Transcript Abortion & Personhood* Philosophy 2803 Lecture VII March 12, 2002

Abortion & Personhood*
Philosophy 2803
Lecture VII
March 12, 2002
*Some slides prepared by Dr. Barbara Barrowman
History
 There is evidence that abortion has been practiced
throughout human history (recipe for ‘abortion potion’
in Chinese text ~2600 BC)
 Hippocrates (5th Cent. BC) forbade abortions
 Plato and Aristotle (4th Cent. BC) endorsed it as a
means of population control
 In Western world, the debate on abortion has been
conducted predominantly in a religious context
History of Abortion Law in Canada
 1869 – Criminal law passed prohibiting
abortion, max. penalty life imprisonment
 1892 – First Criminal Code – criminalized not
only abortion, but also sale, distribution and
advertisement of contraception
 1969 – Decriminalization of contraception
– Introduction of the “therapeutic abortion”
exception
Criminal Code s. 251 (1969-1988)
 “251. (1) Every one who, with intent to procure the
miscarriage of a female person, … uses any means
for the purpose of carrying out his intention is guilty of
an indictable offence and is liable to imprisonment for
life.” (p. 320)
 It was also illegal for a woman to have an abortion,
although the penalty was less (up to 2 years)
 s.251 did allow for an exception for ‘therapeutic
abortions’
– Roughly, this means ‘medically required abortions’
Therapeutic Abortions under s. 251
 Abortion remained a crime (for abortion
provider and pregnant woman) unless:
– Carried out in an accredited or approved
hospital
– Approved in advance by majority of 3
member “therapeutic abortion committee”
– The continuation of pregnancy was likely to
endanger life or health of pregnant woman
– See pp. 320-1 for full text of s. 251
Morgentaler (S.C.C. 1988)
 5-2 decision, Court struck down s. 251 as
being contrary to the Charter
– s. 7 Every one has the right to life, liberty and security of the
person and the right not to be deprived thereof except in
accordance with principles of fundamental justice. (p. 322)
 Variety of reasons given in majority
judgments
– some were “technical”
– some were “substantive”
– for dissent, see pp. 328-330
‘Technical’
 s. 251 “clearly interferes with a woman’s bodily
integrity in both a physical and emotional sense.”
 S. 251 “therefore, is required by the Charter to
comport with the principles of fundamental justice.”
(p. 320)
 Majority held it did not. The structure of the law
created various problems
–
–
–
–
Unequal access
Delays (psychological stress, increased danger)
Lack of TAC in some areas
Vagueness of term “health” (includes psychological health?)
(see pp. 322-6)
– Could not be saved under section 1 of the Charter
‘Substantive’
 Primarily contained in Justice Wilson’s ruling (see pp.
330-333)
 Not all in the majority based their decision on
‘substantive’ reasons. All did acknowledge technical
problems.
 Wilson: what s.251 does is “asset that the woman’s
capacity to reproduce is not to be subject to her own
control…. she is truly being treated as [only] a means
[to an end] … Can there be anything that comports
less with human dignity and self-respect?” (p. 331)
– W. recognized a state interest in protecting the fetus but took
a developmental view of this (i.e., based on stage)
Post-Morgentaler
 Morgentaler did not rule out a new law on abortion,
nor take a clear stance on the moral status of the
fetus.
 Bill C-43 (1990) would have recriminalized abortion
except where woman’s doctor took view that her
health (including psychological health) was likely to
be threatened
– Passed by House of Commons, defeated by Senate 44-43
 Since then, no further attempt at federal legislation
 There are local policies in place restricting access to
abortion (e.g., Health Care Corp. of St. John’s)
Post-Morgentaler – Paternal Rights?
 1989 – 3 cases (Manitoba, Ontario, Quebec)
in which injunctions to prevent abortions were
sought by men alleging paternity
 Daigle v. Tremblay (S.C.C.)
– injunction struck down - potential father did not
have right to prevent abortion
– fetus not a “human being” under Quebec Charter,
– fetus must be born alive to enjoy legal rights
Post-Morgentaler – “Maternal-Fetal
Conflicts”
 Applications for judicial interference with
pregnant women in the alleged interest of the
fetus
 A number of these cases, most involving
maternal substance abuse/addiction, made
their way through the courts in the 1980’s and
90’s, with differing results
 This issue culminated in D.F.G. case (S.C.C.
1997)
Winnipeg Child and Family Services
v. D.F.G.
 Ms. G. 5 months pregnant with 4th child,
addicted to glue sniffing, 2 previous children
disabled and wards of state
 CFS made application for order to detain and
treat until birth of child
 Order initially granted, reversed on appeal
 In meantime Ms. G. successfully stopped
sniffing, gave birth to apparently normal child
 S.C.C. agreed to hear appeal anyway, given
importance of general issue
Winnipeg Child and Family Services
v. D.F.G. (S.C.C. 1997)
 7-2 decision
 Majority held that courts do not have
power to detain pregnant woman for
purpose of preventing harm to her
unborn child
– fetus not a “legal person” in Canadian law
– concern re “where to draw the line” if such
orders could be granted
 Up to legislatures if they want to change
this
Abortions per 1,000 Canadian
Women (1998)
women aged
15-44
women aged
20-24
Canada
16.1
32.9
NF & L
6.4
Abortions per 100 Live Births
(1998)
Total
Canada 32.2
NF & L
16.4
Women Women Women
< 15 yrs 15-19
>44 yrs
241.7
105.8
86.2
An Argument Against Abortion
P1: It is (generally) wrong to kill a human being
P2: Fetuses are human beings
P3: Abortion involves killing a fetus.
C: Abortion is (generally) wrong.
– Note: We will be using the word ‘fetus’ very loosely (i.e., so
that it covers all stages of development)
What’s Wrong with the Argument?
 The argument equivocates
– i.e., it uses a word in two distinct ways, without
acknowledging this
 P1 = It is (generally) wrong to kill a human being
– P1 is clearly true only if we have in mind a normative sense
of the word 'human‘
– i.e., a sense meaning something like ‘full member of the
moral community’.
– The term person is often used to describe this idea.
 P2 = Fetuses are human beings
– P2 is clearly true only if we have in mind a biological (i.e.,
descriptive) sense of the word ‘human’
– i.e., a sense meaning something like ‘genetically human’
What’s Wrong with the Argument?
 In order to make P1 obviously true we have to use
the word ‘human’ in such a way that it makes P2
questionable.
 In order to make P2 clearly true, we have to use the
word ‘human’ in such a way that it makes P1
questionable.
– See Sumner for more detail (especially, p. 354)
 What we need is a clearer understanding of the
normative sense of the word ‘human’
– We need an account of what a person is
Candidates for Personhood
 Uncontroversial:
– ‘normal’ adult human beings
 More Controversial:
–
–
–
–
–
–
Fetuses, infants, children
Animals
Robots, artificial intelligence, computers
Mentally disabled, severely physically disabled
Alzheimer’s patients
Aliens, Martians
Why Consider the Idea of
Personhood? (pp. 286-7)
1. Abortion
– Significance for abortion debate
– Is a human being a person at conception or only
at a later stage?
2. Technology
– New technology means new possible persons
– Medical technology (respirators, kidney machines,
pacemakers, artificial limbs, etc.)
– New reproductive technology (DNA manipulation,
cloning, etc.)
– Artificial intelligence and robotics
Why Consider the Idea of
Personhood? (Continued)
3. Organ Transplantation
– Organs from ‘living’ donors (i.e., humans who are
not persons) have a much better chance of not
being rejected than from organs from cadavers
 Accounts of death as the end of personhood
 Brain death vs. ‘complete’ death
4. Euthanasia
– Can human beings lose their personhood? (i.e.,
those in a coma, severely brain-damaged
individuals, Alzheimer sufferers, etc.)
– More next week
Why Consider the Idea of
Personhood? (Continued)
5. Legal and Political Significance
 Personhood has a long history, although not under
this name
– i.e., only citizens could vote in ancient Rome
 Certain kinds of rights belong only to persons
– Women were not recognized as legal persons in Canada
until 1929
– “The Persons Case”
 Children’s Rights? Animal rights?
– Are children persons? Are animals persons?
Possible Accounts of Personhood
1. Biological Account
2. Sentience Account
3. Self-consciousness Account
4. Relational Account
5. Soul Account
1. Biological Account
 Person = human being (homo sapiens)
 Strong point: This makes personhood
observable
– Science can tell us what is a human being and
what is not i.e. a human fetus is a member of the
species homo sapiens
 Although we must first settle what we mean by ‘human
being’ – genetically human, physically resembling a
‘normal’ adult human, etc. (See Sumner, pp. 351-353)
Problems with the Biological
Account
 Why should membership in a species be morally
relevant?
– Peter Singer compares “speciesism” with “racism” &
“sexism”.
– It involves arbitrarily drawing the lines of personhood to
exclude a group that deserves moral consideration.
– Would killing Martians be OK just because they are not
human?
– What makes us special?
2. The Sentience Account (or Bare
Consciousness)
 Person = sentient being
– Beings that are capable of feeling (i.e.,
experiencing pleasure and/or pain) are persons
 Peter Singer again:
– “The minimal characteristic which is needed to
give the embryo a claim to consideration is
sentience, or the capacity to feel pleasure or pain.
Until the embryo reaches that point, there is
nothing we can do ... which causes harm to it.”
Problems with the Sentience
Account
 How can we tell that a being is sentient?
– Will observable behaviour, brain scans,
etc. do the job?
 Is the theory too loose about what it
counts as a person?
– If we consider animals as capable of
feeling pleasure and/or pain then animals
are persons too
Canadian Medical Association, 1991
 “A human fetus becomes a person ... when the foetal
nervous system has developed to the point where it
has the basic capacity for sapient cognitive
awareness irrespective of level of sophistication.”
(CMA, Committee on Ethics, p. 290)
– Cognitive awareness? Is this different from bare
consciousness?
 Fetal personhood (fetus at 20 weeks = person)
 Frances Rosenberg: argues against the CMA
claiming that a fetus is not a person until born (pp.
300-1)
– Until the fetus is born, there is only one person.” (300)
– Similar view to relational account
3. Self-consciousness Account
 Person = self-aware being
 Persons must be aware of themselves as continuing
subjects of experience
– Note: consciousness ≠ conscience
– conscience is a mental state of appreciating what is right or
wrong, i.e. the little ‘devil’ and the little ‘angel’ on your
shoulders
 Not all animals would qualify on this account (but
some might, e.g., chimpanzees)
Problems with the Selfconsciousness Account
 How do we determine if something has selfconsciousness?
 Daniel Dennett: language (i.e. narrative) is required
to determine personhood
– Dennett excludes animals, fetuses, infants, and small
children as persons
 What about those who have amnesia – are they
different persons?
 If someone loses awareness of herself as a
continuing subject has she lost her personhood?
4. Relational Account
 Person = something able to engage in human
relationships
– Persons are social creatures (i.e. members of a community)
 Account is associated with feminist philosophy
 Susan Sherwin: “Fetuses are not persons because
they have not developed sufficiently social
relationships to be persons in any morally significant
sense... Newborns, although just beginning their
development into persons, are immediately subject to
social relationships.” (p. 341)
Problems with the Relational
Account
 What about those who are autistic or
those who suffer from schizophrenia?
– They are often unable to form certain sorts
of social relationships.
 No rudimentary social relationship
between mother and fetus?
5. Soul Account
 Person = being with a soul
 Historically, a very important view
 Central to many religious traditions
Problems with the Soul Account
 How can we test what has a soul and what does not?
– Do tables and chairs have souls? Do plants? Do animals?
Do humans?
– Would clones have souls?
 Do all living things have souls? If so does this mean
that a tree is a person too?
 Does this approach rely unreasonably on faith?
Groupwork
 A world-famous violinist has a fatal kidney ailment
 You alone have the right blood type, etc. to help
 You wake up to discover the violinist has been ‘attached’ to you
without your consent. He is now ‘using’ your kidneys.
 He will die due to kidney failure if he is disconnected now.
 He can be safely unhooked in several months
 You will suffer no long term effects but will obviously be greatly
inconvenienced over the next few months.
– Are you ethically obliged not to disconnect yourself from the
violinist?
Is Personhood as Important as
People Think?
 Important Point: Some things may matter
morally without being persons (e.g., animals)
 We’ll consider two arguments (one prochoice, one anti-abortion) that don’t rest on
claims about personhood
– Judith Jarvis Thomson “A Defense of Abortion”
– Don Marquis “Why Abortion is Immoral”
– Both are available on reserve
Suppose the fetus is a person…
A possible argument:
P1: A person has a right to life.
P2: A person has a right to control what happens to her body.
P3: In a case in which a woman wants an abortion, one of the
above rights will be violated no matter what, either the woman’s
right to control her body or the fetus’ right to life.
P4: If someone's right will be violated either way, morality requires
that we should violate whichever is the least important right.
P5: The right to life always outweighs the right to control one's
body.
C: Abortion is wrong.
Thomson: The Violinist Example
 From a famous article by Judith Jarvis
Thomson
– A world-famous violinist has been attached to you
without your consent.
– He will die due to kidney failure if he is
disconnected now.
– He can be safely unhooked in nine months.
The Point of the Violinist Example
 Thomson's Claim: It would be nice of you to remain
hooked up, but, morally speaking, you don't have to
stay hooked up.
– So what?
 Thomson's Point: Another person’s right to life
doesn't always trump the right to control your body.
– i.e., P5 is wrong
– If she’s right, then even if the fetus is a person, it doesn’t
follow that abortion is necessarily wrong.
The Remaining Question
 Even if you accept Thomson’s claims about the
Violinist Example, this doesn’t lead to a clear position
on abortion.
– Clearest application is to cases in which the pregnant
woman’s life is threatened
 The Big Question: When does the fetus’ right to life
'trump' the right to control your body?
– Thomson’s Answer: What makes a difference is whether the
fetus has been ‘invited in’
– Clearly not in case of rape
– What about sex without contraception?
– Sex with contraception?
Marquis: Why Abortion is Immoral
 Question: Why is it wrong to kill ‘ordinary’ people?
– "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 loss of one's life is
one of the greatest losses one can suffer. The loss of one's
life deprives one of all the experiences, activities, projects
and enjoyments that would have constituted one's future.”
 Killing us is wrong because it deprives us of a
particular kind of future, 'a future-like-ours'.
Marquis’ Argument
 Abortion is wrong in most cases because most
fetuses have a future-like-ours.
– Notice that this is not an argument based on the concept of
being a person. It seems to rely on the potential to be a
person.
 A Possible Exception: "Presumably abortion could be
justified in some circumstances, only if the loss
consequent on failing to abort would be at least as
great.”
– E.g., if the pregnancy threatens the woman’s life
Questions for Marquis
 What would this argument tell us about
the moral status of contraception?
 Is his account of what’s wrong with
killing correct?
– An alternative suggestion: killing an
ordinary human being is wrong because it
deprives a person of a future-like-ours
The Point
 You may be convinced by neither
Thomson’s argument nor Marquis’
 They do make a case that it is a mistake
to think that all, or even most, ethical
questions about abortion would be
answered by resolving the issue of
whether fetuses are persons.