Tooley Marquis Abortion Essay

The Ethics of Abortion

 

 

For purposes of our discussion we will be defining ‘abortion’ as follows:

 

Abortion = deliberate removal (or deliberate action to cause the expulsion) of a fetus from the womb of a human female, at the request of or through the agency of the mother, so as in fact to result in the death of the fetus.

 

That is to say, we want to know about the morality of uncoerced, human abortion—so for our purposes abortions are voluntary, deliberate removal of a human fetus.

 

 

Mary Warren, “On the Moral and Legal Status of Abortion”, 1973

 

Warren defends an extremely permissive view on abortion, according to which abortion is morally permissible at any stage of the pregnancy and under any circumstances.

 

Warren considers the following anti-abortion argument:

 

1) It is wrong to kill innocent human beings.

2) Fetuses are innocent human beings.

______________________________________

3) Therefore, it is wrong to kill fetuses.

 

 

 

She claims that the plausibility of the premises rest on an equivocation on the term ‘human being’:

 

Human in the genetic sense = being a member of the biological species homo sapien.

 

This includes not only functioning children and adults, but also includes fetuses (even very early fetuses) and living human bodies without functioning brains (e.g. those in irreversible comas).

 

Human in the moral sense = being a full-fledged member of the moral community.

 

Warren:The moral community is the set of beings with full moral rights, and consists of all and only persons.

 

If ‘human being’ has the same sense in both premises then one of them is question-begging.Either the argument assumes that it is wrong to kill something merely because it is homo sapien, or the argument assumes that a fetus is a member of the moral community.Both of these claims are contentious and would require further argument.

 

Warren next considers whether genetic humanity is sufficient for moral humanity.She asks “What characteristics entitle an entity to be considered a person [in the moral sense]?”

 

Warren’s list of characteristics (not an argument!):

 

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 genetic or direct external control).

 

4.The capacity to communicate, messages of with an indefinite number of possible contents on indefinitely many possible topics.

 

5.The presence of self-concepts and self-awareness.

 

Warren claims that:

 

·any being who does not possess most of 1-5 is not a human being in the moral sense.

 

·the more like a person a being is, the stronger is the case for regarding it as having a right to life, and the stronger its right to life is.

 

·there is no stage of fetal development at which a fetus resembles a person enough to have a significant right to life.

 

·a fetus’s potential for being a person does not provide a basis for the claim that it has a significant right to life.Even if a potential person has some right to life, that right could not outweigh the right of a woman to obtain an abortion, since “the rights of any actual person invariably outweigh those of any potential person”

 

The spaceman analogy:A space explorer is captured by aliens who are going to make a thousand clones of him unless he escapes.Does he have an obligation to stay?No, says Warren, even if the cloning is done quickly and does not harm him.Not even if the clones have already started to grow and will die if he escapes.

 

Objections to Warren

 

If killing fetuses is permissible because they are not full-fledged members of the moral community, then, by the same standard, killing newborns would be permissible as well.Moreover, killing any non-human animal would also be permissible.But this is not the case.

 

Warren’s Reply: “The deliberate killing of viable newborns is virtually never justified...because neonates are so very close to being persons that to kill 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.”

 

Is this an adequate reply?Arguably not.Take the example of a premature birth.A six-month “premie” is certainly a “viable newborn”, given modern technology.But it is no closer to being a person than a six-month fetus that happened to stay in the womb.So, to be consistent, Warren must either say that killing the premature infant is permissible, or that aborting the six-month fetus is not.

 

Since Warren brings up non-human animals, let’s consider what Peter Singer would say about this.Recall that argues against making personhood a necessary condition for moral consideration (that would be “speciesist”).Instead, he proposes that having interests is what matters, and sentience (the capacity to feel pain) is both necessary and sufficient for having interests.

 

At what stage of development is a fetus capable of experiencing pain?Somewhere between 5 and 6 months, it is now believed.

 

Don Marquis, “Why Abortion is Immoral” (1989)

 

Marquis’ analysis of the debate:

 

“The pro-choicer wants to find a moral principle concerning the wrongness of killing which tends to be narrow in scope in order that fetuses will not fall under it.”The price is that they tend to be too narrow, so that infants, young children, the temporarily unconscious or the severely retarded end up in the same category as fetuses.”

 

An Example of an overly narrow principle:“It is always prima facie wrong to kill only rational agents”.

--This seems to be very close to the standard that Warren adopts!

 

Note on the term “prima facie”:This is latin for “at first glance” or “ on the face of it”.If I have a prima facie reason to believe something, then I should presume it is true unless I have other evidence to the contrary that overrides the prima facie reason.If a type of action is prima facie wrong, what this means is that the type of action is wrong in most cases, with exceptions in special circumstances that would justify the action.

 

On the other hand, the anti-abortionist wants to find a moral principle so broad that even fetuses at an early stage will fall under it.These principles are often too broad.For example:“It is always prima facie wrong to kill something that is genetically human”, which seems to entail that it is wrong to “end the existence of a living human cancer cell culture.”

 

If the anti-abortionist tries to fix the problem by adopting the principle that “It is always prima facie wrong to kill a human being” then they simply beg the question against the pro-choicer when they get to the next premise, “Fetuses are human beings”.(The pro-choicer will deny that fetuses are human beings in the moral sense).

 

Likewise, it is question-begging for the pro-choicer to adopt the principle “It is always prima facie wrong to kill only human beings" (why assume that fetuses aren’t human beings?)

 

There seems to be no non-question-begging way in which either side can establish a definition of moral personhood that suits their interests.

 

The solution:An analysis of the wrongness of killing.“If we merely believe, but do not understand, why killing adult human beings such as ourselves is wrong, how could we conceivably show that abortion is either immoral or permissible?”

 

What primarily makes killing wrong is neither its effect on the murderer nor its effect on the victim’s friends and relatives, but its effect on the victim.

 

The effect:“The loss of one’s life deprives one of all the experiences, activities, projects, and enjoyments that would otherwise have constituted one’s future”.

 

“...what makes killing any adult human being prima facie seriously wrong is the loss of his or her future.”

 

Killing is wrong because it results in the loss of a future of value (like ours).

 

Points in favor of the analysis (according to Marquis):

 

·It explains why killing is regarded as one of the worst of crimes:it deprives the victim of more than perhaps any other crime.

 

·People who are dying believe it is bad because it is a loss of a future of value.It makes sense that killing is fundamentally wrong for the same reason that death is bad.

 

·Implies that it would be wrong to kill non-humans that have “a future like ours” (a future of value), such as certain animals or intelligent extra-terrestrials.

 

·Unlike “sanctity of human life” theories, does not entail that active euthanasia is always wrong.Whether it is wrong depends on the expected value of the future of the patient.

 

·Unlike personhood theories (e.g. Warren’s), it straightforwardly entails that killing children and infants is wrong, and for the same reason it is wrong to kill anyone else.

 

Marquis’ position in a nutshell:
“The future of a standard fetus includes a set of experiences, projects, activities, and such which are identical with the futures of adult human beings and are identical with the futures of young children...it follows that abortion is prima facie seriously wrong.”

 

 

Rival theories as to why killing is wrong

 

(1)Desire account:What makes killing wrong is that it prevents us from fulfilling our desires.[This might be attractive to the pro-choicer because fetuses don’t have desires].

 

Can support abortion only if having desires is a necessary condition for having the right not to be killed.But it isn’t a necessary condition:the depressed, the temporarily unconscious provide counterexamples.

 

Worse, it puts the cart before the horse:we desire life because we value it, not the other way around.

(2)Discontinuation account:What makes killing wrong is the discontinuation of a life of value.[Might be attractive to the pro-abortionist on the assumption that a fetus does not yet have a life of value].

 

When considering whether it is wrong to kill someone in a case of euthanasia, the person’s past (even immediate past) is irrelevant:only the future matters.“This being the case, it seems clear that whether one has immediate past experiences or not does no work in the explanation of what makes killing wrong.”

 

Objection:Killing a person may be wrong because a person has a future of value.But it doesn’t follow that killing a merely potential person, such as a fetus, is wrong.

Marquis:“This argument does not rely on the invalid inference that, since it is wrong to kill persons, it is wrong to kill potential persons also.The category that is morally central to this analysis is the category of having a valuable future like ours; it is not the category of personhood.”

 

A standard fetus has a valuable future like ours:whether it is a “person” or a “potential person” is beside the point.

 

Discussion:

 

Is there a way that Marquis can make exceptions in the “hard cases”, such as pregnancy due to rape or incest, or where the life of the mother is in jeopardy?

 

Is there a problem in determining which things can be said to have a future?E.g., do zygotes have a future?

 

Thought experiment

(from Michael Tooley’s “Abortion and Infanticide”)

 

Suppose there is a drug that can be injected into kittens to cause them to grow into cat people.

 

Abbreviations

PCP = potential cat person

PHSP = potential homo sapiens person

CP = cat person

HSP = homo sapiens person

 

Tooley’s argument

1.It is morally okay not to inject the kittens.

 

2.There is no morally relevant distinction between actions and omissions (The Moral Symmetry Principle, a.k.a. doctrine of negative responsibility)

 

3.Therefore, it is okay to neutralize the development of a PCP once you have injected the kitten (e.g. to stop the process by killing the kitten).

 

4.CPs have the same rights as HSPs.

 

5.PCPs have the same rights as PHSPs.

 

6.Therefore, it is okay to neutralize the development of a PHSP—abortion is morally permissible.

 

How might Marquis respond to Tooley’s argument?Notice that PCPs are not merely potential persons, they are also things with futures of value.

 

Judith Jarvis Thomson, “A Defense of Abortion” (1971)

 

Thomson assumes, just for the sake of argument, that the fetus is a person from conception.She then tries to show that, even given that the fetus has a right to life, it does not follow that abortion is morally impermissible.

 

The anti-abortion argument:

 

(1) All fetuses are persons.

(2) Every person has a right to life.

(3) Therefore, every fetus has a right to life.

(4) Therefore, abortion is wrong.

 

For the sake of argument, Thomson assumes that (1) and (2) are true.She then argues that (4) does not follow from (3).From the fact that something has “a right to life” it does not follow that it is wrong to kill it.This much is easy to see, since most of us agree that it is not wrong to kill in self-defense.

 

This suggests that (4) needs to be qualified “except to save the life of the mother”.

 

But Thomson argues that the gap between (3) and (4) is much wider than this.Along these lines, one suggestion is that a mother has a right to decide what happens in and to her body, and that this might outweigh the fetuses right to life.(Notice that this does not assume that the fetus is literally part of the mother’s body).

 

But the anti-abortionist can simply respond that the right to life is the strongest and most fundamental right there is, and so outweighs the mother’s right to decide what happens to her body.

 

But Thomson does not argue that the mother’s right over her own body outweighs the fetuses right to life.Instead, she argues that the right to life has been misunderstood.Once it is understood correctly, it will be seen that (4) does not follow from (3).

 

Thomson proposes 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. The director of the hospital now tells you, 'Look, we're sorry the Society of Music Lovers did this to you—we would never have permitted it if we had known. But still, they did it, and the violinist is now plugged into you. To unplug you would be to kill him. But never mind, it’s only for nine months. By then he will have recovered from his ailment, and can safely be unplugged from you.' Is it morally incumbent on you to accede to this situation? No doubt it would be very nice of you if you did, a great kindness. But do you have to accede to it? What if it were not nine months, but nine years? Or longer still? What if the director of the hospital says. 'Tough luck. I agree. but now you've got to stay in bed, with the violinist plugged into you, for the rest of your life. Because remember this. All persons have a right to life, and violinists are persons. Granted you have a right to decide what happens in and to your body, but a person's right to life outweighs your right to decide what happens in and to your body. So you cannot ever be unplugged from him.' I imagine you would regard this as outrageous."

 

 

Thomson concludes that (i) it is not true that the violinist has a right to your body, and so, by analogy (ii) it is not true that a fetus that is a product of rape has a right to your body, but (iii) there is no easy way for the anti-abortion argument to be amended to account for this.Saying that those who are products of rape have no right to life or have less of one “has a rather unpleasant sound” (meaning it is discriminatory in a bad way), not to mention it is ad hoc.

 

The solution, according to Thomson, is not that certain fetuses have less of a right to life or none at all; the solution is that having a right to life simply does not entail having the right to someone else’s body.This means that the argument is invalid; the conclusion (4) does not follow from the premises.

 

So what does the right to life consist in?One suggestion:

(a) the right to be given at least the bare minimum one needs for continued life

 

Objection:Sometimes the bare minimum is something you have no right to. (Violinist example).

 

(b) the right not to be killed

 

Objection:Sometimes you can be killed by being deprived of something you have no right to.(Also, there is self-defense)

 

She concludes, “the right to life consists not in the right not to be killed, but rather in the right not to be killed unjustly.”True, but not very informative.

 

We never have the right to someone else’s body unless that right has been extended to us.(Henry Fonda example)

 

Thomson’s Thesis:In cases where the right to use the mother’s body has not been extended to the fetus, abortion does not violate the fetuses right to life.

 

In what cases does the fetus have the right to use the mother’s body?

 

Rape?Clearly Not.

 

Sex using birth control?No...

" ... suppose it were like this: people-seeds drift about in the air like pollen, and if you open your windows, one may drift in and take root in your carpets or upholstery. You don't want children, so you fix up your windows with fine mesh screens, the very best you can buy. As can happen, however, and on very, very rare occasions does happen, one of the screens is defective, and a seed drifts in and takes root. Does the person-plant who now develops have a right to the use of your house? Surely not--despite the fact that you voluntarily opened your windows, you knowingly kept carpets and upholstered furniture, and you knew that screens were sometimes defective."

 

Implicit Argument:

1)The fetus has the right to use my body only if it is reasonable to hold me responsible for my pregnancy.

2)If I tried to prevent pregnancy through the use of contraception, then it is not reasonable to hold me responsible for my pregnancy.

___________________________________________________

3)Therefore, if I tried to prevent pregnancy through the use of contraception, then the fetus does not have the right to use my body.

 

Ordinary consensual sex without contraception?

If the room is stuffy, and I therefore open a window to air it, and the burglar climbs in, it would be absurd to say, 'Ah, now he can stay, she's given him the right to the use of her house, for she is partially responsible for his presence there, having voluntarily done what enabled him to get in, in full knowledge that there are such things as burglars, and that burglars burgle.

 

 

Objection:A fetus is innocent, not a burglar trying to do you harm.But, Thomson would say, this makes no difference:I have the right to eject an innocent person from my home, if that person falls through my window.At this point it may be objected:getting pregnant due to voluntary, unprotected sex is not like having a person stumble into your home or fall through your window.It is more like having someone over because you invited them into your home…

 

Thomson recognizes that not all moral obligations stem from rights.For example, if a child finds a chocolate bar, then his sister has no right to it, but decency requires that he share it with her anyway.Likewise, in some cases, it would be wrong to abort because it would be “indecent”.

 

When is it indecent?Thomson doesn’t say, just gives an obvious example:A woman wants to abort at seven months so that she can go to Europe.

 

But, argues Thomson, making decency a legal requirement in effect requires us to be “Good Samaritans”.Thomson notes that “no one in any country in the world is legally required” to be a Good Samaritan, except in the case of pregnancy.In fact, no one is even required to be a Minimally Decent Samaritan.

 

Thomson:Abortion is permissible in many cases, but this does not mean we have the right to secure the death of the fetus."The desire for the child’s death is not one which anybody may gratify, should it turn out to be possible to detach the child alive."In Thomson’s view, the death of the fetus is a necessary side-effect of abortion, but is not a legitimate goal of abortion.Were it possible to remove a fetus without killing it, then it must not be killed.

 

Discussion:

 

Pro-choice lobbies are concerned about laws and policies that may implicitly recognize the fetus as a person (e.g. criminalizing the harming of a fetus by an attacker, or extending federal funds to poor women for prenatal care on the grounds that the funding is for “low-income children”.)Would such laws and policies be cause for concern for Thomson?What about a personhood theory?

 

Do we share Thomson’s intuition about the case of the violinist?

 

Is Thomson’s view about rights compatible with Marquis’ theory of the wrongness of killing?

 

When is it “indecent” for a woman to have an abortion?

 

Abortion and Implicit Consent

 

Let’s assume, for the sake of argument, that a fetus must have the consent of the mother in order to have the right to use her body.Under what conditions does the fetus have the consent of the mother?

 

Explicit Consent:The mother-to-be declares, “I, ___________, hereby give this fetus the right to use my body for the purpose of growing into a viable infant until I give birth to it.I am fully aware of what this will involve.”In general, giving explicit consent to something means making a public, un-coerced and informed statement in which one recognizes certain rights and responsibilities that would not otherwise exist.This is what we do when we sign a contract.This is not what we do when we decide to have a child.If women give consent to fetuses, it is not explicit consent.

 

Implicit Consent:If you voluntarily enter a restaurant or a bar, then you are subject to certain “rules of the house”.You might be required to dress in a certain way, refrain from shouting, etc.If you fail to follow these rules, you may be expelled.The fact that you are there of your own free will is interpreted as an agreement on your part that you will obey the house rules.In other words, you have implicitly given your consent to be subject to those rules.Similarly, if you enroll in a class, then you are subject to certain requirements necessary for getting a passing grade (usually detailed in the syllabus).At no point do you say, “I hereby agree to the terms of this syllabus.”You have already given your implicit consent by staying enrolled in the course.

Depending on what nation, state and county you live in, you will be subject to different laws.Citizens do not give explicit consent to obey the laws, but it is arguable that they give implicit consent.For example, suppose Smith lives in a county where pornography is illegal.He could easily move to a different county, but he chooses not to.If Smith is caught displaying pornography, he could be fined.If he complained to the judge, “I never agreed to obey your pornography law”, the judge could retort, “No one forced you to live here, did they?”

The above examples of implicit consent all have two things in common:(i) the consenting person makes a voluntary choice to engage in a certain type of activity, (ii) the activity in question is generally understood to entail certain responsibilities.Because the person involved, like most other people, understands that certain responsibilities come with the activity, there is no need for the individual to explicitly agree to take on the responsibilities—they take them on automatically.

 

What has this got to do with abortion?

 

In a typical case of unwanted pregnancy, the pregnant woman

 

(A) Engaged in an activity (sexual intercourse) that is known to cause pregnancy, and in fact is the usual way in which people get pregnant.

(B) The now pregnant woman knew this at the time.

(C)Either (i) she was not using birth control, and she knew this, or (ii) She was using birth control, but she knew that birth control sometimes fails.

(D) The woman voluntarily chose to have sex.

 

For Discussion

In a case where all of these conditions are met, has the woman given implicit consent to give birth to a child?

 

Notice the following:In the uncontroversial examples of implicit consent, it was generally understood that the activity entailed certain responsibilities.But in the case of unwanted pregnancy, there is widespread disagreement about whether unprotected voluntary sex entails being responsible for the life of a fetus.On the other hand, It could be argued that there being a “general understanding” is not necessary for implicit consent…

In my essay, Why abortion is immoral, I claimed that an argument we can call “a future of value argument” shows that typical fetuses have the right to life.1 The essence of the future of value argument can be set out schematically. Premise 1: Having a future of value is the basis for the right not to be killed. Premise 2: Fetuses have a future of value. Conclusion: Therefore, fetuses have the right not to be killed.

In a recent essay in this journal, Mark Brown argued that the future of value argument is unsound because of an equivocation on the concept of a future of value.2 On the one hand, “future of value” can refer to the potential future of value of a human organism. A human's potential future of value is the goods of life that a human being later would have experienced had her life not ended. On the other hand, “future of value” can refer to a self-represented future of value. A self-represented future of value is a human being's valuable future life as she presently represents it to herself. Brown argues that, on the one hand, if “future of value” is understood as “potential future of value”, the second premise of the argument is true, but the first premise is false. Brown argues that, on the other hand, if “future of value” is understood as “self-represented future of value”, the first premise of the argument is true, but the second premise is false. Thus, no version of the future of value argument is sound. Any plausibility the future of value argument may seem to have results from confusing the concept of a potential future of value with the concept of a self-represented future of value.

Let us call the two arguments Brown wishes to distinguish “a potential future of value argument” and “a self-represented future of value argument”. Brown's view of the truth or falsity of the second premises of both arguments is clearly correct. The second premise of the potential future of value argument is true because, if fetuses are allowed to live, then the lives of the adults they will become contain the sorts of goods presently alive adults agree to be valuable to them. The second premise of the self-represented future of value argument is false because fetuses are neurologically incapable of representing their futures to themselves. Thus, whether or not Brown's appraisal of either version of the future of value argument is correct turns on whether the first premise of the potential future of value argument is false, as he maintains, and whether or not the first premise of the self-represented future of value argument is true, as he maintains. The purpose of this essay is to dispute both of these claims.

Brown's argument against the potential future of value argument

Clear discussion of Brown's views requires some distinctions. The first premise of the potential future of value argument, which Brown wishes to reject, is a simplified version of my (surely incomplete) account of the wrongness of killing. Call this “the potential future of value account”. The first premise of the self-represented future of value argument, which Brown wishes to accept, is essentially Brown's account of the wrongness of killing. Call this account “the self-represented future of value account”.

Brown claims that an argument that appeals to our lack of welfare rights shows that the potential future of value account is false. Basically Brown's welfare rights argument comes to this: Premise 1: If having a potential future of value is the basis for the right not to be killed, then humans have a welfare right to what they need to stay alive. Premise 2: Humans do not have a welfare right to what they need to stay alive. Conclusion: Therefore, having a potential future of value is not the basis for the right not to be killed.3

Since many would claim that the right not to be killed and the welfare right to what one needs to stay alive (whatever its scope) are different rights, one wonders why Brown thinks that the first premise of this welfare rights argument is true. Here is his sole argument: “Someone who has been killed and someone who has been denied access to life support have been deprived equally of their potential futures.”3Brown's claim is plainly true. But how is the first premise of his welfare rights argument supposed to follow?

There are good reasons for thinking it does not. Everyone else can honour their duty not to kill you by doing nothing at all. As a consequence, such a duty is often called a negative duty. If there is a welfare right to what one needs to stay alive, and one is dependent in some way, then at least one other person has a duty to do something to provide the needed assistance. As a consequence, such a duty is often called a positive duty. It follows that a welfare right to what one needs to stay alive (whatever its scope) is not strictly entailed by the right not to be killed, whatever one's account of the wrongness of killing. Of course, this does not at all rule out the possibility that the potential future of value account of the wrongness of killing (or some other account) could be combined with other defensible moral precepts to yield a welfare right to what one needs to stay alive, on at least some occasions.

The difficulty concerning the first premise of Brown's welfare rights argument can be seen in another way. Insisting that you honour my right not to be killed does not deprive you of anything to which you have a presumptive right, except, perhaps, your freedom. Insisting that you honour my right to what I need to stay alive can deprive you of your presumptive right to your property or your body. Thus, an important rights based argument must be ruled out to arrive at the welfare right to what one needs to stay alive that does not need to be ruled out to arrive at the right not to be killed. Accordingly, Brown's defence of the first premise of his welfare rights argument is insufficient.

Discussion of the second premise of Brown's welfare rights argument might seem to require some discussion of the scope of the welfare right to what one needs to stay alive. A welfare right of unlimited scope seems quite implausible. Fortunately for us, Brown indicates the scope of the alleged welfare right he has in mind. These are welfare rights that “most people would reject in other spheres of life”.3 What are some of these supposedly bogus rights? According to Brown: “A homeless man who dies of exposure, an elderly woman whose unheated apartment precipitates a fatal case of pneumonia, an injured child who dies for want of a suitable blood transfusion would all [according to the potential future of value account] be homicide victims.”3 I doubt that Brown's account of most people's attitudes is correct. According to the decent people I know, the homeless man who dies of exposure because the community offers no warm shelter on cold nights, the elderly woman who dies because the gas company shut off her heat in winter, and the injured child who is deprived of a blood transfusion if blood of the right type is available are victims of wrongful negligence.

Brown supports his view by claiming that most people believe that we do not have the welfare right to “life-enhancing medical interventions”.3 If one thinks of (much) cosmetic surgery, Brown is certainly correct. If one thinks of surgery to repair a broken hip, his claim is far from obvious.

A defender of Brown's argument strategy might argue that, in spite of Brown's very dubious claims about welfare rights, if his welfare rights argument were reformulated to apply only to fetuses, then Brown would have some good arguments for the second premise of such a revised welfare rights argument. Brown argues: “The fetus certainly needs its uterine environment if it is to realise its potential, but persons do not in general have a right to satisfy their needs at the expense of the autonomy, bodily integrity, and wellbeing of another person. If I need a bone marrow transplant in order to realise my potential future of value, I do not thereby gain a right to your bone marrow, even if you are my mother.”3

Consider the first sentence of this quotation. It might seem true because, when we think of persons “in general”, we think of persons able to satisfy their needs on their own or with the entirely voluntary cooperation of their families. But if we consider, not persons “in general”, but the population of dependent persons, matters are far less obvious. Consider the elderly with physical and mental disabilities, other people who are physically handicapped, the retarded, the mentally ill, and children. In a decent society these individuals are thought to have welfare rights that can restrict the autonomy and wellbeing of taxpayers, care-givers, children of the elderly, or parents. Thus the first sentence in the above quote, although, perhaps, technically true, does not support Brown's view of the rights of dependent human beings.

But isn't it true that a child does not have a right to her parents' bone marrow even if the bone marrow is needed for the child's survival? Perhaps there is no such present legal right, but the absence of a legal right hardly implies the absence of a corresponding moral right. There is no legal right to a minimum level of health care in the US. It obviously does not follow that someone who believes (as do I and many others) that all Americans have a moral right to a minimum level of health care is wrong. Those of us who are parents make (or have made) substantial sacrifices for our children because we believe that our children are entitled to a good upbringing. Of course, such sacrifices entail giving up some of our autonomy and well being. Furthermore, when I think of my own children, I think that my refusal to provide a needed bone marrow transplant for either of them would show that I had a seriously deficient moral character. I am willing to bet that virtually all of the readers of this essay would agree with me. Brown's account of the attitudes of most people concerning welfare rights are false.

Thus, the general version of Brown's welfare rights argument is unacceptable because Brown has not clarified and established its implausible first premise. Its second premise is false. Indeed, even if we help Brown out a bit by narrowing the welfare rights argument so that it applies only to cases of pregnancy, Brown's defence of such a restricted version of a welfare rights argument is unconvincing. In addition, Brown's welfare rights argument is subject to an even worse problem. Consider the following thought experiment. Suppose that you are very impressed with the burdens associated with welfare rights. The more impressed you are, the better reasons you will think you have for the truth of the second premise of the welfare rights argument or some first cousin of it. So far so good for Brown. However, the very same considerations make it less likely that you will think that you have good reasons for the truth of the first premise of the welfare rights argument or any first cousin of it. Accordingly, there are good reasons for thinking that the truth of both premises of the Brown's welfare rights argument or any version of it is incompatible with any doctrine of welfare rights whatsoever. Thus, Brown's welfare rights argument suffers from a major internal problem. We can conclude that Brown's argument for rejecting the potential future of value account of the wrongness of killing is subject to at least three serious problems.

A consistency problem

Brown claims that the potential future of value account of the wrongness of killing is plausible only because it is confused with a self-represented future of value account. Brown believes that a self-represented future of value account is plausible.4 What is a self-represented future of value? According to Brown it is created by a person who “can project a representation of a self which extends over time”.4 “Persons care about their self-represented futures and their memories . . . ”4 “The value of a self-represented future resides with the person herself, as a feature of a richly complex mental life. Killing a person deprives her of this future: her hopes and dreams are dashed, her goals unfulfilled, her sins unforgiven, longed for reunions and reconciliations never occur.”4

Brown's self-represented future of value account of the wrongness of killing seems to be vulnerable to an argument obtained by altering Brown's original welfare rights argument so that it applies to self-represented futures of value. Here is the altered argument: Premise 1: If having a self-represented future of value is the basis of the right not to be killed, then human beings have a welfare right to what they need to stay alive. Premise 2: Human beings do not have a welfare right to what they need to stay alive. Conclusion: Therefore, having a self represented future of value is not the basis of the right not to be killed.

Recall that Brown defended the first premise of his original welfare rights argument by appeal to the true assertion that “[s]omeone who has been killed and someone who has been denied access to life support have been deprived equally of their potential futures”.3 Apparently, someone who has been killed and someone who has been denied access to life support also have been deprived equally of their self-represented futures. Thus, if Brown's sole argument for the first premise of his welfare rights argument were good, then an equally good argument for the first premise of this altered welfare rights argument can be constructed. The second premise of this altered welfare rights argument is the same as the second premise of Brown's original welfare rights argument. Thus, even if we forget all of the problems with the welfare rights argument discussed in the previous section, it appears that Brown's overall view is subject to a serious structural problem. His own critique of the potential future of value account of the wrongness of killing can easily be altered and applied to his own self-represented future of value account of the wrongness of killing. Either that critique is sound or it is not. If it is, then Brown's self-represented future of value account of the wrongness of killing should be rejected. If it is not, then the argument he offers for rejecting the potential future of value account of the wrongness of killing is unsound.

Apparently Brown saw this problem on the horizon and tried to avoid it. Here is one of his claims: “In contrast with potential futures, self-represented futures do not depend upon outside agencies for their realisation”.4 Will this do? Suppose your life depends upon a ventilator or dialysis or insulin. The realisation of your hopes, dreams, goals, that is, your self-represented future, plainly does depend upon the agency of others. Hence, Brown's claim is false.

Brown's other attempt to avoid this nasty little difficulty is to argue that: “One reason why killing persons violates their rights, but depriving them of life support need not, is that killing persons deprives them of a [self-represented] future and a past which is rightfully their own because it is something they themselves have created.”4

It is hard to understand what Brown is driving at here. Persons whose lives are dependent on ventilators or dialysis can have self-represented futures they have created. Why are these futures not rightfully their own, although they would be rightfully theirs if they were not ventilator or dialysis dependent? Brown gives no argument whatsoever for his puzzling and implausible assertion. Thus Brown has failed to find a way to avoid the incompatibility between the theory of the wrongness of killing he accepts and the argument that he uses against the theory of the wrongness of killing he rejects.

There is an interesting general issue here, analysis of which will help us see the problems at the heart of Brown's discussion of futures of value. Consider the obvious. Death is the loss of life. Because killing causes death, killing causes the loss of life. Killing someone causes a morally important loss. Brown's claim that “someone who has been killed and someone who has been denied access to life support have been deprived equally of their potential futures”3 is true because it is true of the loss of life in general, whatever the correct account, Brown's, mine, or another's, of exactly what it is about that loss that is morally significant. Thus, if we focus our attention only on the victim of the loss, as Brown does in the above quote, and think of why Brown's claim, limited to that focus, is true, an individual having the right not to be killed (for whatever reason) will have a welfare right to the means necessary to stay alive. There is another way of putting this point. Letting die is as bad as killing, if you consider only the consequences for the victim. Many people, especially those who believe that wrongfulness should be analysed solely in terms of the consequences of actions, have defended this so-called moral symmetry thesis, and, in my view, they are quite right to do so.5

Does this vindicate Brown's argument? Hardly. The above analysis shows why many believe that, if one considers only the victim, then all individuals having a right not to be killed also have a welfare right to be provided with what they need to stay alive. Now add Brown's claim that there is no welfare right to be provided with what one needs to stay alive. It follows that no one has the right not to be killed! Thus, if we analyse the considerations that underlie Brown's argument, we can infer, not only that it is morally permissible to kill fetuses, but that it is morally permissible to kill anyone at all, even you, me, or Brown! This is certainly a pro-choice view, although the choice is a bit more extensive than you, I, or Brown may want to accept. What went so terribly wrong?

Brown's argument strategy is subject to two problems. One is that the claim that leads from the right not to be killed to a welfare right to the means necessary to stay alive focuses exclusively on consequences. The claim that there is no welfare right to the means necessary to stay alive is typically based upon deontological considerations, that is, on the claim that the alleged duty to provide others with assistance is incompatible with one's rights to “autonomy, bodily integrity, and wellbeing” combined with the claim that considerations of rights trump considerations of welfare.3 Combining such rather different ethical perspectives arrived at independently in the same argument leads to our absurdly pro-choice view. The second is that the considerations that seem to generate so easily a welfare right to the means necessary to stay alive involve only (or primarily) the victim, not the burdens that such a welfare right may impose on others. The considerations in favour of rejecting a welfare right to the means necessary to stay alive involve emphasising the burdens of welfare on others. When different premises of the same argument presuppose such incompatible assumptions, one should not be surprised that the conclusion that can be generated is bizarre.

Is the self-represented future of value account adequate?

Nothing in the preceding analysis revealed any flaw in Brown's self-represented future of value account of the wrongness of killing. All the analysis so far has shown is that Brown's account of the wrongness of killing is incompatible with an altered welfare rights argument and a defence of that argument's premises. However, that altered welfare rights argument is unsound. Thus, both the potential future of value account and the self-represented future of value account of the wrongness of killing are compatible with the preceding analysis of this essay. If there were nothing more to be said, then the self-represented future of value account might be preferred to the potential future of value account for reasons of gender equity. This is because the wrongness of abortion would impose burdens on women that it would not impose on men and one might argue that choosing an account of the wrongness of killing that imposes such burdens on one gender, but not on the other, is unjust.

Is the self-represented future of value account of the wrongness of killing defensible? Evaluating its merit requires unpacking at least one ambiguity. At least two versions of the self-represented future of value account can be distinguished: a future version and a present version. On the future version, what underwrites the wrongness of killing is preventing the future states of which one has a present representation, that is, what one's self-represented future of value is a representation of, from occurring. On the present version, what underwrites the wrongness of killing is depriving someone of the present mental representations themselves of that valuable future.

Consider first the future version. Brown says: “Killing a person deprives her of her future: her hopes and dreams are dashed, her goals unfulfilled, her sins unforgiven, longed for reunions and reconciliations never occur.”4

This suggests that Brown believes that killing is wrong because it prevents such future states from coming about. These future states have at least four characteristics: they are imagined by a subject; they include the subject; they are valued by the subject, and, of course, they are in the future.

Is killing wrong because it deprives someone of the actualisation of such imagined future states? Suppose Albert dreams of becoming a physician. Burt kills Albert. Albert, however, was not a diligent student, had little scientific aptitude, and would not have been admitted to medical school if he had lived. Killing Albert was certainly wrong, but it was not wrong because killing him prevented his dream of becoming a physician from being realised. His dream would not have been realised even if he had lived. Thus, in general, one cannot be deprived of a self-represented future of value to the extent that such a future of value is unrealistic. At best, only the realistic components of a self-represented future of value can underwrite the wrongness of killing.

Suppose that we modify the future version of Brown's self-represented future of value account of the wrongness of killing to avoid this difficulty. Suppose we say that depriving a person of the realistic components of a self-represented future of value underwrites the wrongness of killing. This modification clearly makes Brown's theory more plausible. However, the plausibility has a price. The realism condition is simply a way of introducing a potential future of value condition into the future version of the self-represented future of value account of the wrongness of killing. This does not look good for Brown, for the potential future of value account is the account that he wishes to reject. Brown could argue, however, that it is wrong to deprive someone of a future of value only if the future of value is both potential and self-represented. Because self-representation is a necessary part of the account, this realistic future version of a self-represented future of value account does not imply that abortion is wrong.

Now that a potential future of value is part of the account, is a self-represented future of value really necessary? Suppose that Alice, due to severe bipolar disease, is now unable to represent to herself any remotely desirable future of value. Is it permissible to kill Alice because she lacks a self-represented future of value? Surely not. Why not? After Alice is treated for her mental illness, Alice's life will be actually valuable to her. But now the self-represented future of value has dropped out of our combined potential future of value and self-represented future of value account of the wrongness of killing.

Other examples also show that the realistic future version of Brown's self-represented future of value account is inadequate. Consider Charles who lives only for the present and believes that thinking about one's future is a waste of time. “Eat, drink, and be merry, for tomorrow we may die” he says. Consider the adolescent who has no concept of the value of the life of anyone so old as to be over twenty-five. Surely killing both Charles and the adolescent is wrong, not only because it deprives them of the quite limited life they envisage, but because it also deprives them of the considerable span of life they (probably) will come to value. This potential future of value consideration accounts, as this version of Brown's account does not, for our belief that murder is such a major wrong.

To sum up: A simple future version of a self-represented future of value account of the wrongness of killing is too broad. To the extent that one's self-represented future is unrealistic, killing does not deprive the victim of it. A realistic future version of a self-represented future of value account is too narrow. Analysis of the problems with it leads back to the potential future of value account in which self representations are unnecessary. Apparently, all future versions of the self-represented future of value account of the wrongness of killing are less adequate than a potential future of value account.

Can a present version of the self-represented future of value account escape the difficulties with either of the future versions of that account? Brown sometimes writes as if a present version of a self-represented future of value is what he has in mind. He refers to these “mental representations, all of which are expressions of the current mental state of a self-conscious person”.4 And he writes of a self-represented future of value that “All of this happens in the present, to a person able to unite in a moment of self-consciousness a personal past, present and future”.4 When he emphasises that a self-represented future of value is something we have created, he apparently is thinking of a present mental representation, not what that representation is of. The former we create; the latter we do not necessarily create. On the present version of the self-represented future of value account, what killing wrongfully deprives one of is a present mental state, not a future state.

A simple present version of the self-represented future of value account suffers from a certain difficulty concerning time. Killing me now cannot deprive me of the mental representation I am presently having for a number of reasons. The first is that the act of killing takes time. The second is that because I am now actually having a mental representation of my future of value, that mental representation exists. What I now have, I have, whatever you do, and that is the end of it. You cannot deprive me of that. What you can now deprive me of is a mental representation I would have had in the immediate, or not so immediate, future. This difficulty is merely a corollary of the famous Epicurean epigram: “When I am, death is not and when death is, I am not”.6 Because I cannot be deprived of my present self-represented future of value, the simple present version of the self-represented future of value account of the deprivation involved in killing is unsatisfactory.

Consider a strategy for resolving this problem. Although you cannot deprive me of the present mental representations I am now having, you can deprive me of any future mental representations, including, importantly, those of my contemplated valuable future. To accommodate this insight, we could modify a present self-represented future of value account so that it becomes a future present self-represented future of value account. Notice that, on this modification, killing us now would deprive us of (future) mental representations themselves, not what the (future) mental representations are representations of.

This future present version of the self-represented future of value account has a number of virtues. The self represented futures under consideration are futures of which we actually can be deprived. Furthermore, depriving us of them would, other things being equal, clearly be wrong. Nevertheless, this account has a major drawback from Brown's point of view. It does not underwrite the permissibility of abortion. Fetuses, if killed, are deprived of future self-representations of their futures of value. Accordingly, this version of Brown's self-represented future of value account of the wrongness of killing is hardly an account Brown would want to endorse.

It is worth noting that it is not an account that someone opposed to abortion should endorse either. When an oncologist informs her patient, however kindly, of a bad prognosis, she is depriving that patient of (typically many) future self representations of a future of value. Thus if the future present version of the self-represented future of value account were true, then an oncologist's candour would be almost as wrong as killing her patient. Since it is plainly not the case that an oncologist's candour is almost as wrong as killing her patients, the future present version of the self-represented future of value account is false.

In sum, Brown's self-represented future of value account of the wrongness of killing is profoundly ambiguous. It appears plausible only when different versions of the account are not distinguished. When they are teased apart, all versions of the account are implausible.

Conclusion

Brown's critique of the potential future of value argument for the wrongness of abortion is subject to many difficulties. (1) Brown has given us no good reason to accept either premise of the welfare rights argument he gives for rejecting the first premise of the potential future of value argument. (2) Any plausibility possessed by the first premise of Brown's welfare rights argument depends on an assumption that is inconsistent with the assumption needed to make the second premise plausible. (3) The account of the wrongness of killing that Brown thinks is plausible is subject to the same sort of difficulty that Brown thinks is an adequate basis for rejecting the account of the wrongness of killing that he believes is unsound. (4) Brown's self-represented future of value account of the wrongness of killing is ambiguous in many ways and when the ambiguities are teased apart, no credible version of the self-represented future of value account can be discovered.

This discussion has been confined entirely to critical discussion of Brown's essay, independently of broader considerations relating to the potential future of value account, welfare rights and the burdens associated with pregnancy. A better context for these broader considerations is provided by a third welfare rights argument: Premise l: All individuals who possess whatever property it is that makes it wrong to kill them are individuals who (almost always) have a right to the means necessary to sustain their lives, if such means are available. Premise 2: Fetuses possess a property that makes it wrong to kill them. Conclusion: Therefore, fetuses (almost always) have a right to the means necessary to sustain their lives, if such means are available.

The point of the potential future of value account is to provide a basis for premise 2. Many people believe premise 1 to be true, not because they endorse the potential future of value account, but for entirely different reasons. Those who believe that the bare difference between killing and letting die is of no moral significance are often favourably inclined to something like premise 1. There are arguments that premise 1 would garner agreement from rational individuals behind the veil of ignorance if age is also behind that veil. Many utilitarians will be favourably inclined toward premise 1. Laws requiring that critically ill patients in the US not be turned away from emergency rooms even if they cannot pay seem to presuppose premise 1.

In my view this third welfare rights argument reveals the correct analytical framework for discussion of the issues in Brown's essay. Note that, in this analytical framework, the welfare rights issue and the merits of the potential future of value account are separable. Of course, I merely waved at arguments for premise 1 in the above paragraph. On the one hand, the waves show that making the case for rejecting premise 1 is no small task. On the other hand, whether the waves can be developed into actual good arguments requires, of course, further discussion.

Acknowledgments

I thank two anonymous referees for this journal for their helpful comments.

References and notes

0 Thoughts to “Tooley Marquis Abortion Essay

Leave a comment

L'indirizzo email non verrà pubblicato. I campi obbligatori sono contrassegnati *