like the right thing “because traditional family values and God and baby Jesus”. In the case of progressives, being vociferous defenders of women’s right to abortion sounds like the right thing “because female empowerment and independence and f*ck the religious patriarchy”.
8. Relatedly, I realise that for a large number of people, this renders argumentation and philosophical reflection completely futile or redundant. Such people are entirely impervious to any intellectual input; and likewise feel no need to make sound arguments in defence of their position vis-a-vis the other side. That’s the case for elements on both sides. The result is that this is one of the most vitriolic, intractable and generally toxic public debates there is. Not to mention exasperating.
9. I realise too that everything I’m about to say below is, for the reasons just mentioned, unlikely to have any immediate impact in terms of changing people’s minds. And not just because probably zero people will read this and nobody knows who the hell I am. Also because even if everyone did read it, politically motivated reasoning is a very hard thing to overturn. Tribalism and political irrationality are highly incentivised within our democratic systems (see the work of Jason Brennan and Bryan Caplan), and undermine the objectivity of people on both the left and the right. And so sustainable progress on issues comes incredibly slowly, haphazardly, and often accidentally.
10. Which brings me back to point 5 above — do they have a point after all? If I’m pro-choice, instead of writing an article, shouldn’t I just shut up and go out on the streets and hold up a placard with a slogan like “her body, her choice”? No. Because that’s been done to death. And in light of the recent overturning of Roe v. Wade, it’s apparent that it doesn’t get us very far. I maintain — perhaps naively, but I choose to believe not — that the only hope for a long-term, sustainable and sensible solution to this issue is to finally establish and promote strong arguments that actually attend to any legitimate concerns on both sides.
I want to dwell on this last point a bit before we proceed. I take it that any defensible position on abortion ought, as far as possible, to accommodate some of the strongest moral intuitions on each side. Which intuitions in particular do I have in mind? On the one hand, anyone with a shred of moral common sense, in any other context, would grant the presumptive importance of physical autonomy and the right to make decisions about one’s own body and what goes into it, what stays inside it, and what is taken out of it. Note that I have stipulated in any other context — so this isn’t me trying to stack the deck against “pro-lifers”! Likewise, anyone with a shred of moral common sense in any other context would want to ensure as far as possible that late-term, viable unborn children are not needlessly hurt, damaged, neglected or abused. And indeed that even unviable unborn children/fetuses should as far as possible be protected from harm under normal circumstances. I stipulate that any successful solution to the abortion issue cannot entail the outright rejection of either of these common sense moral intuitions. These are non-negotiable side constraints on a viable solution to the abortion question.
The Debate
Ok, let’s get into the weeds of the debate. What’s the crux of it? It should be obvious, but with the way that both sides tend to “debate” the issue (i.e. throwing slogans around and strawmanning the other side), you’d be excused for forgetting. The crux is the tension between the autonomy rights of the woman carrying the child (I’ll use “mother” as an imperfect shorthand from now on) and the presumptive rights of the unborn child — at least at some stages of gestation.
Elements on both sides like to try and “win” the argument by simply avoiding it entirely and helping themselves to their favoured conclusion.
Many self-styled pro-lifers will say things like “life is sacred”, or “life begins at conception”, the implication supposedly being that the life of the unborn child must be protected at all costs. Of course, the problem is that there is also the mother’s life; her body, rights and liberty. The pro-lifer hasn’t bothered to explain precisely how and why the presumptive rights of the unborn override the very obviously pre-existing rights of the mother to decide what does or does not remain inside of her body.
On the other side of the debate, you have a subset of self-styled pro-choicers who will say things like “my body, my choice”, that a woman should have complete autonomy over her own body. Of course, that’s true. But it doesn’t even begin to address what’s actually driving the abortion controversy in the first place — namely, the contentious moral status of the unborn and how that interfaces with the pre-existing autonomy rights of the mother. Again, the pro-choicers need to explain why and how the rights of the mother negate any putative moral status we might confer to the unborn child — at least during some stages of gestation.
In the end, these subsets from both sides end up shouting past one another. And of course both positions are vacuous. Because they’re non-arguments. They’re just free-floating conclusions or slogans in search of an argument.
Moreover, they fail to take seriously the completely reasonable concerns of each side. In the case of pro-lifers, it’s not insane to think that a fetus/unborn child might deserve some consideration in our moral calculus. It’s not unreasonable to worry about the well-being of an unborn child; even to the point of thinking that we might want to frame protection of that well-being in terms of rights, at least at some stage.
On the other hand, it’s also obviously not insane to be concerned about the rights and well-being of the mother! In nearly every other domain any reasonable person demands a heavy burden of proof to be met by anyone who would want to encroach on the liberty of a woman, of any person. The physical autonomy of a woman ought to be near-sacrosanct in a society that aspires or claims to be free in any meaningful sense. And so it’s perfectly understandable that those on the pro-choice side would be vigorously skeptical of any claim to the right to unilaterally determine what a woman may or may not decide to do with her body and what resides therein.
So the crux is how we square the rights of the mother with the moral status of the fetus/unborn.
Another common way that each side disingenuously hijacks the debate at this point, however, is to laser focus on opposite poles of the unborn’s development, and then extrapolate from there to short-circuit the debate and jump to their favoured conclusion. In the case of pro-choicers, they will point to the fact that in the early periods of gestation, the “unborn” is little more than a clump of undifferentiated cells that is hardly recognisable as anything we might call a “human life”. They will then help themselves to the conclusion that a woman has a right to abortion simpliciter — since how can we reasonably claim that a clump of cells has greater moral status than a fully-formed, adult human woman!? On the other side, pro-lifers will typically home in on the stages where the unborn is clearly recognisable as a human life, later in its development. They will point to the unborn at this stage and insist that it is a full human life with rights. From there they will help themselves to the conclusion that the unborn is a human with full rights at every stage of gestation, and that therefore abortion is murder simpliciter.
It should be obvious that both of these are non-sequiturs, for anyone even vaguely aware of the development of the unborn. The unborn isn’t always an undifferentiated clump of cells. Nor is it always a fully formed human being. Obviously. On the one hand, if a mother were to kill a perfectly healthy unborn child at 8 months — and that child’s survival posed no threat to the mother’s physical or mental health — most reasonable people would want to say that that’s morally indefensible, a violation of the moral rights of the 8-month old unborn. On the other hand, to suggest that a mother who, say, takes emergency contraception that results in the destruction of a just-fertilised egg should receive a life-sentence for murder would be considered by nearly any right-thinking person to be preposterous. We have two poles where most reasonable people would want to agree — killing a baby at 8 months is murder; “killing” an undifferentiated clump of cells two days after conception is not. The tricky stuff happens somewhere in between. There’s a continuum of development between clump of undifferentiated cells and pre-natal child on the cusp of being born. And it’s not clear at what point — or if there is a point where — we move from something that doesn’t qualify for rights-based protections to something that does. This is the conceptual terrain where serious debate can and should be had. All too often, it doesn’t even get that far. Probably because elements on both sides recognise on some level just how complex that terrain really is. So they seek shortcuts to avoid it entirely.
The Solution
I believe there is a solution to this problem, and it was originally advanced by Walter Block. For the most part, in the mainstream discussion, this view has been ignored. Probably because Block is a libertarian and most people are incapable of entertaining the notion that a libertarian could be right about anything. Unfortunately, people are all too often incapable of parking their ideological priors in order to objectively evaluate an argument. But there you go. It just so happens Block got it right.
Here is Block’s position in a nutshell. Up until the point of fetal viabilty outside the womb, a woman has the right to abort outright. Why? Essentially, the woman has the ultimate right to remove the fetus from her body. This is the autonomy principle at play. A woman cannot be forced to carry something inside of her body that she no longer wishes to carry (more on why this is the case below). It just so happens that, pre-viability, removing the fetus necessarily results in the death of the unborn. Therefore, it makes no difference whether the unborn is killed in utero or after removal, since removal will 100% result in death in any case. And therefore, the mother who is no longer willing to carry the unborn has a right to abort, i.e. kill the fetus within the womb and/or remove the fetus, resulting in its immediate death.
However, once the unborn reaches the point where it can be viable outside of the womb, the mother still has the right to remove the unborn from her womb; however, she cannot intentionally kill the unborn or have the unborn intentionally killed during that process. As soon as the viable unborn is removed, a duty of care immediately kicks in. The mother or her charges (e.g. the medical professional(s) charged with the responsibility of removing the unborn) must ensure as far as possible and within the available means to strive to keep the child alive once removed from the womb.
Block’s position has the unfortunate name of “evictionism” — no doubt another reason the view has remained on the margins! But I believe it works for several reasons. Firstly, it ensures that the aforementioned common sense moral intuitions are both satisfied as far as possible. It precludes the possibility of late-term abortions that gratuitously kill or result in the avoidable death of the unborn. It also ensures as far as possible that even unborn children very early in the viability window are given as much care and chance of survival as possible — since again, the right to remove the child does not entail the right to kill the child, or avoidably allow it to die. On the other hand, it grants maximal autonomy to the mother. At no point is she obliged or forced to continue the pregnancy. She can end it whenever she wishes. She simply cannot gratuitously kill the child or allow it to die past the point of viability. Prior to that point, in utero or postpartum killing of the child are permissable since to remove the child at such a point necessarily results in its death in any case. In that context, the safest form of abortion from the perspective of the mother’s health ought to be chosen.
Objections
Now pro-lifers are likely to object to the first part of the argument above. Since it seems to be simply assumed without argumentation that a woman has an incontestable right to remove anything within her body that she no longer wishes to remain there. But isn’t this just begging the question?
I believe various thought experiments can establish the conclusion that indeed a woman does have a strong autonomy right to remove anything — even another human — from her body, even if that results in the death of that other human. Let’s start with a crude but I think instructive thought experiment (if you prefer, you can simply substitute in Judith Jarvis Thomson’s famous violinist example instead). Imagine through some bizarre arrangement that an adult human suddenly appears inside of a woman’s body, and for some reason (the reason is unimportant — it’s a thought experiment! So just grant the stipulations), the only way that adult could go on living would be to remain inside of the woman’s body. The question is, would the woman be obliged to allow the adult human to remain within her body just because removing it would result in its certain death? Most would intuitively respond that no, the woman would be under no moral obligation to continue carrying that adult human inside of her in order to keep it alive (we’re also stipulating away the obvious problems of how enormous and implausibly uncomfortable such an arrangment would be! We can modify the thought experiment so that the scenario is no more uncomfortable than a typical pregnancy). Even though removing the adult would result in its death, we could not reasonably insist that she carry on carrying it.
Even modifying the thought experiment so that the woman initially invites the adult human inside of her body, knowing that after doing so this particular human will thereafter need to remain inside of her for an extended period in order to survive, that doesn’t change the moral dynamic. A person can change their mind about occupancy within a domain over which they have ultimate rights. If I invite you into my home, it doesn’t follow that you have the right to remain there indefinitely just because I initially invited you, nor remain there despite my requests that you leave! Your presence will always be at my discretion. Even if through some unfortunate circumstance it would be fatal for you to leave my home after I invite you in, I am still not obliged to keep you in my house. A person might call me cold or callous for insisting that you leave, but in terms of rights, I am under no obligation to keep you there.
By analogy, the pregnant woman is under no obligation to continue to carry the fetus. Even if we grant the pro-lifers’ strongest claim that the fetus is a full human with full rights (perhaps the most debatable premise in the pro-lifers’ entire repertoire), she is still not obliged to continue the pregnancy against her will.
Nevertheless, as indicated, we can reasonably question the pro-lifers’ insistence that the fetus is indeed a full human being with rights. It certainly seems implausible on its face that in the earliest phases of gestation, the unborn entity has as strong a claim on moral rights as the mother, whose presumptive rights to autonomy and liberty are complete and unambiguous. Therefore, even if the above analogies are rejected as too dissimilar to constitute support for an argument from analogy, the notion that we are pitting comparably clear-cut rights claims against one another is itself highly implausible. In the circumstance where the early-stage fetus’ moral claims are far weaker than the mother’s, the mother’s claims to the right to remove the fetus are even stronger.
Another objection to the above is that the point of viability is not clear-cut, and indeed may be different from region to region, country to country, and from one historical period to another. Many take this to be a nail in the coffin of the “evictionist” position, since it is taken to show that the position is “arbitrary” or “relativistic”. However, this is mistaken. Just because the point of viability will be relative to the technological, historical and institutional context in which the pregnancy occurs, doesn’t make the principle relativistic! This is a common conflation. The point of viability in country X may be 3 months, while the point of viability in country Y may be 6 months. Does that mean that we cannot decide when it is acceptable to kill the fetus? Of course not! In country X it will be impermissable to kill the fetus after 3 months. In country Y it will be impermissable to kill the fetus after 6 months. Is it “unfair” that the child happened to be conceived in country Y? Well, perhaps it is. But it’s unfair in the same sense that it’s unfair for a person to be born into a relatively poor country; or to be born with a disability. These are terrible, bare facts about the human condition — countries are differentially endowed, people are differentially endowed, generations are differentially endowed. But does that mean all moral principles must be thrown out? Of course not!
Let’s take another analogy to drive this point home. Suppose my hobby is collecting medieval weaponry. One day I’m alone in my living room, and I decide to swing my medieval mace around the living room just for fun. Have I done something wrong? Well, assuming there’s no one else around, and I’ve taken reasonable measures to ensure that there’s no one else around, then clearly not. Now suppose my neighbour, who’s also a medieval weapons enthusiast, is on a packed bus one day and suddenly decides to take his mace out and start swinging it around for fun. It just so happens that in the process of engaging his hobby, he mortally wounds several people on the bus. Has he done something wrong? Of course he has! “But the only difference between the two of us was the context!”, he objects! “Just because Hugo was in his living room and I was on a bus! That’s not fair! We did the exact same thing, the exact same action! Your principle is relative and arbitrary! You’re saying that the exact same action is ok in one context, and not in another! That’s ridiculous!” How would we respond to my neighbour’s objections? Obviously we’d immediately dismiss them as absurd. The principle is that you cannot swing a mace around in a context where you know there is a high probability that you will kill or injure other people who are in the vicinity. In other words, don’t do that when other people are nearby! Now the context of when other people are nearby will change, obviously! That’s the nature of human existence. Well, the same goes in the case of abortion. The principle is: when you want to end a pregnancy, don’t kill the unborn child in a context where you know that that child could be sustained outside of the womb. When that point is will change, depending on where you are or the point in history. Obviously! That’s the nature of human existence. But the principle is as clear, objective, and non-relativistic as is the principle that you shouldn’t swing a mace around when you know there is a high probability that other people will be hit by the mace.
Abortion in the US
Being an Irish man living in Spain, who has no legal background, I know very little about the US constitution, how the law works in the US, the proper remit of the US supreme court, etc. And so I hesitate to opine on recent events pertaining to abortion in the US. I’ve heard people who seem to know what they’re talking about saying that the overturning of Roe v Wade was technically correct from a legal standpoint, even if it was morally wrong. I’ve heard others saying that it wasn’t even correct legally. I have no opinion on that, given my ignorance. The only thing I will say is I am not a legal positivist — I don’t believe that the law is and ought to be only about determining what is required by the formal legal principles in any given society, and that the law in some sense supersedes objective moral standards.
In any case, it does seem to me that abortion policy is something that ought to be enshrined in the most foundational legal documents of any nation state, given that whatever way you look at it and whatever position you take, it is an issue that bears on fundamental human rights and liberties. What that would mean in the US context, I’m unsure. My superficial understanding is that it would require an amendment, which in turn would require ratification by two thirds of Congress and by three quarters of the states. However unlikely it may be that the position I’ve outlined could be enshrined in an amendment, it seems to me the appropriate domain of contention. And while I sympathise with the decentralising impulse of the US Constitution and the delegation of powers to individual states, it seems to me that questions of fundamental rights should not be deferred to the discretion of the states. Of course, there is no guarantee that were the debate to take place at the level of legislation I suggest, that the result would come out in favour of something like the position I’ve outlined! Hence the prudence of the federalist impulse — it’s often just as likely that an amendment would enshrine something you disagree with as it would something you agree with. And in that case, you’re really stuck! At least in a situation where different states may have different legal regimes with respect to such an issue, you have the relative freedom to move around. But procedural concerns aside, it strikes me nevertheless as proper that abortion rights should be cashed out at the foundational level of any nation state’s rights framework — in the US case, that would be in the context of the US Constitution and its attendant amendments.
