A Moral Vindication of Roe v. Wade

In the 45 years since Roe, much has been written about the morality of abortion, and much has been written about the soundness of the legal reasoning in Roe. The aim here is not to join directly either of those arguments. We will leave aside, for example, the invocation of the “penumbra” and matters regarding the legal reasoning employed in Roe.

Nor is it our aim to establish once and for all the moral permissibility or impermissibility of abortion. Rather this essay aims to argue that there is a plausible moral rationale that supports the “trimester” theory of Roe. This may become very significant in the event that Roe v Wade is overturned, as the issue will likely be determined on a state by state basis, as it was prior to the decision in Roe. In that event, it may prove especially important that there is a reasoned and plausible basis for subsequent state laws.

This is not insignificant. The Roe decision can fail to have a plausible moral rationale in either of two ways. It is argued, for example, that at conception the zygote acquires full-fledged moral status: it has a right to life that abortion violates. Were this argument fully compelling, clearly there could be no moral justification for Roe. Similarly, if the argument that the fetus has no moral status at any time during pregnancy (or even shortly after birth, according to some arguments), then Roe would allow the violation of rights possessed by the woman. So, it is not obvious that there is a moral vindication of Roe. We argue for an accrual view of moral value. This is similar to what is known as the gradualist view. But we identify important differences.

We adopt the following approach in this essay. We believe it is sufficient for Roe to have a moral vindication if:

1) There is no compelling argument for the claim that the zygote has a right to life from the moment of conception.

2) There is no compelling argument for the claim that the fetus has no moral status whatsoever, even immediately before or after birth.

3) There is a plausible argument, which has as its conclusion the claim that as the zygote/embryo/fetus develops, it continues to acquire moral status. Further, such an argument marks that progression roughly along the trimester lines followed in Roe.

It is important to note that we do not claim that the arguments in (1) and (2) are necessarily invalid. We will not even claim that they are obviously unsound. Rather, we claim that it is not obvious that either a crucial premise or a premise in a supporting lemma requires assent. For example, John T. Noonan’s (justly) famous argument is clearly valid. And it may be sound. But we argue that has not been shown, since either a crucial supporting premise or supporting assumptions are not obviously true. In other words, there are plausible reasons to suspect the supporting assumption or premise. Thus, plausible to hold that this remarkable argument of Noonan’s is unsound. And this is all this we need to open the door to providing a plausible moral justification for the trimester view of the legal permissibility of abortion. This is done in the concluding sections of the paper.

We proceed as follows. After a brief explanation of the relevant reasoning of Roe, we present and analyze the “Potentiality Principle.” It is our claim that several pro life arguments depend on this principle – a principle that we claim does not compel assent. We then turn to consideration of pro life arguments, beginning with Noonan’s “An Almost Absolute Value.” As just noted, Noonan’s argument is clearly valid. But reasonable doubts about its soundness arise, including its reliance on the Potentiality Principle. We argue that there is good reason to doubt this principle. We then analyze arguments by Kushner and Marquis, arguing that they do not compel assent to the immorality of abortion.

Turning to pro abortion arguments, we survey Warren’s argument and Thomson’s “violinist” defense. We argue that Thomson’s violinist case does not show what she intends it to show. Moreover, we argue that David Boonin’s attempted, intricate defense of Thomson’s position fails to render compelling Thomson’s argument. We think that Thompson’s argument is an important step in the general position that abortion is always morally permissible. Thus, we consider hers and Boonin’s arguments in some detail.

While still an admittedly brief survey and critique, we think it shows that it is plausible to hold – there is a rational basis for holding – that these arguments do not command intellectual assent. This then suggests a sort of “penumbra,” which opens the way to seeing that there is a plausible moral rationale for thinking that as the zygote/embryo/fetus develops, it continues to acquire greater moral status. (Unless there is reason to distinguish the phases, we will simply refer to fetal development.) We then argue that this is sufficient to provide a plausible moral justification for Roe. We suggest a solomonic dividing of the abortion argument into thirds: either end of this argument continuum does not require assent, leaving open a third possibility.

No critical survey of the “abortion morality arguments” and ignore the argument of the late Jane English. In light of what has already been argued, we hold that her argument provides a framework for thinking about the moral permissibility of abortion. We than argue that this position forms a basis for the trimester framework in Roe, but we further note that the basic trimester framework requires emendation, which is the aim of the value accrual theory presented here.

Again, this is not insignificant. While a majority of Americans may favor keeping Roe intact, an even larger majority believe that late term (third trimester) abortions should not be legal, absent an exigent circumstance such as the health of the mother is at serious risk. The fact that a majority of individuals believe that early abortions are permissible but late term abortions are not generally permissible might seem intuitive to many. Yet he justification of the proposition that late term fetuses have a greater moral status than early fetuses proves difficult.

This essay takes no definitive stand then on the moral permissibility of abortion; similarly no stand is taken on the legitimacy of Roe reasoning. To some this may seem too cute by a third. It is not, however, insignificant to note that there is a plausible moral vindication of a simultaneously widely hailed and reviled Court decision.

I. The Holding

In 1973 the Supreme Court decided the companion cases of Roe v. Wade and Doe v. Bolton. Justice Blackmun wrote the majority opinion, which analyzed the constitutionality of a Texas statute that criminalized the procurement of abortion except where necessary to save the mother’s life. In the majority opinion, the Court discussed historical attitudes regarding abortion, as well as English and American common law and statutory law, to discern the justifications for criminal abortion laws in the nineteenth and twentieth centuries. Justice Blackmun began the Court’s analysis by recognizing a fundamental right of privacy that protects a woman’s decision to choose to terminate her pregnancy. The Court found the right to be a matter of personal liberty embodied in the Due Process Clause of the Fourteenth Amendment. The Court identified the detriment to the pregnant woman if she were not permitted to obtain an abortion:

Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved.

The Court acknowledged, however, that the right protecting the pregnant woman’s interests must be balanced against the state’s interests in assuring the health of the mother and in protecting “potential” human life. The Court was therefore required to determine at what point the state’s interests become compelling. The Court held that the potential that the fetus possesses throughout the pregnancy becomes constitutionally significant at the point the fetus can survive independently of the woman, or the point at which the fetus becomes viable. Viability thus counts as a legally significant marker in fetal development. (Although the Court did not understand its ruling in this way, viability is thus also conceptually significant, for it also signals the thought that potential has become sufficiently actual. We will “reinterpret” this with accrual view below.) The Court held that the woman’s right to privacy implied that she has an absolute right to have an abortion in the first trimester of pregnancy, but that the states may regulate abortions in the second trimester in order to protect the health of the woman. Finally, unless the woman’s health was at risk, the states may regulate or even proscribe abortions in the third trimester.

In choosing fetal viability – 24 weeks – as the legally significant point in fetal development, the Court rejected the pro-life position that life begins at conception. Accordingly, the Court declined to find that there is a compelling interest in protecting life from the moment of conception, stating that the Court was not in a position to speculate as to when life begins. Insofar as Roe prohibits states from proscribing most abortions, pro-choice advocates have largely claimed it as a total victory, while pro-life advocates have taken it as a devastating loss.

Since Roe was decided in 1973, the Supreme Court has addressed the issue of abortion on several occasions. For our purpose, the opinion in Planned Parenthood v Casey is most germane. In Casey, the Court deleted the trimester framework of Roe, but reaffirmed the fact that women have a right to have an abortion until the point of viability (Id at 872). The Court also noted (Id at 860) that the point of viability may not be precisely at 24 weeks, due to advances in medical science. We will address this below.

Roe (and thus Casey) has been criticized in that it provides no conceptual justification for its holding that the viability of the fetus is dispositive. As noted, the purpose of this essay is to articulate a plausible moral justification for the decision in Roe. While we do not rely on the notion of viability, we think it points to the continuing development of the zygote/embryo/fetus as legally, conceptually and for our purposes here, morally significant. As such, the decision in Roe will be vindicated in the sense that the trimester framework is reasonable, if not logically necessary.

II. Pro-life Arguments

1. The Potentiality Principle

Some pro-life arguments rely on a principle we identify as the Potentiality Principle. The Principle is, however, not obvious and cannot – without further justification – underwrite an argument for the impermissibility of abortion.

The Potentiality Principle claims that an entity has rights or status based upon its potential to develop. The Principle may be formulated as follows:

If A has the potential to be a B, A now has the rights that B will have. However, we do not generally confer actual value on the basis of potential. For instance, an individual who will be sworn as an attorney tomorrow does not have the right to practice law today, and hence does not have value as an attorney, based on that potential. Similarly, an individual who will be a physician tomorrow may not practice medicine today; an individual who will graduate from the police academy may not act in the capacity of a policeperson now.

It might be responded that in such case the individuals may not have the right to act in the capacities or roles indicated; nonetheless, they each have a right to life and the right to continue to develop the respective potential. But this is misleading. The relevant rights – to live and continue to develop – follow from the actual status as a developed person, not from any potential. We should note now that we take the assignment of types of rights to be an indication of possessing types of value. That is, rights to practice as a physician indicate having value qua physician. Having rights (of a certain type) presupposes having value (relative to that type).

Considering a further response allows us to see the real problem with the principle. It might be claimed that there are indeed some cases in which rights are conferred on the basis of potential. For instance, certain fellowships are conferred on the basis of the attainment of a certain GPA. The attainment of the requisite GPA, and hence the “right” to hold the fellowship, indicates the potential to do well in future study.

There are two problems with this example. First, the example presupposes a specified policy that confers the benefit. That is, there is already an established link between having a certain GPA and receiving a particular benefit or “right.” But there is no specified policy in the context of fetal potential; there is no link, in the absence of assuming such to be the case. Such an assumption is question-begging, however.

The real problem is that the existence of even several examples in which rights are conferred on the basis of potential is not dispositive. Since there are cases in which rights are not conferred on the basis of potential, proponents of the Potentiality Principle must demonstrate its applicability in the case of the fetus. Bluntly, mere appeal to the principle is question-begging.

It is worth considering one (possible) explanation of the association of moral status with potential in the case of fetal development. There is no doubt that we value potential. A general manager signs a pitching prospect on the basis of his potential. The general manager (and others) hope or expect or find it probable that, with the proper coaching and experience, the prospect will someday fulfill a certain role. And the fulfilling of the role is a genuine value to the general manager and the team. The connection of course is that the prospect possesses certain properties, which, with the proper development, can “grow into” the properties that warrant the current monetary investment.

A fetus (or a zygote or an embryo) also possesses properties that develop (or the requisite structures for those properties to develop). In the fetus we foresee a being with subsequently developed properties and hold that human being or person valuable in its own right. We understand, at least in broad stroke, how that development goes and thus how the developed human being or person results. Now, it is a relatively easy but not unproblematic step to think that the rights possessed by the developed being are rights that the current being has – because the developed properties have their source in the properties the fetus now possesses. The fetus has rights, it is claimed, because of its potential to develop into the kind of being that we find valuable in and of itself.

To see that this move is at least problematic, consider a reasonable account of the ground of these rights. It is plausible to think that the rights or moral value of the developed being (the human being or the person) supervene on the developed properties possessed by that developed being. Indeed various attempts to ground “human rights” rely on certain developed properties, e.g., rationality, autonomy. But it is not at all obvious that the properties a fetus currently possesses are the same properties required for the supervening rights. This “developmental space” between fetal-possessed properties and subsequently possessed properties (which develop out of the current fetal-possessed properties) would then be enough to break the conceptual or logical connection between antecedent and consequent in the Potentiality Principle.

Thus, arguments for the moral impermissibility of abortion that rely, either overtly or tacitly on the Potentiality Principle are certainly not compelling and may indeed be question-begging.

2. Noonan

In his seminal essay, an “Almost Absolute Value in History,” John Noonan argues that at the moment of conception, the zygote is a human being, having full moral status, including the right to life. Abortion at any time then is the taking of an innocent human life, and since it is thus a violation of the right to life, abortion is morally impermissible. This latter argument (or versions of it) has become textbook; indeed it is fairly simple to represent it as an AAA-1 syllogism:

The deliberate taking of an innocent human life is morally wrong.

Abortion is the deliberate taking of an innocent human life.

Hence, abortion is morally wrong.

This argument is of course valid. The burden of Noonan’s essay is to argue that the fertilized ovum is a human being at the moment of conception. Noonan takes it that as a human being, the zygote (later the embryo and fetus) has all the human rights you or we have, including the right to life. Noonan sees his task as arguing that the moment of conception is a relevant objective discontinuity, which shows that it is reasonable to count even the zygote has a human being. The argument laid out above thus depends on the claim that any human has full moral status and the claim that “human-beingness” or humanity begins at conception. Below we will see a challenge to the claim that being human carries with it full moral status. For the moment, we are interested in Noonan’s attempt to argue that humanity – and hence full moral status – begins at conception.

Noonan argues that “real world” probabilities are a crucial factor in moral discourse. He proffers an analogy to “buttress” his position that humanity begins at conception and hence that abortion is immoral. We quote him in some detail:

Moral judgments often rest on distinctions, but if the distinctions are not to appear arbitrary fiat, they should relate to some real difference in probabilities. There is a kind of continuity in all life, but the earlier stages of the elements of human life possess tiny probabilities of development. Consider for example, the spermatozoa in any normal ejaculate. There are about 200,000,000 in any single ejaculate, of which one has a chance of developing into a zygote. Consider the oocytes which may become ova: there are 100,000 to 1,000,000 oocytes in a female infant, of which a maximum of 390 are ovulated. But once spermatozoa and ovum meet and the conceptus is formed, such studies as have been made show that roughly in only 20 percent of the cases will spontaneous abortion occur. In other words. the chances are about 4 out of 5 that this new being will develop. At this stage in the life of the being there is a sharp shift in probabilities, an immense jump in potentialities. To make a distinction between the rights of spermatozoa and the rights of the fertilized ovum is to respond to an enormous shift in possibilities. For about twenty days after conception the egg may split to form twins or combine with another egg to form a chimera, but the probability of either event happening is very small.

It may be asked, What does a change in biological probabilities have to do with establishing humanity? The argument from probabilities is not aimed at establishing humanity but at establishing an objective discontinuity which may be taken into account in moral discourse. As life itself is a matter of probabilities, as most moral reasoning is an estimate of probabilities, so it seems in accord with the structure of reality and the nature of moral thought to found a moral judgment on the change in probabilities at conception. The appeal to probabilities is the most commonsensical of arguments, to a greater or smaller degree all of us base our actions on probabilities, and in morals; as in law, prudence and negligence are often measured by the account one has taken of the probabilities. If the chance is 200,000,000 to 1 that the movement in the bushes into which you shoot is a man’s, I doubt if many persons would hold you careless in shooting; but if the chances are 4 out of 5 that the movement is a human being’s, few would acquit you of blame. Would the argument be different if only one out of ten children conceived came to term? Of course this argument would be different. This argument is an appeal to probabilities that actually exist, not to any and all state of affairs which may be imagined. (emphasis ours)

The analogy is questionable. In the case involving a “4 out of 5” chance that the movement in the bushes is that of a human being, it is clear that the action is blameworthy. It is blameworthy because it involves the probable killing of an actual human being.

There are two different ways we might see the Potentiality Principle at work in Noonan’s argument, depending on how we interpret certain of his claims. He claims that at conception there is a 4 in 5 chance that “this new being will develop.” One wants to ask: “Develop into what? And why does this matter?” Noonan cannot respond that it will develop into a human being – for the simple reason that, according to Noonan, it already is a human being.

Indeed if we take his development claim seriously, it seems to undermine Noonan’s argument fertilized ovum is indeed fully a human being (and hence possessing the right to life). Why? Because if the zygote already has full moral status, further development doesn’t matter! The 4 out of 5 objectively probable development is irrelevant – on Noonan’s own view. It thus becomes pressing to understand why this zygote – in so many ways different from the whatever stage of the developed being Noonan has in mind – should be accorded full moral status.

It is thus difficult to understand the point of the development claim. Yet that Noonan invokes “development” reveals how easy it is to slide, or better, to import future developed properties to underwrite the moral status of the current zygote. Our suspicion is that Noonan has implicitly relied on the Potentiality Principle, despite his official position explicitly rejecting such reliance. That is, Noonan wants us to see the zygote in the same way we see the developed being. Implicitly his claim is thus that this zygote potentially has the properties of the developed being. Noonan is thus not relying merely on a dramatic shift in objective probability. He is fact also relying on the thought that this zygote is potentially like that developed being. Clearly, however, the moral wrongness of the probable killing of the developed being does not underwrite the actual killing of a being with the potential to become a developed being. The two situations are morally comparable only if it is assumed that probable persons have the same or similar moral status as actual persons. It is simply not clear that Noonan has established the former rather than the latter view. Thus, the argument seems to presuppose the validity of the Potentiality Principle. If the Potentiality Principle is suspect or worse, false, then the argument fails.

Suppose, however, that Noonan resists this interpretation, claiming that human beings continue to develop unlike, say, spermatozoa. From conceptus to late stage embryo, we are seeing the continued development of a single being; his point is rather that whatever moral properties the late stage embryo has are also had by the current conceptus because it is but one kind of being undergoing development throughout. But again, why should this continued development matter? It is our suggestion that here Noonan is again implicitly relying on a version of the Potentiality Principle, and he does so in either of two ways. He might be taken to mean that the “human-making properties” of the later stage embryo or fetus underwrite the requisite humanity of the zygote, thus insuring its moral status. Or he may implicitly be relying on the idea that the more clearly vouchsafed moral status of the developed being underwrite the moral status of the zygote. This introduces of course the connection between genetic humanity and moral status and is challenged by later writers, e.g, Mary Anne Warren and Judith Jarvis Thompson. To the extent, however, that Noonan relies on the Potentiality Principle his “probability argument” is suspect. The full force of these comments will be more apparent after we consider Noonan’s reliance on the genetic code criterion of humanity.

Noonan also understandably criticizes the viability criterion articulated in Roe, since his argument requires that viability is not the criterion of humanity. The Court held that:

With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.

Noonan argues that despite the Court’s implication that viability is easily ascertained,
viability is not amenable to precise determination. Again, we quote him in some detail:

Before an age of so many months, the fetus is not viable, that is, it cannot be removed from the mother’s womb and live apart from her. To that extent, the life of the fetus is absolutely dependent on the life of the mother. This dependence is made the basis of denying recognition to its humanity.

There are difficulties with this distinction. One is that the perfection of artificial incubation may make the fetus viable at any time: it may be removed and artificially sustained. Experiments with animals already show that such a procedure is possible. This hypothetical extreme case relates to an actual difficulty: there is considerable elasticity to the idea of viability. Mere length of life is not an exact measure. The viability of the fetus depends on the extent of its anatomical and functional development. The weight and length of the fetus are better guides to the state of its development than age, but weight and length vary. Moreover, different racial groups have different ages at which their fetuses are viable. Some evidence, for example, suggests that Negro fetuses mature more quickly than white fetuses. If viability is the norm, the standard would vary with race and with many individual circumstances.

Noonan thus holds that the objective variability undermines seeing viability as the criterion of humanity. Unlike conception – which provides a definite and significant change in probable outcome – viability offers a demarcation too blurry to be of significant use in moral argument. It is open to wonder whether Noonan is not guilty of a kind of scope fallacy. While it may be viability varies generally, for any particular fetus, there can be relatively precise determinations of the highly probable ability of the fetus to exist outside the womb.

Noonan offers another “buttressing” argument for the proposition that the right to life attaches at conception, and this buttressing argument has taken on a significance of its own. He appeals to possession of a unique genetic code (although he does not characterize it quite like this:

The positive argument for conception as the decisive moment of humanization is that at conception the new being receives the genetic code. It is this genetic information which determines his 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. (our emphasis)

The possession of a unique genetic code is not necessary for having full moral status. A sentient being with a different genetic code from ours would arguably have rights, as would a human who had a genetic anomaly but who had the mental and moral characteristics associated with a normal adult.

Noonan might reply that in the context of the abortion debate the relevant issue is whether the possession of a unique genetic code is sufficient for rights. It appears, however, that the possession of the genetic code by itself is not sufficient for rights. If it were, then each somatic cell in the human body would have rights, as all cells but germ cells have the full genetic complement. Further, neomorts – individuals that have suffered brain death but whose biological life can be maintained for a time – would have a right to what life can be afforded them. Certainly, their organs could not be harvested for the sake of others. Neither of these two consequences seems acceptable.

It is open to Noonan to object, however, that it is organisms that have a full genetic complement that have a right to life. We take the sense of “organism” here to be that of a group of interdependent cells with a higher global and functional organization. Then one might identify a single sperm as an organism (although this is controversial), but it does not have the full genetic code. Skin cells, while possessing the full genetic code, do not count as organisms.

Identifying the relevant object as an organism with a full human genetic code gets closer to what Noonan needs; nonetheless it is problematic. Noonan argues that the zygote is a human being because it possess its own genetic code that is of the type human being. But that is at best elliptical. Noonan needs to also claim that the zygote is an organism, that is, a group of interdependent cells with a higher global and functional organization. It is arguable, however, this higher organization is understood as the aim or purpose of a developmental process. And we are thus back to the Potentiality Principle.

3. Kushner

T. Kushner argued that the initiation of brain activity is among the options for establishing the point when human life begins. He further claims that the connection between brain activity and consciousness is morally significant, since it is consciousness that explains what we take to be valuable about the notion of life. Kushner emphasizes that the significance of the onset of fetal brain waves is that the fetus, in addition to being merely biologically alive, now “has a life” and can be the subject of experiences:

. . . The important point is that until the infant has developed a brain capable of consciousness it is impossible for such personal development to occur. Conversely, once a human fetus has developed a brain capable of consciousness its biography – its life in the sense of bios – has begun. Thenceforth it has the capacity to be a person and its moral importance rests on that fact.

Given the moral significance of fetal brain waves, Kushner concludes that after their onset the fetus is owed certain moral and legal protections.

Unfortunately, the argument is far from conclusive. It is not at all clear that adult and fetal brain waves signify the same thing. Adult brain waves are legally and morally significant because and only because their presence is associated with what we value in life – the capacity for self-knowledge, to communicate, etc. As Kushner states, these qualities include:

. . . being the subject of a certain life with its accompanying history, nexus of
personal and social relationships, complex patterns of psychological
characteristics, plus the whole fabric of events as they happen to and affect the
individual. Subjects of lives, in this sense, are capable of some degree of
problem-solving, effecting relationships that give satisfaction, benefiting from past experiences to influence present situations as well as being capable of experiencing and expressing a range of emotions . . .

Valuable life comprises possession of these characteristics, and the criterion for determining when someone has lost these capacities has changed over time. Science has narrowed the search for the organ(s) whose function is absolutely necessary for human, as opposed to merely biological, life. It is now evident that the fully developed brain is “truly unique and irreplaceable” with respect to these capacities.

The crucial issue is, however, whether or not the occurrence of fetal brain waves signifies, as it does in the adult, the possession of the valued faculties or merely the potential to develop these faculties. For fetal brainwaves to signify the same thing as they do in the adult, the fetus at eight weeks of gestation would have to have the same capacities as the adult. Kushner’s discussion is ambiguous in regard to this important point, stating both that at the onset of brain waves the fetus is the subject of a life and that it has a developing capacity for being such a subject. In a revealing passage Kushner addresses the fact that while the nervous system is the first to start developing, it is the last system to complete development:

Only gradually in fetal and then infant development does he or she acquire the characteristics of personhood. The process of becoming a person is a lengthy one and even at birth the infant has only some of the necessary psychological attributes such as desires, wants, frustrations and feelings. It will take time for the more complex sets of capacities referred to earlier to developing the course of interaction between the infant and his environment.

The problem for Kushner is that far from being “logically suggested” by the brain death criterion, the argument that human life begins with fetal brain waves would succeed only if the fetal brain were fully developed at the time of the onset of brain waves. However, it actually seems to be the case that the onset of fetal brain waves is an indication that the fetus is developing normally and has the potential to grow into an adult with the attendant capacities.

The dilemma for Kushner can now be made apparent. Either he is guilty of equivocating on the notion of brain waves (the significance of adult vs. fetal brain waves) or his argument presupposes the validity of the Potentiality Principle. But we have already seen good reason to wonder whether one can advert to Potentiality Principle without further argument. Kushner’s appeal then to the onset of brain waves is far from compelling.

4. Marquis

An influential argument by D. Marquis holds that abortion is wrong because it deprives the fetus of a valuable future. Marquis argues that what makes it wrong to kill a normal adult human being is the fact that the killing inflicts a terrible harm on the victim. The harm consists in the fact that “when I die, I am deprived of all of the value of my future”: I am deprived of all of the valuable “experiences, activities, projects, and enjoyments” that I would otherwise have had. Thus, if a being has a highly valuable future ahead of it—a “future like ours”—then killing that being would be seriously harmful and hence seriously wrong. But then, as a standard embryo does have a highly valuable future, killing it is seriously wrong. And so “the overwhelming majority of deliberate abortions are seriously immoral— in the same moral category as killing an innocent adult human being.”

This argument thus attempts to avoid the Potentiality Principle by holding that both the adult and the fetus actually possess the morally relevant characteristic, i.e., the ability to have and enjoy a future. The argument has plausibility as long as it is agreed that the dispositive harm in killing an adult human being is the loss of a future is the actionable harm.

If, however, it is contended that it is wrong to kill an adult because the adult has actual capacities for self-consciousness, etc., that fact would render the argument inconclusive. Given this latter contention, the morally significant issue is the destruction of the adult’s actual, currently-possessed capacities for moral agency, consciousness, etc. If we take this – the destruction of currently possessed, developed capacities – to be the significant harm, then we have an asymmetry between the adult and the fetal case. It is true that we sometimes say things like a person is in the “prime of life,” implying that there is a promising future ahead. But it is open to claim that promising future aside, the morally significant feature of this developed being is that it has these capacities, and they can be manifested now.

On the other hand, the fetus has the potential to develop the significant capacities that are associated with personhood. The “future” of the fetus, if it is allowed to develop, will result in the actual possession of certain morally relevant capacities or dispositions.

It is crucial, however, not to conflate currently possessed properties, which can develop into a capacity with its consequent manifestations and the developed properties that underlie the actual (fully developed) capacity. For these are not necessarily the same properties. Hence, the capacity the fetus has to enjoy certain future experiences is not obviously the same capacity possessed by the eventual adult to enjoy certain experiences. To assume that they are the same capacity is a type of equivocation that we think rests ultimately on the assumption of the Potentiality Principle. Clearly a fetus has the “capacity” to go to college, study accounting, become a CPA. But this is surely a different capacity than that possessed by a graduating high school senior who has been accepted by his preferred college. For the latter relies on many and complicated developed actual properties that the high school senior possesses, which the fetus obviously does not possess. In this sense, we might distinguish between the capacity the fetus has and the “manifestation” of that capacity in the future. But this future manifestation will clearly require the possession of other properties and capacities obviously not currently possessed by the fetus.

Here is a slightly different way to make this point. We suggest there is a qualitative difference between the futures of an adult and a fetus. We grant these two points: a fetus has a future and has certain properties that subserve such a future. The important point here, however, is that the requisite properties (for such a future) are quite different from the properties of an adult that subserve such a future. Consider being an accomplished pianist. (We are assuming that there is some genetic basis for “musical talent.”) In the adult, it is easy to imagine an actual and current disposition – find a Steinway, sit Georgie down, and Gershwin compositions begin to be musically realized. And we can expect Georgie’s future to realize many more Gershwinian compositions. But Georgie’s dispositions/capacities manifest themselves in a very present talent. To lose Georgie now through some killing is not only to take away some valuable future, but to take away a valuable talent. Upon hearing of Georgie’s unjustified passing, we would not only be warranted in claiming that we have lost a great future, but we would most certainly be warranted in sadly proclaiming, “I can’t believe he’s gone; he is such a great talent.” Barring any future contributions to the musical world, there is a value in his currently and often manifested capacity; there is value in his present.

Now consider the fetus. While it is in some sense true that the fetus has the capacity to be the next Horowitz or Gershwin, it is at best misleading to say that the depriving the fetus of its future is the same as depriving the adult Georgie of his future. Notice that there is considerable genetic development that must still occur, not only in the womb, but outside as well, before we can come to the point of the kind of training that we associate with musical talent. (Acknowledging of course that there are prodigies who require no particular external training; in a roundabout way though, this underscores our point.)

The fetus has a future. Given sufficient embryonic development and post-birth continued genetic development and conducive environments, it will have a future. But it is not in the least obvious that we need to appeal to the future of an adult in order to ground the right to life. And if this is right, then the argument against abortion based on “similarity of futures” fails.

The “future like ours” approach has also been criticized on the basis that it implies that the death of an embryo or fetus is worse than the death of a child or an adult. This is because the embryo or fetus has more of a future than the child or adult ¬

We have been considering three types of argument to show that full moral status attaches from the moment of conception. If any of these arguments were compelling, the relevance for Roe would be obvious: Roe would legally sanction an immoral act. But this section shows – we take it – that these arguments are not compelling, and in some cases, are far from being so.

III. Pro-choice Arguments

1. Thomson

In her well known essay, “A Defense of Abortion,” J.J. Thomson grants for the sake of argument that the fetus has a right to life, but defends the permissibility of abortion by appeal to a thought experiment:

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. If he is unplugged from you now, he will die; but in nine months he will have recovered from his ailment, and can safely be unplugged from you.

Thomson argues that the woman may now permissibly unplug herself from the violinist even though this will cause his death. The right to life, Thomson contends, does not entail the right to use another person’s body, and so by unplugging the violinist she does not violate his right to life but merely deprive him of something—the use of your body—to which he has no right.

For the same reason, Thomson contends, abortion does not violate the fetus’s right to life but merely deprives the fetus of something—the use of the pregnant woman’s body—to which it has no right. Thus, it is not that by terminating her pregnancy a woman violates her moral obligations, but rather that a woman who carries the fetus to term is a “Good Samaritan” who goes beyond her obligations. Thomson thus holds that although there is a general duty not to kill others, there is no general duty to save others.

The violinist case is an intuition pump, a helpful term borrowed from Daniel Dennett. The rhetorical force of the case is obvious. As Dennett notes, however, set up the intuition pump in one manner and you get one kind of result; set it up differently, and it might yield an entirely different result. Applied here, it is neither clear what Thomson’s use of the violinist case shows nor is the principle relied upon for that showing.

Thomson appears to want to claim that a person’s right to life does not preclude, under certain circumstances, another taking certain actions that predictably and reliably result in the death of the person. And it is easy to see one principle that legitimizes such actions – self defense.

Thomson does not explicitly invoke self defense, and later we will try to tease out why. For the moment note that even the general principle of self defense has caveats. Arguably Mary may justifiably stab Tom – causing his death – if Tom has been beating her and now comes at her with a belt. It is less clear, however, that if Tom has passed out from drinking, becomes barely conscious long enough to grab some object, staggers toward Mary, and as he is again passing out and collapsing, she stabs and kills him, when the threat could have been avoided by merely stepping aside, that this killing is justified. That we can easily imagine these cases more fully described, rendering our initial judgments more controversial, evidences the limits of the principle of self defense in justifying the moral permissibility of some act that takes the life of a being possessing a right to life.

Does it matter that a person arranges circumstances in such a way so that threats to one’s life or well-being are likely to occur? Imagine a variation on a theme from the movie Death Wish. Setting aside the motivation of the lead character, if he deliberately puts himself in situations where his well-being or life may be threatened so that he might kill to defend himself, is it so clear that his actions are vindicated by the principle of self defense?

Or consider a variation of a scene in a Die Hard movie. Suppose our character simply prefers a kind of excitement and experience not readily available at the community dance or the local golf course. Thus, he goes to a certain New York City neighborhood, wearing a sign with some highly provocative and incendiary message. Imagine further that our character is aware that behaving in this way might not only bring about some heated verbal exchanges with residents of the neighborhood, but it might provoke some actual and serious threat to his mental and/or physical well-being. But our character does not desire this result. He just wants the excitement, not the threats to his physical or mental well-being. Still he is aware that such threats might occur. This does not trouble him, however, since he has someone else who will step in at the appropriate time and “defend” him, even taking the life of another if need be. Is it so clear that “self defense” (or “self defense by proxy”) applies here?

(Note well: we are not suggesting that the neighborhood residents are justified in attacking our imagined movie character. Our character hopes some excitement will occur and is aware that something more than may occur. Still the example implies nothing about whether the others would be justified in causing mental and/or physical harm to our character.)

Now consider the sort of case exemplified by Thomson’s violinist. I am “commandeered” by another. More precisely, I am commandeered by another so that my body may be used – for a time – so as to preserve the other’s life. The other’s continued existence depends upon my compliance, my willingness to allow the use of my body.

Thomson apparently wants to hold that it matters how one person’s continued existence comes to depend upon another. And clearly she thinks the violinist case is an illustration of a case where the person’s dependence does not constrain the actions of the other, and that this applies straightway to the case of abortion.

Yet it is not at all clear how we get to Thomson’s desired result. Again, it matters how we understand the violinist case. As the above movie cases illustrate, it matters how we fill out the scene. Consider that we might ask, for example, why it is that the violinist is hooked up to me. If there is some other way that the violinist might be saved, e.g., being hooked up to, say, my willing neighbor, does that matter to our understanding of the case? Does it matter what I do, such that it comes about that it is me hooked up to the violinist? Would it matter if in the past that I had said I would be willing to be so hooked up, but recently had come to have doubts? Does it matter how we describe how I am “hooked up” and the difference that makes in how I conduct my life? Different “penumbra” may yield different intuitions.

It is not easy to see what precise argument Thomson has in mind. We are prepared to hazard that the following is close to correct as a summary of the intended argument:

The right to life is not absolute; there are ceteris paribus conditions attaching to this right (as “normal” self defense cases illustrate). Temporarily taking control of one person’s body so that another may benefit from it so as to continue to live would nullify the cp clause (the “other things being equal” clause) if it is done so without first obtaining consent of the person’s body who is to be used. In such cases, one is entitled to discontinue this existence-supporting arrangement, even if it brings about the death of the other. The violinist case is a case in which the cp clause is nullified. So, a person is justified in ending the connection between that person’s body and the violinist. Similarly, at least some abortions are justified because the woman did not consent to the fetus using her body. (We set aside issues about explicit vs. tacit consent and nothing below depends on this.)

If there is something other than the absence of consent that nullifies the cp clause, Thomson has not said what that is. And before this proposed argument is even moderately compelling, we need to know the basis for the cp nullification. She could have appealed to self defense, but does not. Assume then that it is the absence of consent that worries Thomson about the violinist case.

If so, then we claim that the analogy between the violinist case and abortion breaks down. Consider that the violinist or his apparently capable proxies may request the use of my body. They fail to do so; hence, according to Thomson, I have no moral obligation to permit the continued use of my body. It is morally permissible then to “disconnect” even if the discontinued use of my body will result in the death of the violinist.

On the face of it, the principle “no consent, no obligation” is not obviously true. Imagine a soldier, wounded in battle, awakes to find himself with a tube running from his arm to the arm of another wounded but unconscious soldier in the bed next to him. He is told that he is the only person in the vicinity with the appropriate blood type, there was no way to obtain consent, so “we need to leave you hooked up for a relatively short period of time, making it highly likely the other soldier will survive. You may suffer some discomfort and inconvenience at times and disconnecting you at the proper time might be very uncomfortable.” We suggest that it is not at all clear that there would be anything immoral about forcing the soldier to remain hooked up to the other soldier.

Our claim is that the no consent, no obligation principle requires some defense. Specifically it requires some defense that it applies in either the violinist case or the abortion case. (Indeed the “no consent” principle might be thought of something as an intuition pump itself: first we want to know what has not received our consent.) More to the point, allowing that the principle applies in the violinist case does not straightforwardly show that it applies in the abortion case. The application of the principle may well be as controversial as the conclusion about abortion it is intended to support.

The abortion case is not obviously a case where the “no consent, no obligation” principle applies. On our normal understanding of “consent,” it is simply not clear that consent makes sense in being applied to the abortion case. But then the analogy between violinist and fetus breaks down, and Thomson’s argument is at least unsound.

First notice – there is simply no being (and consequently, no proxies for that being) that can request consent. Fertilized ova cannot request permission to use a uterus. Nor is it obvious that there is some other person that may request consent. By itself, this should make us wonder at the very least about the applicability of the violinist case to abortion. There was at least the possibility of requesting consent in the violinist case. The wounded soldier case thus appears to be a better suited in application to abortion, but it is not the case Thomson uses.

It is no more promising to think that consent can be understood merely as a “one-sided” affair. Yet it is widely thought that the deliberate use of contraception by the woman is just such “one-sided” refusal of consent. Indeed, Thomson uses the metaphor of putting bars on the window to prevent “unwanted occupation” of the premises, clearly intended as a metaphor for some sort of use of contraception. Suppose then a woman regularly takes birth control pills. Suppose she even tells a “companion” that she does not wish to become pregnant. She has then – it is presumed – refused consent. Refused consent….to whom? And what exactly is she refusing?

Consider the difference in the following two cases (these are actually cases along a continuum, but these two should be sufficient).

As Tom leaves his house one morning, he stands in the front door, and says in a firm and clear voice, “As I begin my walk this morning, I refuse my consent to anyone who might interrupt my walk by suddenly appearing in front of me and collapsing right there on the sidewalk, not only needing me to call 911 but requiring CPR perhaps for several minutes; I say to all of you possible needy persons, I refuse my consent.”

Now the second case: Instead of his doorway assertion, Tom takes out of a drawer and places in the armband that holds his iPod, a signed, notarized document directing any and all medical personnel that should he somehow become incapacitated or even die, he does not consent to using his organs for any transplant, medical, or scientific procedure.

The second is clearly a case of refusing consent. It directs specifiable, if unnamed persons, to avoid performing some action(s). These are not possible persons so directed. They are actual persons, who under appropriate circumstances, could have the refusal of consent apply to them and actions they might perform.

The first case seems different, however. It is not obvious that this is a case of refusing consent. It is certainly a case of stating one’s desire not to have one’s walk interrupted by someone else’s medical emergency. But is it refusing consent?

Consent (or refusing), qua performance, requires either some saying or doing. What might be the analogue of Tom’s doorway pronouncement for a woman? Perhaps the woman says prior to (during? immediately after?) having intercourse, “I refuse/give my consent to any fetus that might come about as a result of these actions to use my body.” Or one can think that making use of some contraception is indication of refusing/giving consent.

But (refusing) consent requires something further, namely, some being to whom consent is given or withheld. And this makes the application of the notion of consent rather odd. Refusing consent to the fetus can occur only after the fetus has already “accomplished” the very thing that is being refused. For the fetus to be the object of the consent refusal (the being for whom consent is refused), the very thing that is being refused must first come about.

If Tom refuses his consent to organ donation, there is something that doctors can avoid doing. If I refuse consent to the violinist’s proxies, there is something they can avoid doing. But to be the target of refusal (analogous to the medical personnel specified in the notarized document), the fetus must do the very thing that it is being directed to avoid.

Put simply, it looks as though in the case of pregnancy, refusing consent is puzzling at best, extremely perplexing at worst.

There are three things worth noting about our understanding the consent model application to abortion. The first is the most important. It could be suggested that the above misunderstands Thomson’s use of consent. Notice that in the violinist case, she has not asserted the occurrence of any prior refusal. Once discovering how her body has been “commandeered,” she may then express her refusal, and this is sufficient. Similarly, once discovering existence of the fetus, a woman is entitled to refuse consent to continued use of her body.

Note that it is difficult to understand Thomson’s use of the “bars on the window” metaphor unless this is understood as a sort of prior refusal of consent. It is clearly an expression of preference, but still it is open to ask if it is refusing consent. Further, it is difficult to understand the violinist case as a case of not having given or refusing consent prior to being hooked up. Indeed the most natural reading of that case is that absence of prior consent must be understood as refusing consent. Otherwise, it is difficult to know why, when demanding to be unhooked, the proxies cannot simply assert that since consent was not refused, they were free to make use of the person’s body. That the argument can continue from here shows that there is much about the consent model that needs explanation and defense before it can be applied as a justification for abortion.

The second and third points are a bit easier. Unless Thomson is granting (at least for the sake of argument) that the fetus is indeed a person capable of requesting consent, and to whom consent might be refused, it is hard to know why she uses the violinist example. Third, admittedly this sounds like treating the fetus as a homunculus. But this comes about only in an attempt to understand how it is that Thomson thinks refusing consent applies in the case of abortion. Once again, the fetus can be the target of consent refusal only if the very event being refused first occurs.
The preceding shows that Thomson is not entitled to claim – without considerable further explanation – that the consent model applies to abortion. Hence, the violinist case does not support the conclusion she desires.

Others have taken up Thomson’s argument. Two of the more substantial objections are: 1) In the case of pregnancy, the “violinist” is not a stranger but the woman’s child; and 2) In the context of a special relationship such as that between a parent and child, the distinction between killing and letting die is irrelevant.

Possibly the most influential defense of Thomson’s argument has been proffered by David Boonin. In regard to the child versus stranger argument, he states:

………….. it seems to be utterly mysterious how the mere fact of biological relatedness could, in and of itself, generate such a difference in moral obligations. It would not be mysterious if the claim turned on the fact that the woman did some voluntary action that led to the conception of the child, since the moral salience of the distinction between voluntary and involuntary actions is relatively straightforward. ………. It seems right to say that the woman “begot” the child in cases of voluntary intercourse, but not so in the case of pregnancies arising from rape. To beget a child is to cause it to exist, and in rape cases the woman does not do anything to cause the child to exist. But if this were the explanation of the moral relevance of the biological relation between parent and child, then the stranger versus offspring objection would simply reduce to the tacit consent or responsibility objection all over again. And while it would certainly have a high degree of prima facie plausibility, it would also remain subject to all of the difficulties I identified with those objections in Sections 4.3 and 4.4. In addition, if the objection were construed in this way it would fail to apply to rape cases, and it is clear that the stranger versus offspring objection is meant to apply to such cases as well.

Boonin reiterates his objection to what he terms the “responsibility objection”: the woman has a responsibility to the fetus because she was in some sense responsible for the existence of the fetus and has obligations thereto. Boonin’s argument against the responsibility argument relies on two cases that he considers variations of Thomson’s violinist case.

Boonin’s argument turns in part on his identifying two senses of responsibility. The first, sense (1), says that a person is responsible in the sense of being responsible for another’s existence. Sense (2) is that a person is responsible for another’s neediness, given that the other already exists. Boonin offers then the following case:

Imperfect Drug I: You are the violinist’s doctor. Seven years ago, you discovered that the violinist had contracted a rare disease that was on the verge of killing him. The only way to save his life that was available to you was to give him a drug that cures the disease but has one unfortunate side effect: Five to ten years after ingestion, it often causes the kidney ailment described in Thomson’s story. Knowing that you alone would have the appropriate blood type to save the violinist were his kidneys to fail, you prescribed the drug and cured the disease. The violinist has now been struck by the kidney ailment. If you do not allow him the use of your kidneys for nine months, he will die.
In Imperfect Drug I, you are responsible in sense (1) for the fact that the violinist now stands in need of your assistance. You are responsible, that is, for his existence. You did a voluntary action such that had you not done it, the violinist would not now exist. If you had not given him the drug, he would not now exist. But you are not responsible in sense (2) for the fact that the violinist now stands in need of your assistance. You are not, that is, responsible for his neediness, given that he exists. It is not the case that you did a voluntary action such that, had you not done it, the violinist would now exist and not need your assistance in order to survive. For there was no course of action available to you seven years ago that would have caused it to be the case both that the violinist would now be alive and that he would not be in need of the use of your kidneys. So you are responsible for the needy violinist’s existence, but you are not responsible for his neediness, given that he exists. This is what makes Imperfect Drug I importantly different from what I will call Imperfect Drug II:

This is the same as Imperfect Drug I, except that you could also have given the violinist a perfect drug that would have cured him with no side effects. But out of indifference or laziness you chose to give him the imperfect drug. The violinist has now been struck by the kidney ailment. If you do not allow him the use of your kidneys for nine months, he will die.

In Imperfect Drug II, you are responsible for the fact that the violinist now stands in need of your assistance in both senses. If you had not voluntarily given the violinist one or the other of the drugs, he would not now exist. And if you had not voluntarily given him the imperfect drug rather than the perfect drug, he would now exist and would not be in need of your assistance in order to survive. So in Imperfect Drug II, life that was available to you was to give him a drug that cures the disease but has one unfortunate side effect: Five to ten years after ingestion, it often causes the kidney ailment described in Thomson’s story. Knowing that you alone would have the appropriate blood type to save the violinist were his kidneys to fail, you prescribed the drug and cured the disease. The violinist has now been struck by the kidney ailment. If you do not allow him the use of your kidneys for nine months, he will die.

Based on the differences between the two hypothetical situations, Boonin claims that “It is extremely difficult to avoid the conclusion that you do owe the violinist the use of your kidneys in Imperfect Drug II, but that you do not in Imperfect Drug I.” The salient differences reside in the fact – apparently – that in Drug II, there is something else the doctor could do, something else that would both bring it about that the violinist exists and is not needy. It is worth noting that one might wonder about the force of the phrase “given that he exists.” Indeed one might worry that the phrase obscures the difference between the doctor’s responsibility for the violinist’s continued existence and a woman’s responsibility for bringing the fetus into existence in the first place.

But let us continue with Boonin’s argument. He claims that these two drug cases show that a woman does not have a responsibility to the fetus, even in cases of voluntary intercourse:

A woman whose pregnancy is the result of voluntary intercourse, that is, is responsible for the existence of the fetus, but is not responsible for the neediness of the fetus, given that it exists. If the good samaritan argument succeeds in rape cases, therefore, the responsibility objection fails to show that it does not also succeed in nonrape cases as well.

In a footnote, Boonin anticipates the “responsibility objection,” namely that the woman could have avoided responsibility by refraining from intercourse. Crucially he then claims that this implies “that you have acquired an obligation to provide aid to the violinist in Imperfect Drug 1,” since you couldn’t bring about the existence of the violinist without making him dependent on you, but you could have made it the case that the violinist doesn’t exist – don’t administer the drug in the first place.

Thus, Boonin implies that the option that the woman could simply refuse to engage in intercourse results in the consequence that it would have been permissible to fail to give the drug in Imperfect Drug I. Boonin claims this latter contention is false – i.e. there was an obligation to give the drug in Imperfect Drug I.

It is important to be clear about this. Boonin claims that according to the objection, the woman could avoid moral responsibility for the fetus by simply refusing to have sex. Boonin then claims that a consequence of this position is that the doctor could have refused to give the drug in Imperfect Drug I. And our intuitions are that the doctor was obligated to at least administer the drug in that case. So, according to Boonin, the “avoiding responsibility by avoiding sex” objection must be mistaken.

It is worthwhile to make the logic of this a bit more explicit. Boonin claims that advocates of the responsibility objection are committed to the truth of the following conditional, call it (R):

(R): If a woman can avoid moral responsibility by simply refusing to have sex, then the doctor in Drug I could avoid responsibility simply be refusing to give the drug.

Boonin claims that the consequent is obviously false: the doctor is obligated to give the drug. He then claims that the falsity of the consequent shows that the antecedent is false, namely, that it’s false that a woman avoids moral responsibility by refraining from sex. But is there any reason to think that advocates of the responsibility objection must accept the truth of (R)? No, there is not.

First Boonin fails to explain why the alleged implication holds. Boonin states that giving the violinist the drug in Imperfect Drug I is what the violinist “would choose,” and giving him the drug is the state of affairs that would “leave him best off.’

In order to assess his argument, it is important to note the ground of the doctor’s obligation. The reason that the physician in Imperfect Drug I had a duty to provide the opportunity for continued existence to the violinist is based upon the facts that:

1. the violinist is an already existing person with a right to life,

2. the violinist is in a fiduciary relationship with the physician, and

3. based upon that duty, the physician had a responsibility to provide treatment that is in the best interests of the patient.

(2) and (3) are the core basis of the physician’s responsibility to the violinist. There is an institutional setting that must be acknowledged to make any sense of the obligation to the violinist. Thus, regardless of the fact that the violinist may require the use of the physician’s kidneys in the future, the physician had a duty to a specific existing person to give the drug in Imperfect Drug I.

It does not follow, however, that the physician has a duty to provide the use of his or her kidneys when the violinist subsequently is in need of their use. Note that there is nothing in (1) – (3) above, which ground the physician’s obligation to provide treatment, that also supports his alleged obligation to provide the future use of his kidneys. And this absence of a further future obligation holds, even on the assumption that a woman can avoid responsibilities to the fetus if she forgoes sex. The difference between the two cases lies in the fact that there is a duty to provide the drug in Imperfect Drug I, but there is no duty to have sex. There is then a clear asymmetry between the woman’s and the physician’s cases. It then becomes very difficult to see why advocates of the responsibility objection are committed to the truth of (R). Thus, a decision by a woman to abstain from intercourse to avoid incurring obligations due to the dependence of the fetus does not have any implications for Imperfect Drug I.

It is important to be clear about this. Suppose a woman forgoes intercourse. No rights are violated in such a case because there is no duty to the possible fetus that may be conceived to in fact be conceived. That is, there is no duty for her to have intercourse and cause the existence of the fetus. There is clearly no duty for her to have sex. Suppose she has sex, however, and the fetus is conceived. Then clearly it will be dependent upon her. It seems eminently reasonable to claim that she is causally responsible for the fetus’s existence and its dependency. And there clearly was a way for her to avoid making it the case that the fetus exists in the first place, a way that would not violate any other obligations she had. She could simply have abstained from having intercourse. It is reasonable to hold then that the woman has acquired an obligation to provide aid to the fetus. Therefore, Boonin fails to defeat the objection he interposed.

To recount. According to Boonin, the responsibility objection amounts to the contention that the woman incurs an obligation to provide aid to the fetus precisely because there was no way for her to make it the case that the fetus exists without making it the case that the fetus exists in a state of dependence on her. The responsibility objection holds that this contention constitutes a foundation for the ascription of moral relevance to the biological relationship between the woman and the fetus. But Boonin wants to discount the significance of this biological relationship. Thus, he attempts to argue against the “responsibility objection” by the Imperfect Drug cases.

Yet as noted above there is considerable reason to see the imperfect drug cases as distinct from the conception case – a fiduciary duty to an existing person in those cases that has no parallel in the conception case. The woman does not have any parallel duty to bring the fetus into existence. Hence, Boonin’s argument against the significance of the biological relationship between the woman and her fetus fails. And if this argument (against the responsibility objection) fails, there is reason to doubt Boonin’s defense of the Thomson line of argument.

2. Warren

The late Mary Anne Warren argues that the morally relevant notion is not that of human being, but rather personhood. Being human, she claims, is simply not sufficient for full moral status. Her reasons are for thinking this are perhaps best seen in her further claims about the traits necessary for personhood and that the fetus does not possess the necessary capacities for personhood:

I suggest that the traits which are most central to the concept of personhood, or humanity in the moral sense are, very roughly, the following:

1. Consciousness (of objects and events external and/or internal to the being), and in particular the capacity to feel pain;

2. Reasoning (the developed capacity to solve new and relatively complex problems);

3. Self-motivated activity (activity which is relatively independent of either genetic or direct external control);

4. The capacity to communicate, by whatever means, messages of an indefinite variety of types, that is, not just with an indefinite number of possible contents, but on indefinitely many possible topics;

5. The presence of self-concepts, and self-awareness, either individual or racial, or both.

All we need to claim, to demonstrate that a fetus is not a person, is that any being which satisfies none of (1)-(5) is certainly not a person. I consider this claim to be so obvious that I think anyone who denied it, and claimed that a being which satisfied none of (1)-(5) was a person all the same, would thereby demonstrate that he had no notion at all of what a person is-perhaps because he had confused the concept of a person with that of genetic humanity. If the opponents of abortion were to deny the appropriateness of these five criteria, I do not know what further arguments would convince them. We would probably have to admit that our conceptual schemes were indeed irreconcilably different, and that our dispute could not be settled objectively.

Apparent implications of Warren’s position have drawn the most attention and controversy, but it is worth first noting the following. Though it may be reasonable to assert that the possession of properties (1)-(5) may be a sufficient condition for a right to life, it is unfortunate that Warren simply holds that it is “obvious” that the possession of none of the attributes is sufficient for holding that an entity is not a “person” with a right to life. In effect Warren claims that failure to possess any of these traits disqualifies a being from full moral status. But it can certainly be objected that in selecting these particular traits as constitutive of personhood that Warren has begged the question against those who think a being who doesn’t possess these qualities may still have full moral status. The capacities to have interests or to feel pain, for example, seem independent of these five traits. And these capacities have sometimes been cited as sufficient for the right to life. Unfortunately Warren gives us no reason to prefer her list to these or other criteria for moral status.

In a Postscript to her essay, Warren addressed the argument that her position justifies not only abortion at any stage of development, but also infanticide. She grants that “[a] newborn infant is not a great deal more personlike than a nine month fetus.” And she further concedes that her argument implies that neither infanticide nor late term abortion is the killing of a person. She claims, however, that unlike a late term fetus, the “deliberate killing of viable newborns is virtually never justified,” even though neither killing a fetus nor killing a newborn is the killing of a person. According to Warren part of the reason for this is “neonates are so very close to being persons.” Since they are so close, killing them:

requires a very strong moral justification as does the killing of dolphins, whales, chimpanzees, and other highly personlike creatures. It is certainly wrong to kill such beings just for the sake of convenience, or financial profit, or “sport.”

This response is striking both in how much it leaves unexplained and how much it may end up conceding. She says that newborn infants are “very close to being persons.” We can of course wonder what this “very close” comprises. More importantly, we may well wonder why a nine-month fetus is not similarly “very close” to being a person. Further, Warren seems to equate the killing of newborns with the killing of dolphins, etc. This position at least requires more argument in support.

Warren also claims that there are moral restrictions on how we may treat “personlike” creatures. Then notice. If a late term fetus is sufficiently like a newborn infant to count as personlike, and there are moral restrictions on how we may treat them (e.g., when they may be killed), then it would appear that there could be at least some restrictions on the moral permissibility of late term abortions. Thus, her response to this worry about her argument seems decidedly uncompelling.

Warren claims that there are two other reasons sufficient to sustain prohibitions on infanticide. First, she claims that “in most cases” there are plenty of people willing to care for an “unwanted” newborn infant. “Needless destruction” of the newborn then “deprives some person or persons of a source of great pleasure and satisfaction, perhaps severely impoverishing their lives.” Second she claims that “most of us value the lives of infants…” and that so long as we are willing to bear the costs, “it is wrong to destroy any infant which has a chance of living a reasonably satisfactory life.”

In this argument, Warren seems to suggest that as long as other individuals would provide financial support for newborns, it is wrong to kill them. The blameworthiness (of such killings) is based upon the interests of those who would support the baby, not on the rights of the baby, as it does not have a right to life. It is difficult to see how this argument is valid, however, given that the infant does not have a right to life. It is difficult to see how it could be a serious offense to let an infant die or even to kill it, insofar as only the sentiments of other persons are offended. Imagine that we have purchased some prized work of art for the purpose of destroying it as part of a You Tube video. Others protest, even offering us a tidy profit, if we will sell them the work. We refuse. We film our destroying of the art work, uploading the video of the destruction to You Tube. Have we done anything immoral? Clearly not. But, it will be objected, there is a significant difference between the work of art and the newborn infant. The latter is “personlike” in a way that the work of art is not. And this is precisely our point. Warren’s argument may look valid, but that is only because she is trading on the “personlike-ness” of the newborn infant. Without the personlike-ness, there is nothing compelling about the “other persons’ interests” argument. With it, there is nothing to distinguish the newborn infant from the very late term fetus.

Warren seemingly attempts to dismiss this objection, by allowing that even if infanticide is considered impermissible, late term abortions are permissible:

If these arguments show that infanticide is wrong, at least in this society, then why don’t they also show that late-term abortion is wrong? After all, third trimester fetuses are also highly personlike, and many people value them and would much prefer that they be preserved; even at some cost to themselves. As a potential source of pleasure to some family, a viable fetus is just as valuable as a viable infant. But there is an obvious and crucial difference between the two cases: once the infant is born, its continued life cannot (except, perhaps, in very exceptional cases) pose any serious threat to the woman’s life or health, since she is free to put it up for adoption, or, where this is impossible, to place it in a state-supported institution…….In contrast, a pregnant woman’s right to protect her own life and health clearly outweighs other people’s desire that the fetus be preserved-just as, when a person’s life or limb is threatened by some wild animal, and when the threat cannot be removed without killing the animal, the person’s right to self-protection outweighs the desires of those who would prefer that the animal not be harmed. Thus, while the moment of birth may not mark any sharp discontinuity in the degree to which an infant possesses a right to life, it does mark the end of the mother’s absolute right to determine its fate.(emphasis added)

Warren’s analogy with a serious threat to life or limb as a justification for late term abortion is revealing. Her argument is based upon the concept of self-defense, a point to be further addressed in the next section. The relevant moral difference, according to Warren, between a newborn infant and a viable fetus is not based on differences in their “personlike” properties. Rather it is because the latter but not the former poses a threat to the life or health of the mother. Notice that she pursues this difference as she considers the wild animal analogy: “if the threat cannot be removed without killing it.” It is not clear that Warren sees that this as a serious limitation on the moral permissibility of unrestricted abortion. Indeed, if we accept Warren’s argument at face value, there is no justification for abortion on demand or nontherapeutic abortions. And this apparent consequence is consistent with the holding of Roe that abortion in the third trimester may be proscribed except in cases in which the health of the woman is threatened by the continued gestation of the fetus. Warren’s stated argument then does not justify abortion on demand in regard to third trimester pregnancies. (It may be that the stated argument actually imposes greater restrictions; note that Warren mentions a “viable fetus.” In some cases, as we noted, viability may extend “further back” into the second trimester.)

3. English

Jane English made two significant contributions to the abortion debate, both important for our purposes here. She insisted on the notion of self-defense as the basis for justifying abortions and on the “unhelpfulness” of the concept of person. We will not be focusing on self-defense. Instead we are interested in her treatment of the concept of a person and it’s relevance to the morality of abortion.

English argues that the concept of “person” is both vague and unhelpful in resolving the problem of abortion. She notes that opponents of abortion argue that the fetus satisfies certain sufficient conditions for personhood – having a significant moral status, which includes the right to life – but that:

……… 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. Rather, ‘person’ is a cluster of features, of which rationality, having a self concept and being conceived of humans are only part. What is typical of persons? Within our concept of a person we include, first, certain biological factors: descended from humans, having a certain genetic makeup…. There are psychological factors: sentience, perception, having a concept of self and of one’s own interests and desires… There are rationality factors: the ability to reason and draw conclusions, the ability to generalize and to learn from past experience…There are social factors…Then there are legal factors…Now the point is not that this list is incomplete, or that you can find counter instances to each of its points… There 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 (emphasis added).

We have quoted her at length to illustrate her contention that, as the last sentence claims, we cannot settle on a “single core” of features that are clearly constitutive of a person. In some cases, we might draw on selected features; in others we might draw on different features. Settling on biological/genetic factors (Noonan) or rationality or communicative ability (Warren) are both plausible, but neither is compellingly definitive. We might also point out that settling on one set of factors rather than another may say more about the intended conclusion of an argument rather than the actual constitutive properties of a person.

English also argues that the concept of person is not helpful insofar as it is sometimes permissible to kill persons and also sometimes impermissible to kill nonpersons. Nonetheless, she argues that it is reasonable to assume that, based on similarities to newborn infants, late term fetuses may only be permissibly terminated to “avoid significant injury or death.” Further, early abortions are permissible for much less compelling reasons, due to the fact that the early fetus bears little similarity to a newborn.

English attempts to justify her conclusions simply on the basis of similarities of the fetus to newborns in the third trimester and dissimilarities to newborns in the early stages of pregnancy. While we think that English is right to see differences in moral value at different stages, and hence provide a framework for Roe, we believe that there is a better way to sustain the moral underpinning of Roe..

IV. Vagueness and Accrual

Here we argue that the concept of person – or better, a being that has moral value – need not be abandoned simply on the basis that it is a vague concept. Further, we argue that the vagueness of the concept vindicates the decision in Roe. The fact that “person” may be a vague concept, i.e. cannot be defined in terms of necessary and sufficient conditions, need not indicate that it may not form the basis for judicial opinions such as Roe. Vague terms such as “rich” may be indefinite, but that fact does not imply that extreme examples may not be discerned. For example, it would generally be accepted that a person who has a billion dollars is rich, and a person with one hundred dollars is not rich, other things being equal. Further, there may be no way to determine at what point one becomes “rich” when the person with one hundred dollars is given another dollar per second, but clearly that point would be reached.

We take a moment to point out the similarity between the accrual view and what is known as gradualism, the view that the moral value of the fetus increases as the fetus develops. This theory would support the structure embodied in Roe by positing that early stage abortions are morally distinct from late term abortions, due to the development of the fetus. Warren Quinn’s summary of the position is apt:

The gradualist supposes that our ordinary concepts recognize and make room for processes in which things come into existence and that the motivation behind this is to be distinguished from the very general linguistic considerations that produce vagueness……The resulting picture is this: The fetus is a human being in the making, a partly but not fully real individual human being.

Little instructively amplifies Quinn:

On this view, that is, the human being is always and already there from the start, but only in partial existence. The embryo and early fetus already exist as an organism in empirically determinate form, of course, just as a house in the process of being built [Quinn’s example] already exists in fully determinate form as a “construction.” In both cases, though, the entity is more fundamentally understood by reference to another substance—human being and house, respectively—that it is coming to be. “Organism,” like “construction,” is what Quinn calls a “mock generic”—a sortal we use to mark a determinate reality that, in a further sense, is best understood as a different substance—human being and house—that is gradually coming on the scene.

We agree of course with Quinn and Little that there is a process. Further, an embryo of course differs from an eight-month fetus. And it should further be pointed out that both embryo and late-term fetus are instances of the same type – human being. In this, Noonan is certainly right. No matter which stage of development we select, the organism we see is an instance of the type human being. Our worry, however, is that the Quinn / Little account has yet to explain why it is that moral value accrues as this organism develops.

We are inclined to think Kate Greasely comes closer to a clear articulation of why it is that a 12 week fetus, say, has moral value, but not the same moral value as a 32 week fetus. First, she agrees with English that a cluster of qualities constitutes being a person, but there is no identifiable core; there are no severally necessary and jointly sufficient qualities that can be singled out. The more important point is her distinction between embodiment of human characteristics and possession of the characteristics sufficient for personhood. Just as different individuals may possess differing degrees of those qualities constitutive of personhood, so an early term fetus embodies human characteristics to a different and lesser degree than a late term fetus.

The concept of the embodiment of human characteristics can explain the existence of a “common fellowship” enjoyed by all human beings. Just as individuals can possess characteristics of archetypical personhood to varying degrees, so also can human embodiment be present in varying degrees. This fact would explain the moral and legal prohibition against desecration of human corpses, the prohibition against cannibalism, and the prohibition against sexual and other types of criminal assault against an individual in a persistent vegetative state.

The consequence of the application of the concept of human embodiment for the analysis of the moral status of the fetus is the following, according to Greasely:

Late fetuses do not bear out the constitutive features of personhood any more than embryos do, even if they are more sentient. But they do possess a great deal more of human embodiment. While a zygote possesses hardly more than the genetic coding for a human being, a late-term fetus embodies much of its actual human form.

Thus, it is reasonable, according to Greasely, to confer greater moral status on late term fetuses than early fetuses. We would add that we must also include the embryo and the zygote.

That is, once one accords moral value to late term fetuses because of its embodying human characteristics, then both early stage fetuses, embryos and zygotes must be accorded at least some moral value. It is not simply the potential of a zygote to develop into a fuller embodiment of human characteristics. It is an actual organism, early in the process of development. One consequence is thus seeing an organism that embodies human characteristics as intrinsically morally valuable. Noonan was right about being human as morally valuable. He was mistaken, however, that the value is the same throughout. Both Greasely and English seem to slide toward the idea that late term fetuses have greater moral value because we see something in them close to us. But this cannot be the basis of moral value.

As we have seen, the concept of a person, or a being possessing moral value, is vague. This is not, however, just a linguistic matter. There are matters of fact which justify applications of the term. Better: there are degrees of moral value. Or as McBrayer argues, “ ‘Personhood’ comes in gradations.”

Here we briefly develop what we mean by “vague.” First, we agree with gradualist like Little and Greasley there are no necessary and sufficient conditions for what it is to be a person. More important, a being may fail to be a person in some sense, but nonetheless have moral value.

A second sense of “vague” is perhaps more relevant here. The biological process of fetal development, as pointed out earlier, is continuous. At certain points in this process, it will be evidently true that the fetus possesses a particular property P; at other points it will be evidently true that the fetus does not possess the property P. And still at others, it will be an open question whether the fetus possesses the property. Being able to feel pain is likely such a vague fetal property. The relevant property here should come as no surprise: being a person. So, we are suggesting a view that holds, among other things, since the process is continuous and developmental – and while there may be points in the process where it may be clear that the fetus is or is not a person – there are other points where it will be indeterminate, that is, vague. Thus, we are suggesting, among other things, that in answer to the question whether or not the fetus is a person at 24 weeks, the appropriate answer may plausibly be, “Well…..”

We are suggesting that there is a plausible view that could serve as a moral vindication for Roe. This view rejects the all or nothing views of those like Noonan and Warren, and it has been the burden of much of the preceding to show that those views are not compelling, even if plausible. Still to make out the case that there is a moral vindication of Roe, it is necessary to proffer a basis for justifying the difference in valuation of the status of the fetus as it develops.

The relevant issue regarding fetal development is the logic of the ascription of value to entities that develop over time. The following is a brief gloss of our view of a developmental process.

We understand the process from conception to term as a developmental process. And we understand this phrase in two ways. First, we take embryonic development as a fundamentally biological process. The principal feature of this process (for our purposes) is that it is a continuous process. But it is a “rule-governed” process, guided by the individual organism’s particular genetic structure. The unfolding of this structure – the development – does not have identifiable markers (of whatever sort) of discrete, determinable phases. We can of course talk about “stages” of embryonic or fetal development. But to do so is, in our view, analogous to the structure/function distinction. Given certain contexts and interests, we might treat some family of cells, e.g., cortical sheets in the brain, as a kind of structure, or, given different contexts, we might treat that same family – or view that family – functionally. There is no bright line where structure leaves off and function begins.

Similarly, we might talk about a certain stage of embryo development, such as the Carnegie stages. But that we identify 23 Carnegie stages, rather than 20 or 24 does not in itself reflect some objective fact. And in this sense, Carnegie stages are “arbitrary” points in the developmental process. Although we can clearly note the difference in morphological changes between stages 13 and 23, these changes are continuous rather than discrete. Similarly the “decision” to draw the line between the embryo and the fetus, while not wholly arbitrary, nonetheless reflects an interest of ours, say, in the separation of the fingers. Part of the importance of Carnegie stages, for illustration of the view here, is that it is not primarily a chronological distinction.

This is not unimportant. Indeed part of Noonan’s argument is that “viability” of the fetus does not pick out some uniquely identifiable and objective point in the fetal developmental process. To put the matter somewhat paradoxically, we can be as objective about viability as we want to be. Survivability outside the womb varies as a function of a number of factors, including time; probabilities increase the older the fetus. But there is no way to say that a fetus has clearly reached viability. (Within reasonable limits of course: Clearly an eight month fetus is viable. Neither Noonan nor we deny that.) This feature might be called “vagueness” of the process or the “variability” of the process.

There is a second sense in which we want to speak of the process. As part of the argument that Roe has a moral vindication, we are presenting an accrual theory of value, which says that in some cases, certain beings (objects, organisms – nothing turns on which term is used) become valuable and acquire greater value as they undergo some process. Thus, in this view there is the process of acquiring value, which supervenes on or depends on a number of factors, including being an organism having the DNA of the species type human, and the subsequent biological process of embryonic and fetal development. One consequence of this view is that the more developed a fetus (or embryo) the more value it has acquired. The onset of brain waves at about 24 weeks is a new stage in two processes: the fetal development process and the acquiring value process.

It is important to note that this second sense of “process” precludes identifying an unambiguous dividing line. We can talk about a being at some stage of this process having greater value than a being at some earlier stage. But again, it is variable at which point something acquires value sufficient for X. Thus, it is (part of) the aim of this paper in part to argue that (a) this view of value, especially as it relates to embryonic and fetal development is a plausible view, and (b), given this accrual view of value is plausible, there is then a moral vindication of Roe v. Wade.

The significance of fetal development is not the potential of the fetus to grow and develop. As noted, the Potentiality Principle is dubious. Rather, the fetus accrues moral value as it develops.

Although value is generally not conferred on the basis of potential, it may be conferred on the basis of the degree of “actuality” that the fetus accrues during the process of development. For example, although an individual who will be an attorney in the near future may not practice law prior to being sworn in as an attorney, he or she may function as a Certified Law Student in most states, based upon his or her completion of certain numbers of law courses. Also, an individual may not practice medicine prior to becoming licensed to do so, while he or she may qualify as a Physician Assistant on the basis of completion a certain number of similar courses.

What may be termed the Accrual Principle may be applied in other contexts as well. With respect to inanimate objects that are subject to development over time, value accrues. For instance, a parcel of real property may have a certain value, but the lot with a foundation constructed upon it will, other things being equal, have a greater value. The lot, foundation, and framing of a house will in turn have greater value still, but not the value of the completed house. Similarly, the process of completing a sketch on a canvas, a partially painted canvas, etc., will not have the value of the completed painting. Finally, in a commercial setting, a seed will not have the value of a partly grown tree, which in turn will not have the value of a fully-grown tree.

As a different example, think about the value of a marriage. A marriage that lasts a few days or weeks may have lasted long enough to have some value. But it’s easier to think of a marriage that lasts for several years or even decades as possessing greater value. The felt loss is greater in the latter case because something of great value has been lost. That is not to say that there won’t be some felt loss in the brief marriage. But note that we might easily say something like, “It had such promise.”

It may however be responded that in each of the above cases, the accrual of values is due to the investment of time, resources, and effort by individuals, all of which are irrelevant to the case of the fetus.

In an important essay, R. George and P. Lee argued that the human embryo is the same organism as is the adult, though immature:

[The] claim that human embryos are not human beings, or not “full human beings,” or merely “potential human life,” simply cannot be squared with the facts of human embryogenesis and developmental biology. Briefly, modern embryology shows the following: (1) The embryo is from the start distinct from any cell of the mother or the father, for it is growing in its own distinct direction and its growth is internally directed to its own survival and maturation. (2) The embryo is human, since it has the genetic constitution and epigenetic primordial? characteristic of human beings. (3) Most importantly, the embryo is a complete or whole organism, though immature. From conception onward, the human embryo is fully programmed, and has the active disposition, to develop himself or herself to the next mature stage of a human being. And unless prevented by disease, violence, or a hostile environment, the embryo will actually do so, despite possibly significant variation in its circumstances (i.e., in the mother’s womb). None of the changes that occur to the embryo after fertilization, for as long as he or she survives, generates a new direction of growth. Rather, all of the changes (e.g. those involving nutrition or environment either facilitate or retard the internally directed growth of this persisting individual.

We have already explained our opposition to the Potentiality Principle. But George and Lee present an argument worth considering, which is fairly rendered thus:

1. The embryo is distinct from any other entity;

2. The embryo is human;

3. The embryo is “complete” or “whole” though immature;

4. The embryo directs it own pattern of growth.

5. Thus, at any stage of development, the zygote/embryo/fetus has full moral status.

It is clear however, that the account provided is mistaken or begs the most important questions. First, there is no dispute as to the truth of the first two contentions. The claim in the third proposition that the embryo is “whole” and “complete” is clearly false if interpreted as meaning that the embryo possesses the fully developed physical and, more importantly, the mental properties of an adult person. Perhaps more importantly, the embryo clearly does not posses the same qualities as a nine month old fetus.

If on the other hand the third claim is interpreted to mean that the embryo is “whole” and “complete,” in the sense that it possesses the capacities and properties that entitle a fully developed person to right to life, then the claim begs the question as to the moral status of the embryo. In this connection, the reference to the alleged fact that the embryo “directs himself” (sic) to the next stage of development is patently misleading. The assertion falsely implies that the embryo consciously directs its own development, as a fully developed person might. The assertion, properly considered, is simply a restatement of the Potentiality Principle.

On the Accrual Principle, therefore, fetal development may be seen as the gradual attainment of different degrees of actuality, not merely the possession of potential. The moral status of the fetus would on this analysis accrue as the fetus develops and more closely approximates becoming an actual person. On this analysis, viability is not a proper criterion for personhood as held in Roe. Rather, viability is roughly correlated with the fact that the fetus has achieved a significant level of development such that the fetus is substantially similar to actual human beings. Given that viability merely indicates a certain level of development, it may be reasonable for states to differ to a limited degree in terms of the significance they assign to viability.

Potentiality Principle proponents will be eager to ask, of course, about the nature of this similarity. They will suspect that in answering this question that the door will be open to their saying that we too have relied on the Potentiality Principle. That is, they suspect that “similarity” comprises, among other things, the potential to…..(where the blank is filled in by some property of fully developed human beings.)

But that misunderstands the claim of value accruing as development proceeds. Consider a five month old fetus. It has, on the current view, developed enough and is sufficiently similar to actual persons such that it has now acquired value. In other words, the five month old fetus possesses moral value in and of itself. The point of the phrase “sufficiently similar” highlights our agreement with Greasely. There is a set of characteristics that are possessed by an “archetypical” human being. We hold – as we think other gradualists must as well – two further important points. Already noted is that this archetype is the end result of a development process. Our perhaps more controversial claim is that just as the fully developed being is intrinsically morally valuable, so the actual developing organism at points in the process has acquired moral value. A four month old fetus has an intrinsic moral value because it is has acquired a level of actuality as it has continued to develop toward the archetype.

Thus, we agree that Greasely is right that embodiment matters. And Noonan is right that being a human being – in the sense of possessing an individualized genetic code – matters. Nor need we deny that intrinsic moral value supervenes on natural properties. (We leave that argument to other theorists, however.) And this acquired or accrued value may be enough to warrant proscribing abortion.

The current view differs from Noonan & George, et. al. in that it does not hold that the value comes all at once. Indeed we think such a view is as counterintuitive as the idea that a nine month fetus is devoid of moral status but an hour old newborn is not. Thus we differ significantly from Warren, who holds that a being has to have the relevant properties of – apparently – an adolescent child, e.g., the capacity to converse, to plan, etc. Warren apparently thinks a being actually has to possess those properties. The accrual view, however, holds that abortion may be proscribed in cases where the fetus is relevantly similar. (Again, note the sense of relevantly or sufficiently similar in our view.)

Another way to see this difference is to think of the three views and what it means to have some potential property (= the potential to have the property). For Warren, having some potential property is never sufficient to trump the rights of an actually person. Be as close to an actual person as you please, if a being does not possess the actual (actualized) property sufficient for being a person, it simply can’t “compete” morally with an existing person. George, on the other hand, thinks that once a being has the potential property – no matter how early on the developmental path – that being now has the same moral status as any fully developed human being. On the view presented here, the moral status of a zygote/embryo/fetus having some potential property varies; more importantly, in our view it is having actual properties that make it sufficiently similar to beings that unambiguously have full moral status. That is, the actual properties possessed at some point in development that make it the case that the fetus has the potential to develop into the type of being that has full moral status. Early in development it may not be sufficiently similar to have the requisite value. Further along in development, e.g., five months, the fetus may be far enough along in its development such that it has the requisite value, the requisite moral status.

It is perhaps worth noting that the current view distantly approximates St. Thomas’s view in the respect that moral status occurs after conception. Thomas held that ensoulment did not occur until several weeks into development – approximately six weeks – and longer for female than male. This view was a result of both his hylomorphism and his understanding of an Old Testament text regarding the differences in penalty for someone causing a miscarriage in the early or later stages of pregnancy. Of course, Thomas thought, like Noonan or Warren, that the moral (/spiritual) value came all at once, and with this we disagree.

V. A Note on Accrual and Casey

The fact that “person” or “personhood” is a vague concept, conjoined with the Accrual Principle, demonstrates the plausibility of the Roe framework. The Supreme Court held that abortions are permissible in the first trimester, but that the states may proscribe most abortions in the third trimester, due to the fact that the fetus is viable. Nonetheless, in Planned Parenthood v Casey 505 U.S. 833 (1992), the Supreme Court made what are to this date the most sweeping emendations to the Roe framework. The Court held:

After considering the fundamental constitutional questions resolved by Roe, principles of institutional integrity, and the rule of stare decisis, we are led to conclude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed. It must be stated at the outset and with clarity that Roe’s essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure. Second is a confirmation of the State’s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman’s life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each.

The Court rejected the “rigid” trimester framework, and instead emphasized the distinction between the point of viability and the period preceding viability. Although the Court abandoned the trimester framework, the Court affirmed the right to have an abortion prior to viability, as well as the states’ right to generally proscribe abortions after viability. The Court therefore reaffirmed the judicial determination that pursuant to the woman’s constitutional rights, she has a right to have an abortion until the point of viability. The Court also held that the states’ interest in protecting life vests at conception, but that until viability the states’ interest is secondary to the woman’s right to elect to have the procedure.

The Court held that although the woman has a right to elect to have an abortion until the point of viability:

…it does not at all follow that the State is prohibited from taking steps to ensure that this choice is thoughtful and informed. Even in the earliest stages of pregnancy, the State may enact rules and regulations designed to encourage her to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing the pregnancy to full term and that there are procedures and institutions to allow adoption of unwanted children as well as a certain degree of state assistance if the mother chooses to raise the child herself.

The Court also held that constraints apply to the states’ power to attempt to influence the woman’s decision. It held that the state’s rules and regulations that are adopted to influence the woman’s decision may not be so oppressive as to constitute an “undue burden” on the woman’s exercise of her right to have an abortion. The Court held:

A finding of ‘undue burden’ is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.

In the years since Casey was decided, many state legislatures have attempted to ascertain the limit of the “undue burden” test. Both the assertion that the woman has a constitutional right to have an abortion until viability and that the states have a cognizable right to express preference for life from the point of conception are rationalized by the argument presented herein. Because the concept of personhood is vague, it is reasonable for both the Court to hold that the woman has a right to have an abortion until the point of viability and that the states have right to express a preference for life from conception forward.

There is no contradiction between the two positions in the sense that there is a lexical ordering in terms of the strength of the source of the two positions. The woman’s right to have an abortion is based upon constitutional considerations, whereas the states’ interest in protecting life is less compelling. The latter, though “compelling,” may not override the former.

It would be thus be a mistake to think that the ruling in Casey undermines the analysis here. Since Casey identifies viability as the point at which states may legitimately proscribe abortion, it might be thought that a moral vindication of Roe would be moot. But that is a mistake on two counts.

First, viability is itself a developmental notion. Indeed, we agree with Noonan that viability does not provide a single criterion that can be straightforwardly applied in every case. Of course, the reason for this is that viability does not locate a point, such as conception, or the detection of brain waves, or birth. Rather viability is best understood as picking out a stage. There is nothing odd, either from the perspective of common sense or biology in speaking of “degrees of viability.” Thus, while some identify viability occurring at 23 weeks, about 1 in 5 to 1 in 3 such premature infants will survive, if provided quality care. Likelihood of survival increases noticeably at 24 to 25 weeks, but it is not until 26 to 27 weeks that likelihood of survival increases to almost 9 in 10 (with appropriate care). There is thus a range of a month. (Longer if we consider earliest premature survival, born at nearly 22 weeks.) The obvious difference between 27 weeks and 23 weeks is…development. We are thus identifying a developmental stage when we consider viability.

Second, and equally important, while Casey to some extent supersedes Roe, the moral landscape is unchanged. That is, it remains to provide a plausible moral view, which would sustain Casey. The arguments of Thompson or Noonan must still be met with a plausible account of why Casey, no less than Roe, can be morally vindicated. Our analysis does so not only for Roe, but “carries over” to Casey.

We have undertaken to defend the following claims. Neither arguments for the unrestricted immorality of abortion or the unrestricted permissibility of abortion are compelling. We further take it that the outline of the accrual theory is sufficient to provide a plausible moral theory that might underlie the Roe decision. Thus, we take it there is a moral vindication of Roe v. Wade.

Jack Crumley is a professor of philosophy at the University of San Diego.  Prior to arriving at USD in 1989, he was for three years visiting assistant professor at Tulane University.  He has teaching and research interests in epistemology, philosophy of mind, metaphysics and Plato, and has recently been teaching neuroethics. He is the author of An Introduction to Epistemology, 2nd ed., (Broadview) A Brief Introduction to the Philosophy of Mind (Rowman & Littlefield). Introducing Philosophy: Knowledge and Reality (Broadview), Metaphysics: An Introduction (Broadview, forthcoming 2019). 

Gary Jones is a professor of philosophy at the University of San Diego, and a member of the California Bar Association. He has teaching and research interests in philosophy of law and bioethics. His publications include Bioethics in Context: Ethical and Legal Issues in Health Care with J. DeMarco (Broadview), Bioethics in Context: A Casebook with J. DeMarco, (Broadview), and Ethical and Legal Issues in Nursing (Broadview, forthcoming 2019).