In 2014, Stephen Merchant raised a difficult question on Real Time with Bill Maher. “We [probably meaning the British] have more or less figured out the big issues,” he said. “We’re just fiddling with the small print … [so] why are you [Americans] still talking about abortion?”
Why is America still talking about abortion? Why can’t Americans agree on what we Europeans supposedly solved decades ago? As Merchant spoke, I probably nodded along as the audience applauded. But now I am not entirely sure that we can or should stop talking about abortion, even if we Europeans have reached a stable position on the topic.
A series of answers have been proposed to Merchant’s question. Of course, there is the warring mentality prevalent in American politics, the tendency to side with your team no matter what. But since this is a human tendency, rather than a strictly American one, this cannot provide a complete answer.
In After Virtue (1981), Alasdair MacIntyre argues that we have lost a shared language by which to make moral issues intelligible. You and I cannot really agree on anything, because we no longer have any common ground from which to start the discussion. MacIntyre cites abortion as a subject that proves our inability to engage in fruitful dialogue through a common language.
There is some truth to this. Furthermore, there may be a specifically American contribution to this problem, caused by a religious divide. But since much of Europe has already solved the problem, the divide MacIntyre describes may not be as all-encompassing as he suggests. At the very least, it suggests that a common language and the agreement that results is in principle still possible.
I much prefer the philosopher Derek Parfit’s approach. Of course there will be disagreement over abortion, he told an audience at Oxford in 2015. Abortion is precisely an issue around which our moral intuitions become blurry and clash. As long as there is no definitive argument that proves that unborn children have no moral standing (are not moral patients), there must be disagreement.
Merchant is right that we have solved the issue of abortion, in that most people agree that some people, in some circumstances, at some early stage in the pregnancy should have the right to have an abortion. But to say that we are therefore just “fiddling with the small print” is a stretch. How you qualify the right to an abortion is precisely the sticking point. One may reasonably think that in cases of coercion, a woman ought to have the right to an abortion, without also thinking that it should be a right for all.
Following Parfit, I think the controversy over abortion, seemingly universal to some degree, stems from the problem of squaring our different moral ideals. Most of us agree that a person ought to have a high degree of self-determination. But we also acknowledge that the unborn child has some sort of moral standing. It is not only a potential child, deriving its importance from what it may someday be. Upon hearing of a miscarriage, our sadness is not only directed at the parents, who were unlucky enough to not receive what they so passionately hoped for. The unborn child is not treated as an object. We do not respond the way we might if the parents had failed to receive a new car they’d hoped to purchase: well, you might get another one soon; it was just a car. Our sadness is in some way directed at the child, as someone with moral standing, someone who matters. It is not just bad for us that the child died. We are sad for the child.
To accuse us of anthropomorphizing here would be misguided. The child is, at least at some point, someone for whom things can be good or bad and who can be wronged, even if it is not yet conscious of the wrongdoing. Self-determination still matters. As difficult as it is to convince those who deny unborn children moral standing, it is even more difficult to convince those who deny that self-determination plays a role in the ethics of abortion. I can only make the latter case coherent by pointing out that someone who was supporting a life external to himself, someone whose blood was constantly being transferred to another human being to keep him alive, say, would still have the right to discontinue the procedure.
There are some common objections that can be raised here. If someone has signed a contract obliging him to make regular blood transfusions to the patient dependent on him, there might very well be good reasons to enforce it, provided no unexpected harm has come to the donor. But consent to sex is not consent to having a child and there is therefore no such contract with respect to pregnancy. For many of us, a lot of the time, pregnancy is a risk of sexual activity, rather than a reason for engaging in it. There is also a further problem with the analogy of the blood donor: we intuit that late-term abortions are somehow more wrong than abortions which take place early in the pregnancy. Presumably, though, it doesn’t make a moral difference whether the man supported by the donor dies early or late in the procedure.
Such objections aside, many of us agree that some semblance of self-determination ought to be preserved for the mother-to-be (or not-to-be). Then how do we square the idea that unborn children have some moral standing with the notion that mothers ought to have some self-determination?
The Nature of Moral Standing
The common view, in much of Europe at any rate, is that abortions ought to be allowed at an early stage, but not at a later stage. Somehow, we think, the child spontaneously comes to have a moral standing. But this makes little sense—and the fact that it makes little sense is precisely the argument most commonly used against abortion. If someone has moral standing at week twenty-eight, why not at week one? If we appeal to the sudden emergence of moral standing, therefore, we appear to end up in a nonsensical position, or we are obliged to oppose abortion altogether.
It is important to remember that an infant, or an unborn child, is not a thing. That is, the words infant and child do not refer to something intrinsically separate from an adult. Infancy is a stage of life, a stage in the whole life of a subject. It is the subject who has moral standing, not the infant as such. But at what point does this subject gain moral standing?
The problem here stems from the tendency to think of moral standing as an on/off phenomenon: in which either we have it and we ought to be treated as ends in ourselves, rather than mere means, or we don’t. But whether someone has moral standing says nothing about what that standing is. We ought to treat human beings as having moral standing, meaning that we ought to allow them to decide for themselves how they should live their lives. We should not coerce or deceive others. But we can admit that animals have moral standing, without thinking that there is such a thing as deceiving a dog. Our duties toward them are just different. Saying that an unborn child has moral standing, therefore, is not to say that it should automatically be treated as an adult human being.
The responsibility we have to children changes, without changing the child’s moral standing from off to on. We have a duty of care toward very young children, a duty of respect toward teenagers: the type of duty we have alters as the child develops. Our obligation towards people changes as those people change. So too with unborn children.
If one agrees with all this, the challenge is to implement a system which takes seriously both moral standing and self-determination. The dichotomy one is often forced into is to either argue that a woman has no right to self-determination, or that whatever choice she makes is morally sound. In the eighties, there was an ethical debate in America, unrelated to abortion specifically, which illustrates this predicament.
Choice Versus Self-Determination
Allan Bloom’s The Closing of the American Mind (1987) was based on Bloom’s realization that a lot of his students were relativists. How, Bloom asks, did they have no sense of right and wrong, and no sense of being right or wrong? Bloom presents his own answer to this, but this answer is largely dismissed by Charles Taylor in The Ethics of Authenticity (1992), in which Taylor argues that the American fixation with choice is the real source of relativism: i.e. for many Americans, mere choice masquerades as self-determination.
Self-determination was and is crucial. What separated the American students of the 80s and 90s from most reasonable adults was that they had lost sight of anything substantive pertaining to choice. A choice is not well-made or right, but just made, according to Taylor’s interpretation of their views. If you choose it, it’s right. Whatever works for you (in the sense that you choose it), works (in the sense of being morally sound). That’s Taylor’s reading of the situation.
Once the idea that whatever choice you make is good by virtue of your choosing it makes its way into political arguments, the abortion debate becomes untenable pretty fast. If making a choice, any choice, amounts to self-determination, and we ought to preserve self-determination, then there is no such thing as having an abortion for the wrong reason or, indeed, having a child for the right reason. In such a world, there will be no moral problems at all—or no moral problems that anyone can legitimately discuss.
But everyone feels that they have a stake in the abortion debate, precisely because it is a moral problem. Denying that the nature of one’s choice matters amounts to throwing everyone else out of the debate. Is it so strange, then, that Americans cannot agree on this issue, if the idea of self-determination as mere choice is as prevalent as Taylor suggests?
The Case of Norway
In Norway, the idea that the character of one’s choice matters has always been prevalent. So has the idea that moral standing can change—without having an off/on switch. It was and is accepted that the standing of the unborn child changes with its development. It gradually becomes more and more like a being or person and must increasingly be treated as such. The issue is therefore when the child becomes so much like a person that its life cannot be ended, and how to preserve self-determination, without granting validity to any and all choices.
The first law permitting abortion in Norway came into effect in 1964. Under this initial law, the pregnant woman had to come before a tribunal, which would decide her case. The woman’s choice was not all-important, but nor was self-determination, clearly. To be granted an abortion, the woman had to either be in physical danger from the pregnancy, she had to have been offended (coerced, usually), the child had to be suffering from some illness or she had to be at risk of losing her inheritance.
It is unclear how many abortions there were in those days, but a contemporary newspaper reports that 4,700 women requested an abortion in 1967—and 3,500 of those requests were granted.
In 1978, the law was changed, following years of protests. That year, women were granted the right to choose to have an abortion of their own free will, during the first twelve weeks of pregnancy. This delayed the necessity of convening a tribunal hearing until the twelfth week of pregnancy.
This was—and is—a disputed move. If we agree that there is such a thing as illegitimate grounds for an abortion, which we must if we agree that there ought to be a tribunal at all, it is unclear why this should only come into effect in week twelve. I think uncertainty is and was a driving factor. The uncertainty of whether the unborn child will survive the pregnancy appears to matter, though it is unclear how. The odds of the child’s survival improve after the twelfth week, so the argument goes, and the moral standing of the child becomes more stable as a result.
That does not make any sense. After all, my own future is uncertain. I might very well die tomorrow, but that doesn’t mean that you can justifiably end my life today. Uncertainty, though a common argument, really is not an argument at all.
The twelve-week cut-off for abortions without a tribunal hearing is better defended by appealing to practical considerations. To consent to sex does not imply a consent to pregnancy, so the mother ought to be allowed to decide whether she should carry the child to term. This is in keeping with self-determination. However, it is irresponsible to put off the decision perpetually, while the child grows, develops and becomes a more a more stable entity: more like a person for whom things are good and bad. This is in keeping with viewing the unborn child as possessing a developing moral standing.
The tribunal, which continued to make decisions for the mother after week twelve, made those decisions in much the same way as before. However, the inheritance factor was removed, and a focus on the personal situation of the mother added. Today, the tribunal will consider such things as the mother’s potential inability to keep her job or finish her education as relevant grounds for abortion. They will also factor in the mother’s relationship status and her general willingness to raise the child. Up until the twenty-second week at least—at which point, only bodily, psychological or social harm to the mother or child, or instances of coercion, function as valid grounds for abortion.
It is difficult to know what grounds are dismissed by the tribunal due to doctor-patient confidentiality. The true anti-abortionists among us may get the sense that the tribunal would allow almost any grounds for abortion: if a difficult situation counts as a valid justification. Then what is the point of the tribunal?
This is where my view differs from that of the prevailing law of the land. There may be some reasons which obviously do not count as grounds for an abortion after the twelfth week. Fear of an untidy apartment, say. But those cases are so marginal that I find it difficult to imagine anyone trying to appeal to the tribunal on those grounds.
The function of the tribunal ought to be to determine whether the mother is making a rational choice: not by the tribunal’s standards, but by her own. Consider the following case: a woman gets pregnant at age sixteen and wants to keep the child. However, her abusive boyfriend coerces her into having an abortion. This can and does happen.
The role of the tribunal, in my view, is to determine whether the mother is making a free and rational decision. The mother ought to know what she is going through, be able to reflect on what it is like to have a child—without seeing only the potential bad consequences. She needs to know that there is help available to assist her with potential difficulties and she must be free from coercion.
This is not a complete list of criteria. We would need to define precisely what constitutes a free and rational choice. When you request euthanasia in countries in which it is allowed, you usually have to go through a system designed to ensure that you are making the decision in the right way. This is completely in line with self-determination. You don’t have to arrive at a specific decision. You just have to be following a justifiable, reasonable decision making process. This ought to be the role of the tribunal. They should also function as arbitrators, deciding which grounds are valid, but they should focus primarily on the procedural element, designed to ensure the mother’s self-determination (and therefore well-being).
Tribunals in Norway are already designed to function in this way, even if some do not yet do so. The Norwegian Directorate of Health describes the function of the tribunal in the following terms: the tribunal “places significant emphasis on how you yourself understand your situation and its decision should be made in consultation with you.” The tribunal is composed of only two medical doctors, who should ideally be as different from each other as possible: one man and one woman in all cases where this is practicable. The idea is to remove bias and create a forum in which a decision can be made through cooperation.
But the debate over abortion never ends. Just this month, a series of essays have been published in Norwegian newspapers, arguing that a woman should be able to have an abortion without going before a tribunal, up until the twenty-second week of pregnancy. Choice masquerading as self-determination is slowly gaining traction here. Some have even argued that appearing before a tribunal is a form of shaming and should be removed from the process altogether.
I have already explained why I think it is practically wise to have a cut-off point at the twelfth week, for entirely self-determined abortion (i.e. without a tribunal hearing). But it’s difficult not to sympathize with the shaming argument. These are women in vulnerable situations, after all. But arguing that something puts an undue burden on someone does not show that that thing is wrong. It just shows that it may need adjustment. I believe that the notion that the process is shaming may stem from the idea that tribunals function as judges. Some may believe that they are going before the elders of our society, having to make their case, but taking no part in the decision. A switch to a procedural view of the tribunals, in which we regard them as ensuring that the decision is made in the right way, rather than ensuring that the right decision is made, ought to remove some of the stigma. As the Directorate of Health attempts to make clear, the decision is made in cooperation with the mother. It is not made for her. Not feeling in control is a burden, but it is a burden that could be removed.
Another question which was debated a couple of years ago was whether doctors were obligated to participate in the abortion if they were morally opposed to it. A pregnant woman used to need a referral from her general practitioner, and some of those GPs opposed abortion. We have solved that problem by removing the need for a referral. This, as I understand it, is already the case in the United States.
Whether one agrees or disagrees with the right to have an abortion, the issue has not been solved in any meaningful way. The Norwegian system has been fairly stable since the 70s, but it is constantly under attack. I don’t think it’s at all strange that America has yet to reach a stable position on the subject. Norway is only comprised of just over five million people. Getting 325 million people to agree is surely more difficult, especially on a question which lies at the very core of our intuitions and moral ideals.
We have not solved all the big picture problems. There will always be ongoing debate about abortion— and almost everything else. There will always be tension and reassessments and angry arguments on issues in which moral ideals come so forcefully into conflict. Understanding how and why our moral ideals collide is profoundly important.