Jane English, “Abortion and the Concept of a Person,”

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Jane English, “Abortion and the Concept of a Person,”

(Canadian Journal of Philosophy, 5,2 (Oct, 1975))
The abortion debate rages on. Yet the two most popular positions seem to be clearly mistaken. Conservatives maintain that a human life begins at conception and that therefore abortion must be wrong because it is murder. But not all killings of humans are murders. Most notably, self defense may justify even the killing of an innocent person.

Liberals, on the other hand, are just as mistaken in their argument that since a fetus does not become a person until birth, a woman may do whatever she pleases in and to her own body. First, you cannot do as you please with your own body if it affects other people adversely. Second, if a fetus is not a person, that does not imply that you can do to it anything you wish. Animals, for example, are not persons, yet to kill or torture them for no reason at all is wrong.

At the center of the storm has been the issue of just when it is between ovulation and adulthood that a person appears on the scene. Conservatives draw the line at conception, liberals at birth. In this paper I first examine our concept of a person and conclude that no single criterion can capture the concept of a person and no sharp line can be drawn. Next I argue that if a fetus is a person, abortion is still justifiable in many cases; and if a fetus is not a person, killing it is still wrong in many cases. To a large extent, these two solutions are in agreement. I conclude that our concept of a person cannot and need not bear the weight that the abortion controversy has thrust upon it.
The several factions in the abortion argument have drawn battle lines around various proposed criteria for determining what is and what is not a person. … These approaches are typical: foes of abortion propose sufficient conditions for personhood which fetuses satisfy, while friends of abortion counter with necessary conditions for personhood which fetuses lack. But these both presuppose that the concept of a person can be captured in a strait jacket of necessary and/or sufficient conditions. Rather, 'person' is a cluster of features, of which rationality, having a self concept and being conceived of humans are only part.

What is typical of persons? Within our concept of a person we include, first, certain biological factors: descended from humans, having a certain genetic makeup, having a head, hands, arms, eyes, capable of locomotion, breathing, eating, sleeping. There are psychological factors: sentience, perception, having a concept of self and of one's own interests and desires, the ability to use tools, the ability to use language or symbol systems, the ability to joke, to be angry, to doubt. There are rationality factors: the ability to reason and draw conclusions, the ability to generalize and to learn from past experience, the ability to sacrifice present interests for greater gains in the future. There are social factors: the ability to work in groups and respond to peer pressures, the ability to recognize and consider as valuable the interests of others, seeing oneself as one among "other minds," the ability to sympathize, encourage, love, the ability to evoke from others the responses of sympathy, encouragement, love, the ability to work with others for mutual advantage. Then there are legal factors: being subject to the law and protected by it, having the ability to sue and enter contracts, being counted in the census, having a name and citizenship, the ability to own property, inherit, and so forth.

Now the point is not that this list is incomplete, or that you can find counter-­instances to each of its points. People typically exhibit rationality, for instance, but someone who was irrational would not thereby fail to qualify as a person. On the other hand, something could exhibit the majority of these features and still fail to be a person, as an advanced robot might. There is no single core of necessary and sufficient features which we can draw upon with the assurance that they constitute what really makes a person; there are only features that are more or less typical.

This is not to say that no necessary or sufficient conditions can be given. Being alive is a necessary condition for being a person, and being a U.S. Senator is sufficient. But rather than falling inside a sufficient condition or outside a necessary one, a fetus lies in the penumbra region where our concept of a person is not so simple. For this reason I think a conclusive answer to the question whether a fetus is a person is unattainable. …

Nonetheless, it does seem clear that a fetus has very few of the above family of characteristics, whereas a newborn baby exhibits a much larger proportion of them-and a two-year-old has even more. Note that one traditional anti-abortion argument has centered on pointing out the many ways in which a fetus resembles a baby. They emphasize its development ("It already has ten fingers. . .") without mentioning its dissimilarities to adults (it still has gills and a tail). They also try to evoke the sort of sympathy on our part that we only feel toward other persons ("Never to laugh. . . or feel the sunshine?"). This all seems to be a relevant way to argue, since its purpose is to persuade us that a fetus satisfies so many of the important features on the list that it ought to be treated as a person. Also note that a fetus near the time of birth satisfies many more of these factors than a fetus in the early months of development. This could provide reason for making distinctions among the different stages of pregnancy, as the U.S. Supreme Court has done.

For these reasons I believe our concept of a person is not sharp or decisive enough to bear the weight of a solution to the abortion controversy. …

Next let us consider what follows if a fetus is a person after all. Judith Jarvis Thomson's landmark article, "A Defense of Abortion," correctly points out that some additional argumentation is needed at this point in the conservative argument to bridge the gap between the premise that a fetus is an innocent person and the conclusion that killing it is always wrong. To arrive at this conclusion, we would need the additional premise that killing an innocent person is always wrong. But killing an innocent person is sometimes permissible, most notably in self defense. Some examples may help draw out our intuitions or ordinary judgments about self defense.

Suppose a mad scientist, for instance, hypnotized innocent people to jump out of the bushes and attack innocent passers-by with knives. If you are so attacked, we agree you have a right to kill the attacker in self defense, if killing him is the only way to protect your life or to save yourself from serious injury. It does not seem to matter here that the attacker is not malicious but himself an innocent pawn, for your killing of him is not done in a spirit of retribution but only in self defense.

How severe an injury may you inflict in self defense? In part this depends upon the severity of the injury to be avoided: you may not shoot someone merely to avoid having your clothes torn. This might lead one to the mistaken conclusion that the defense may only equal the threatened injury in severity; that to avoid death you may kill, but to avoid a black eye you may only inflict a black eye or the equivalent. Rather, our laws and customs seem to say that you may create an injury somewhat, but not enormously, greater than the injury to be avoided. To fend off an attack whose outcome would be as serious as rape, a severe beating or the loss of a finger, you may shoot; to avoid having your clothes torn, you may blacken an eye.

Aside from this, the injury you may inflict should only be the minimum necessary to deter or incapacitate the attacker. Even if you know he intends to kill you, you are not justified in shooting him if you could equally well save your­self by the simple expedient of running away. Self defense is for the purpose of avoiding harms rather than equalizing harms.

Some cases of pregnancy present a parallel situation. Though the fetus is itself innocent, it may pose a threat to the pregnant woman's well-being, life prospects or health, mental or physical. If the pregnancy presents a slight threat to her interests, it seems self defense cannot justify abortion. But if the threat is on a par with a serious beating or the loss of a finger, she may kill the fetus that poses such a threat, even if it is an innocent person. If a lesser harm to the fetus could have the same defensive effect, killing it would not be justified. It is unfortunate that the only way to free the woman from the pregnancy entails the death of the fetus (except in very late stages of pregnancy). Thus a self defense model supports Thomson's point that the woman has a right only to be freed from the fetus, not a right to demand its death. …

Thanks to modern technology, the cases are rare in which a pregnancy poses as clear a threat to a woman's bodily health as an attacker brandishing a switchblade. How does self defense fare when more subtle, complex and long-­range harms are involved?

To consider a somewhat fanciful example, suppose you are a highly trained surgeon when you are kidnapped by the hypnotic attacker. He says he does not intend to harm you but to take you back to the mad scientist who, it turns out, plans to hypnotize you to have a permanent mental block against all your knowl­edge of medicine. This would automatically destroy your career which would in turn have a serious adverse impact on your family, your personal relationships and your happiness. It seems to me that if the only way you can avoid this out­come is to shoot the innocent attacker, you are justified in so doing. You are defending yourself from a drastic injury to your life prospects. I think it is no exaggeration to claim that unwanted pregnancies (most obviously among teen­agers) often have such adverse life-long consequences as the surgeon's loss of livelihood.

Several parallels arise between various views on abortion and the self defense model. Let's suppose further that these hypnotized attackers only operate at night, so that it is well known that they can be avoided completely by the considerable inconvenience of never leaving your house after dark. One view is that since you could stay home at night, therefore if you go out and are selected by one of these hypnotized people, you have no right to defend yourself. This parallels the view that abstinence is the only acceptable way to avoid pregnancy. Others might hold that you ought to take along some defense such as Mace which will deter the hypnotized person without killing him, but that if this defense fails, you are obliged to submit to the resulting injury, no matter how severe it is. This parallels the view that contraception is all right but abortion is always wrong, even in cases of contraceptive failure.

A third view is that you may kill the hypnotized person only if he will actually kill you, but not if he will only injure you. This is like the position that abortion is permissible only if it is required to save a woman's life. Finally we have the view that it is all right to kill the attacker, even if only to avoid a very slight inconvenience to yourself and even if you knowingly walked down the very street where all these incidents have been taking place without taking along any Mace or protective escort. If we assume that a fetus is a person, this is the analogue of the view that abortion is always justifiable, "on demand."

… What if, after birth, the presence of an infant or the need to support it posed a grave threat to the woman's sanity or life prospects? She could escape this threat by the simple expedient of running away. So a solution that does not entail the death of the infant is available. Before birth, such solutions are not available because of the biological dependence of the fetus on the woman. Birth is the crucial point not because of any characteristics the fetus gains, but because after birth the woman can defend herself by a means less drastic than killing the infant. Hence self defense can be used to justify abortion without necessarily thereby justifying infanticide.

On the other hand, supposing a fetus is not after all a person, would abortion always be morally permissible? Some opponents of abortion seem worried that if a fetus is not a full-fledged person, then we are justified in treating it in any way at all. However, this does not follow. Non-persons do get some consideration in our moral code, though of course they do not have the same rights as persons have (and in general they do not have moral responsibilities), and though their interests may be overridden by the interests of persons. Still, we cannot just treat them in any way at all.

Treatment of animals is a case in point. It is wrong to torture dogs for fun or to kill wild birds for no reason at all. It is wrong Period, even though dogs and birds do not have the same rights persons do. However, few people think it is wrong to use dogs as experimental animals, causing them considerable suffering in some cases, provided that the resulting research will probably bring discoveries of great benefit to people. And most of us think it all right to kill birds for food or to protect our crops. People's rights are different from the consideration we give to animals, then, for it is wrong to experiment on people, even if others might later benefit a great deal as a result of their suffering. …

But how do we decide what you mayor may not do to non-persons? This is a difficult problem, one for which I believe no adequate account exists. You do not want to say, for instance, that torturing dogs is all right whenever the sum of its effects on people is good…

An ethical theory must operate by generating a set of sympathies and attitudes toward others which reinforces the functioning of that set of moral principles. Our prohibition against killing people operates by means of certain moral sentiments including sympathy, compassion and guilt. But if these attitudes are to form a coherent set, they carry us further: we tend to perform supererogatory actions, and we tend to feel similar compassion toward person-like non-persons. …

If our moral rules allowed people to treat some person-like non-persons in ways we do not want people to be treated, this would undermine the system of sympathies and attitudes that makes the ethical system work. … Thus it makes sense that it is those animals whose appearance and behavior are most like those of people that get the most consideration in our moral scheme.

It is because of "coherence of attitudes," I think, that the similarity of a fetus to a baby is very significant. A fetus one week before birth is so much like a newborn baby in our psychological space that we cannot allow any cavalier treat­ment of the former while expecting full sympathy and nurturative support for the latter. Thus, I think that anti-abortion forces are indeed giving their strongest arguments when they point to the similarities between a fetus and a baby, and when they try to evoke our emotional attachment to and sympathy for the fetus. An early horror story from New York about nurses who were expected to alter­nate between caring for six-week premature infants and disposing of viable 24­ week aborted fetuses is just that -a horror story. These beings are so much alike that no one can be asked to draw a distinction and treat them so very differently.

Remember, however, that in the early weeks after conception, a fetus is very much unlike a person. It is hard to develop these feelings for a set of genes which doesn't yet have a head, hands, beating heart, response to touch or the ability to move by itself. Thus it seems to me that the alleged "slippery slope" between conception and birth is not so very slippery. In the early stages of pregnancy, abortion can hardly be compared to murder for psychological reasons, but in the latest stages it is psychologically akin to murder. …

Michael Tooley also utilizes a parallel with animals. He claims that it is always permissible to drown newborn kittens and draws conclusions about infanticide. But it is only permissible to drown kittens when their survival would cause some hardship. Perhaps it would be a burden to feed and house six more cats or to find other homes for them. … But if their survival would be no inconvenience to people at all, then it is wrong to drown them, contra Tooley.

… I agree with Thomson that it would be wrong for a woman who is seven months pregnant to have an abortion just to avoid having to postpone a trip to Europe. In the early months of pregnancy when the fetus hardly resembles a baby at all, then, abortion is permissible whenever it is in the interests of the pregnant woman or her family. The reasons would only need to outweigh the pain and inconvenience of the abortion itself. In the middle months, when the fetus comes to resemble a person, abortion would be justifiable only when the continuation of the pregnancy or the birth of the child would cause harms­ - physical, psychological, economic or social - to the woman. In the late months of pregnancy, even on our current assumption that a fetus is not a person, abortion seems to be wrong except to save a woman from significant injury or death. …

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