The US abortion debate has recently been reignited, following a leaked Supreme Court draft decision in which most justices supported overturning Roe v. Wade.
The fact that it matters what judges think on this issue is peculiar (though not unique) to the US, where certain constitutional rights are deemed to supersede the will of legislators. In the UK or Australia by contrast, it is ultimately up to elected politicians what the law on abortion should be, not the courts.
The legitimacy of any legal regime depends on its moral foundations. And beneath the current legal turmoil lies a fundamental disagreement about the morality of abortion. Until this changes, the legal question cannot hope to be resolved.
The key moral disagreement is whether human foetuses are persons. If you think that they are, then abortion is obviously murder. If you think they are not, then abortion may be morally permissible. So which position is correct?
We first need to recognise that “persons” and “humans” are not synonyms. Everyone agrees that an unborn foetus is human in that its cells contain distinctly human DNA, and it is on a path to developing into an adult human, if it receives adequate support.
Unlike the term “human,” however, which denotes a species, “person” refers to a being with distinctive moral rights: most importantly, a right to life. What does it mean to have a right to life? It means a right not to have your life terminated by other people. In other words, it’s an obligation on other people not to intentionally kill you.
So why do humans enjoy this right, but not cows, for instance?
One response is that we humans are endowed with souls by God at conception, whereas cows are not. You don’t hear this argument much these days, mainly because the soul arithmetic needed to make sense of monozygotic twins renders it incoherent, as Richard Dawkins has recently reminded us. More generally, such religious reasoning is completely unconvincing to anyone who doesn’t already believe in a god or gods and in eternal souls.
More commonly heard nowadays is the secular response that, as humans, it is natural for us to value our own kin more than other species. In other words, we should support and protect the genetic tribe to which we happen to belong, and feel free to exploit those outside it. Peter Singer has critiqued this as speciesism, which he views as morally akin to racism. It is merely an arbitrary preference for the species into which you happen to have been born.
Thinking this way could prove especially foolish if aliens ever visit Earth. If super-intelligent, space-faring beings ever arrived on this planet and were debating whether to consume us as snacks, the speciesists among us would cry out: “No—you can’t kill us. We have human rights!” To which the aliens would rightly respond: “Sure, but why should we respect those rights, if we non-humans are not offered the same rights in return?” To convince them, the speciesists would have to appeal to a broader conception of personhood that includes both humans and aliens.
What might that conception be? It could home in on unique cognitive capacities like language and self-awareness over time. Persons like us are uniquely capable of symbolic thought, meta-cognition and theory of mind. Rather than merely being able to perceive the physical processes playing out in front of our senses, we can also mentally represent abstract entities, including propositions about the world and about the contents of other minds.
Crucially, this repertoire of capacities enables us to be, as the philosopher Jenann Ismael puts it, self-governing systems. Such systems can make mental states objects of their attention, as well as check them for consistency and coherence.
These capacities give rise to a moral right to life.
As the philosopher Michael Tooley has pointed out, a being can only logically enjoy a right to something if it has the capacity to desire or value that thing. While human beings can obviously desire to continue to exist into the future as extended selves, no other known animal on Earth can. Other animals simply lack the cognitive machinery to imagine themselves alive tomorrow, let alone next year. Note that this has nothing to do with recognising your own physical body momentarily in a mirror, which many animals can do. Rather, it is about appreciating that you are a being with a persisting psychological identity.
Obviously, other animals possess various desires that facilitate their survival. They want to eat, hunt, sleep and mate, just as we do. But while their minds can represent basic categories like prey, kin and danger, they cannot entertain the concept of their own existence, or fear death as the end of it.
Because other animals cannot conceptualise death, Tooley argues, they can have no desire to avoid it, which might be frustrated by a person who chooses to kill them. Death in itself is therefore not inherently bad for them, as it is for human persons.
A kitten can desire that a certain sensation, for instance pain, not exist. That is, it can cognitively represent pain in its own kitten-brained way. This provides a strong moral reason not to torture kittens. But since a kitten cannot conceptualise its own non-existence, it does not possess the relevant interest in remaining alive that makes it harmed by having its life taken from it.
This of course does not mean that we should go around killing kittens—just that if someone were to painlessly kill a kitten, this would not frustrate any of its desires. It would just extinguish them altogether.
When you murder a human being, on the other hand, you frustrate the satisfaction of desires whose objects extend beyond the immediate sensory realm. The person’s body is not only dead, but her plans and dreams go unfulfilled.
This account of personhood implies that abortion is not murder. A foetus does not have any conceptual sense of itself as a being persisting over time, so painlessly terminating its life cannot violate its rights. Of course, killing a foetus without the consent of the mother would be a terrible crime against her. But if the mother chooses to terminate her pregnancy, there is no moral basis for criminalising this decision.
Addressing the nature of personhood directly is the only way to argue coherently for a right to abortion. Any approach that avoids doing so is doomed to be unconvincing.
For instance, the philosopher Judith Jarvis Thomson has famously defended the right to abortion on the basis that women have a right to autonomy over their bodies. Thomson analogises pregnancy with having your body forcibly connected to that of a famous violinist in order to sustain his life for nine months. Thomson’s point is that in the violinist scenario, you are clearly entitled to free yourself from the situation because you did not choose to enter it. The fact that the violinist will die is irrelevant, since no one is entitled to enslave you to sustain the life of another.
But, as many critics have pointed out, most pregnancies are either fully intentional or the accidental consequence of accepting the risk of pregnancy by voluntarily having sex. While Thomson’s analogy certainly holds for the small percentage of pregnancies that are the result of rape or ignorance that sex causes pregnancy, it becomes less convincing the more voluntary choice was involved on the mother’s part.
For clarity, let us focus on the hardest case: fully intentional pregnancies in which the woman decides to have an abortion for a reason other than her life being in danger.
A better analogy for this situation is that of finding an injured person and choosing to take her into your exclusive care. In that case, if you decide to let her die, you have clearly committed a wrong. In choosing to take her in, you incurred a duty of care. The general point is that if the vulnerable being in your care is a person, it’s wrong to intentionally bring about her death.
Another common argument made by pro-choice activists is that their opponents only oppose abortion out of a misogynistic desire to control women’s bodies. While misogyny can motivate some anti-abortion views, such views are sufficiently motivated by the belief that the foetus is a person with a right to life.
These arguments fail to convince because they ignore or concede the point that foetuses are persons. Once that battle is lost, pro-lifers are perfectly correct to hold that a temporary limitation on one person’s autonomy can never outweigh the life of another.
So, why don’t pro-choice activists just embrace the cognitive capacities conception of personhood outlined above, in order to have a compelling, principled moral explanation that can rival that of their opponents?
Well, there is a catch. Adopting this view of personhood has certain implications. First, because the psychological capacities required for personhood only come online at around 3–4 years of age, newborn infants would be excluded from the personhood club, making after-birth abortions morally permissible. Second, adults with such severe cognitive disabilities that they are incapable of language or metacognition would not be considered persons either. Ethicists Peter Singer and Jeff McMahan have argued that both types of human beings therefore lack an absolute right to life. This means that in some circumstances, it may be permissible to terminate their lives.
These scholars have faced passionate objections that such repugnant conclusions should be resisted at all costs, because they so offend our common sensibilities. This resistance often comes from a desire to protect the rights and dignity of the most vulnerable. The atrocities of the Nazis are often understandably invoked to warn against systematically under-attributing rights to those who possess them.
Moral theorising in the aftermath of the Holocaust has concerned itself primarily with expanding the circle of rights to cover more and more beings. While a rational and necessary response, it was never coherent as a project of endless extrapolation. We will not achieve moral nirvana when all creatures on Earth enjoy the same moral status and rights as we humans do. This is because particular rights attach to particular psychological capacities, which means that attributing a higher right to a creature without the corresponding capacities will reliably cause severe harm.
Think, for example, of allowing complete freedom of movement to your untrained pet dog in a bustling city. He would probably be killed within the hour. Likewise, endowing a toddler with the right to engage in commercial contracts is an obvious recipe for exploitation and abuse.
Advocates of the right to abortion keenly grasp this problem of over-attribution of rights. They appreciate that falsely attributing a right to life to a foetus has the perverse effect of denying its mother the right to control her own body, and the freedom to make one of the most important decisions of her life.
But the same fallacy applies to newborn infants and severely cognitively disabled adults. In these cases, vulnerable human beings are unable to make decisions about whether their lives are worth living, which means that responsibility must fall to their rational guardians. Attributing an absolute right to life to non-persons has the perverse effect that those who care most about their welfare are unjustly blocked from making necessary, though extremely difficult, decisions on their behalf.
Consider those with advanced dementia. Many witness their elderly parents succumb to this disease and eventually cease being the people they once were. Yet they must linger on, sometimes for months or years, without any comprehension of who they or their children are, because our legal system judges any decision to the contrary as a violation of their absolute right to life. Take a moment to consider just how many human beings like this around the world, and their families, are suffering unnecessarily because of this moral and legal dogma that mindlessly conflates humans and persons.
The debate about abortion rights does not exist in a vacuum. It is inextricably tied to our conversations about infanticide, euthanasia, animal welfare and one day, the moral status of artificial intelligences. We cannot hope to approach moral clarity on any of these topics without a coherent explanation of the psychological properties that underpin the moral status of a given conscious being. Different kinds of minds possess different kinds of moral rights, and pretending otherwise reliably harms our most vulnerable fellow creatures.