The fetus & fundamental rights
Callahan, Joan C.
PUBLIC POLICY REQtJIRES COMPELLING REASONS The fetus & _ fundamental fights I I i I III I I I H II I JOAN C. CALLAHAN A LTHOUGH THE 1984 presidential election is history, the campaign raised a...
...Thus, it is because certain changes normally occur as a child matures into an adult that it is appropriate to set policies which acknowledge those changes...
...The granting of societal privileges is not solely a matter of arbitrariness, even if there is some arbitrariness in selecting particular ages for the commencement of such privileges...
...But are human fetuses persons...
...who is not biologically human), we would surely think he was a person -- a being with fundamental moral rights comparable to yours and mine...
...Six months after Roe v. Wade, Dr...
...B ISHOP TIMLIN'$ explicit comparison of abortion and slavery caught people's attention, but it failed as an analogy in at least three ways...
...Nor does it follow that one is necessarily morally obligated to seek legal prohibition of specific actions one believes morally wrong...
...Human life begins long before conception...
...Thus, we are confronted once again with the question of deciding where we shall set the convention of recognizing personhood...
...We just cannot deny that significant changes occur between the time of conception and that time a being simply must be recognized as a bearer of rights...
...In the accompanying article, Joan Cailahan argues that the reluctance...
...But we haven't anything like the same sort of moral certainty about the injustice of abortion...
...But by starting with Bishop Timlin's analogy, we might be able to clarify not only the particular question of abortion, but also the larger question of appropriate reasons for a politician's policy choices and the question of moral consistency in political life...
...Mondale had in mind that accepting the fetus as a full-fledged person commits us to measures in practice that even those who are deeply pro-life cannot fully accept...
...But if our public policy were to recognize the fetus as genuinely an innocent person, then its threat to a woman's life is an innocent threat, and the state can have no legitimate reason for preferring the life of the woman to the life of the fetus...
...Rather it is whether the human fetus should be recognized as a bearer of the same range of fundamental moral rights as you and I, including the right not to be killed without very good reason...
...Although the framework of her article is this legal-political question, she gives a diligent and valuable presentation of the arguments against fundamen, tal fetal rights...
...Let us look, for example, at just two of the implications of admitting human fetuses into the class of full-fledged persons with full-fledged fundamental rights...
...But we settle the issue by setting a convention which does not seem counterintuitive...
...Reagan has recognized) is that abortion in cases of rape or incest must be ruled out...
...You do not lose your right not to be killed simply by walking from one room to another...
...It left little doubt that Gov...
...The problem in the abortion debate is that there is a profound disagreement about the relative strengths of the philosophical reasons given for and against holding that elective abortion is the killing of an unconsenting innocent person for inadequate moral reasons...
...Although this is surely true, it was an inadequate response...
...And, of course, the film, E.T., turn~,on precisely this point...
...The fact that these two authors share the same last name is sheer happenstance...
...That is, just as one can allow that the first tiny Commonweal: 204bud in an acorn is the beginning of the life of a (future) oak tree, one is not committed to saying that the bud is already an oak tree...
...If we mean by "human being . . . . a member of the biological species homo sapiens," then (ignoring the problem of identical twins) it is true that the life of a unique human being begins at conception...
...Pleading that the target was possibly not a person is simply no defense...
...The bud and the tree simply are significantly different kinds of being...
...Human fetuses may thus have a far more significant moral standing than other beings of comparable sentience...
...After all, ifa hunter hears a movement in Commonweal: 206the bushes and shoots without making sure he or she is not shooting a person, and it turns out that the hunter has killed or injured a person, it is obviously a case of gross recklessness...
...All this takes us back to the acorn and the oak...
...Logic and fairness, in this view, compel us to accept that even the new conceptus has the same fundamental fight to life which you and I have...
...Reagan, "It won't work" -- a woefully inadequate response...
...What we are not entitled to do, it may be argued, is force a woman to complete a pregnancy because others have an interest in having her fetus...
...Indeed, like the mystery of the acorn and the oak, what is amazing is that such radically different beings emerge from such beginnings, and that at the end of the process we have beings very unlike those at the beginning of the process...
...But the claim that a distinct person emerges at conception is not a scientific but a moral claim...
...Those rigorously opposed to abortion on the ground that fetuses are persons must be explicit on the practical implications of their position...
...Since fetuses do not have the kinds of characteristics which compel us to recognize beings as persons, we must, whether we like it or not, sit down and decide whether as a matter of public policy fetuses are to be recognized as full-fledged persons...
...But once an infant emerges and others are able care for it, there are radical changes in what is involved in preserving its life...
...Deciding when to d classify a developing human being as a person is like deciding when to call a shoot a tree...
...If in asserting that "a human life begins at conception" the anti-abortionist means to assert a biological claim, she or he needs to demonstrate why we must conclude that accepting the biological claim commits us to accepting the moral claim as well...
...they are living human gametes...
...The articles were written entirely independently, and the authors are not related...
...Thus, the kind of reasoning I have sketched above does not logically commit the defender of elective abortion to a policy allowing infanticide...
...The question to be resolved, then, is whether these beings, which will emerge as persons if their lives are supported, ought to be treated, at this stage of their development, as if they were persons already -- beings with a moral fight to life comparable to yours and mine, comparably protected by the coercive power of the law...
...It does not follow from the fact that someone is unwilling to pursue a legal prohibition on some kind of activity that the person does not care if people engage in that activity...
...The question is a sensible one, and there are responsible philosophical reasons for concluding both yes and no~ And that's the rub...
...The reply from Geraldine Ferraro and Edward Kennedy was that it is not the proper business of the politician to impose her or his religious beliefs on members of a Ill ]1 1[ NTHIS ISSUE andthe~oxt, Commonweal is publishiag a ::" i pair of contrasting articles on abortion...
...Reagan and Mr...
...Kittens, after all, will never develop the kinds of characteristics that compel us to recognize them as full-fledged members of the moral community...
...But this is not true...
...We need, then, to make a distinction between those who hold that abortion is wrong solely because their religion says so, and those who think that abortion is wrong because they believe that the philosophical reasons compel society to accept that human fetuses have a right comparable to your right and mine not to be killed...
...Similarly, there is no clear distinction between where the Mississippi River ends and the Gulf of Mexico begins...
...Mondale (faintly echoing Governor Cuomo) said of the pro-life policy espoused by Mr...
...When asked in the same debate to explain his position on abortion, Mr...
...M Y OWN VIEW is that there are insurmountable difficulties in finding a compelling argument for the recognition of fetuses as persons that could justify imposing on a woman the particularly intimate burden of bearing an unwanted child...
...But this, it may be argued, is not the case when it comes to recognizing the right to life...
...of some politicians to support anti-abortion legislation, despite their personal opposition to abortion, is justified because the non-religious case for the unborn human's ~on t to life is much less compelling than many abortion ents suppose...
...Young trees do not have all the characteristics of grown trees (for example, children cannot safely swing from them...
...When we are trying to resolve this real question, we need to ask ourselves what granting fetuses the full range of fundamental moral rights would really involve in practice for society, and whether our shared moral views about paradigm cases of persons will allow us to accept these conclusions...
...Proper use of these privileges, it may be argued, requires a certain degree of maturity -- responsibility, background knowledge, experience, independence, and, in the case of driving, a certain physical dexterity...
...In just the same way, the new conceptus is very unlike beings who have the kinds of characteristics which compel us to recognize them as persons...
...And this would be because we would recognize that he has certain characteristics -- the capacity to suffer mental and physical pain, the ability to make plans, a sense of himself as an ongoing being, etc...
...First, while one can logically allow that the life of a person begins at conception, one does not have to allow that the (biological human) being present at conception is yet a person...
...We could not set driving or voting ages since withholding these privileges until a certain age discriminates against those close to that age -- an eighteenyearold is not radically different from a seventeen-and-ahalfyear-old, etc...
...Unfortunately, the most clever biologist in the world cannot answer this for us...
...We are faced with quite the same kind of question when it comes to the matter of persons...
...And this is not something that can be decided by simply observing the fetus, as a hunter might go and look in the bushes...
...That is, the anti-abortionist insists that after conception no changes occur that are relevant to recognizing the persorthood (and thus the right to life) of a human being...
...And part of what that means is that we may , not kill a fetus for reasons less than self-defense...
...Fundamental fights are not a consequence of where someone came from...
...The two claims are not equivalent...
...The anti-abortionist responds that those who admit that the life of a unique human being (in the biological sense) begins at conception are logically committed to granting that (insofar as human fetuses become distinct persons) the life of a distinct person begins at conception as well...
...And the crucial change is that sustaining an infant's life violates no right of its biological mother...
...which are sufficient to compel us to hold that he must (and must not) be treated in certain ways...
...Although fetuses are quite wonderful beings, they lack the kinds of characteristics that morally compel us to accept them as persons...
...Insofar as a Catholic politician's reason for holding that abortion is wrong is derived strictly from church teaching, there can be no obligation to try to impose a prohibition on those who do not share the same religious affiliation...
...It is to make the question of the morality of abortion sound as if it could be answered by a very clever biologist...
...If they do not agree that those who abort should be subject to the same sanctions as others who murder, then they do not really believe that the fetus has precisely the same moral status as you and I. There is yet another potent implication of the pro-life position...
...And you and I are significantly different from a conceptus, which has none of the characteristics which morally compel us to recognize it as a being with rights...
...First, refusing to use the law to fight a practice one believes is immoral does not imply that one does not care if people engage in that practice...
...It will also entail that we are not compelled to accept that human infants are beings of a kind which must be recognized as having the full range of fundamental moral fights, since infants are, it might be suggested, more like very young kittens in regard to the characteristics in question than they are like paradigm cases of persons...
...One possible convention proposes the recognition of personhood be set at birth...
...T HE CRUCIAL QUESTION, then, remains: Should we recognize the fetus as a person or as a potential person, a person-not-yet...
...We think this because the bud does not yet have the characteristics of oak trees...
...For otherwise, where did the life of any adult person begin...
...If anti-abortionists want to allow abortions in cases where the woman's life is at stake, then they must realize that implicit in their position is the view that the woman and the fetus are not of equal moral stature after all...
...Bush would both allow abortion in cases of self-defense -- i.e., in cases where the woman's life is threatened...
...But such implications, it is argued, show that this form of argument for fetal rights is severely flawed...
...When asked (in the first 1984 presidential debate with Walter Mondale) whether he believed we should treat women who abort for reasons other than self-defense as murderers, President Reagan avoided the question, saying that this would be a matter for the states to decide...
...Cuomo cares deeply about the practice of abortion...
...Another sets it at conception...
...If we accept that we can never treat beings who are not 11 April 1986:205radically different from one another in radically different ways, we shall be unable to justify all sorts of reasonable and necessary public policies...
...Bishop Timlin's analogy to slavery fails yet a third time because there are no such open questions about involuntary slavery...
...Bishop James Timlin of Scranton that Geraldine Ferraro's position on abortion was like saying," I'm personally opposed to slavery, but I don't care if people clown the street want to own slaves...
...Indeed, to hold that a woman has a right to terminate a pregnancy is not to hold that she also has a right to the death of her fetus if that fetus can survive...
...It is a problem of consistency -how can a politician personally believe that something is profoundly morally wrong, yet insist that he or she will not use political power to right the wrong...
...Marie Cuomo, in his thoughtful, if not wholly adequate speech at Notre Dame in September 1984, made that clear...
...It was inadequate because it seemed to treat public policy on abortion as if it were an issue parallel to that of eating meat on Friday or making one's Easter duty...
...The tiny bud in the acorn is quite clearly not an oak tree...
...Like all articles signed in Commonweal, these articles do not necessarily represent the viewpoint of the editors, who reserve the right to add their own comments later...
...For the real doubt is not whether a fetus is a person, but whether we should treat something which is obviously a potential person as if it were a person already...
...11 April 1986:203Second, Bishop Timlin's analogy is also faulty because it fails to recognize that the reasons one holds for judging something to be wrong are of the utmost importance in trying to decide whether to pursue a legal prohibition of a particular practice...
...Not long ago, Patrick Buchanan wrote of an experiment on twelve human fetuses, discussed in The Second American Revolution by John Whitehead...
...would have to treat But the anti-abortionist must answer this question squarely and honestly...
...What is more, if this woman were to perform an abortion on herself and get caught, we her as we treat any murderer...
...There is no radical change in the characteristics of an infant just before birth and just after birth...
...When, then, must we say of a developing human being that we must recognize it as a person, that it has the kinds of characteristics we take to be relevant to compelling a recognition of human personhood...
...But there are other reasons for being opposed to abortion -philosophical reasons which appeal to the laws of logic and to moral fights -- which Catholics and other believers might share with the most ardent atheist...
...A further anti-abortionist response argues that the reasoning used to defeat the argument for fetal fights cannot be correct, since it will not only rule out our being committed to the rights of fetuses...
...To couch the question in terms of when is the beginning of human life is to muddle the issue...
...But if this is the position one holds, the antiabortionist has a strong response: we should give the fetus the benefit of the doubt...
...H OW CAN WE possibly arrive at a convention which satisfactorally defines the inception of human personhood...
...We know that it is unjust to enslave people against their wills...
...Sometimes those who favor elective abortion say things like "the fetus might be a person, but the evidence is just not conclusive...
...The Catholic liberal Democrats thought and think this analogy fails...
...This logical point leads to a second, more substantive, disagreement...
...PUBLIC POLICY REQtJIRES COMPELLING REASONS The fetus & _ fundamental fights I I i I III I I I H II I JOAN C. CALLAHAN A LTHOUGH THE 1984 presidential election is history, the campaign raised a number of questions which have not been resolved, and which need more public discussion...
...T HOSE WHO oppose elective abortion often insist that human life begins at conception...
...Natural resources are not persons, but we are not at moral liberty to wantonly destroy them...
...I suspect Mr...
...but when a shoot begins to take on at least some of the characteristics of full-fledged trees, we think we are not confused in beginning to call that shoot a tree...
...The hunter should not have shot if there were even a remote possibility that a person would be injured...
...Either way, our reasons for deciding as we do must be more than religious ones if the purpose of deciding is to set policy in a pluralistic society...
...If the anti-abortionist cannot comfortably hold that jurisdictions should treat these women as they typically treat murderers, then he or she needs to begin to think carefully about why...
...Suppose that I were to discover that you are the product of rape or incest...
...That is, for the purpose of setting public policy in a religiously heterogeneous society, we must decide the question on the basis of non-religious, philosophical arguments...
...I cannot offer a full account here, but perhaps it will be enough to point out that if we came across a being like E.T...
...If an elective abortion is the killing of an unconsenting innocent person for reasons which would not justify killing an adult person, then it is wrongful killing, and the practice of abortion as it exists in this society cannot be morally justified...
...The Catholic politicians may not have been making a category mistake, but they certainly sometimes sounded as if they were...
...And since we haven't, those who recognize the complexity of the questions can hold, without being heartless or inconsistent, that they believe abortion is wrong, but also that they are unprepared to impose that view on those who remain reflectively unconvinced...
...The problem here is that while the life of a unique human being may begin at conception, this does not grant that a distinct person emerges at conception...
...Central to their position is frequently an argument known as "the logical wedge...
...From infancy, it is a short step to late-term fetuses, because (the argument goes) change in location (from the womb to the wider world) does not constitute an essential change in the being itself...
...THE EDITORS pluralistic society...
...Indeed, acorns with tiny buds are very unlike oak trees, even though every oak tree began as a bud in an acorn...
...Adam' and his associates cut the heads off these fetuses and cannulated the internal carotid arteries...
...Thus, quite the same reasons that can justify a proscription on infanticide can justify a requirement to sustain fetuses that survive abortion...
...And we must decide the question on the basis of the appropriate kinds of reasons...
...A eonceptus, however, has none of these characteristics...
...If the latter, it remains an open question what precise moral duties we might have toward the fetus...
...Still others opt for various stages of prenatality, while yet others recommend various points after birth...
...If this and this alone is indeed why she is personally opposed to abortion, it ought to be clear that she ,aad no more duty (or righ0 to try to institutionalize in law her opposition to abortion than she had to try to force Americans who do not share her religious affiliation to attend weekly Roman Catholic Mass...
...But reasons of the second kind (i.e., reasons appealing to the logic of human rights) are of the appropriate kind to justify or even require someone's working for legal prohibitions on certain actions or practices...
...The state must, as a matter of fairness to the fetus, do nothing that would give the woman an unfair advantage over the fetus in this battle for life between moral equals...
...In fact, part of a politician's obligation in a pluralistic society is to guard against just such impositions by religious groups...
...In just the same way, the opponent of elective abortion argues that if there is any possibility that the fetus is a person, we have a duty to act as if it were a person -- a duty to avoid acting recklessly...
...We all intuit this...
...Chief among these considerations are the facts that persons other than an infant's biological mother are able to care for the infant and have art interest in doing so...
...If some new, large religious constituency were to come to believe that zero population growth is the will of God, and if the government set out to codify in law this belief, Roman Catholics and other Christians would lead the ranks of civil disobedients...
...To call something "a person" is to assert that it is a bearer of strong moral rights...
...Kittens are not persons, but we are not at moral liberty wantonly to impose pain on them...
...But does this mean, as anti-abortionists point out, that since a fetus is a potential person from the moment of conception, it must, therefore, be granted the right to life...
...This objection is forceful but not devastating...
...The argument from self-defense simply cannot justify the state's allowing women the use of institutions and medical specialists that will systematically prefer the life of the woman to the life of the fetus...
...The sperm and egg are alive, and they are not bovine or feline or canine...
...Why it fails they never made clear...
...For, again, the question is one of deciding what convention we shall adopt...
...But even so, it does not follow from this that a woman may kill a child that can be cared for by others...
...But even then the dilemma remains exceedingly perplexing, for some of the arguments advanced urge us to recognize human fetuses as having the same range of rights as you or I, while others hold that this is simply not the case...
...But the question is not when human life begins...
...To allow that conception marks the beginning of the life of a (future) person does not commit one to saying that the conceptus is already a person...
...If we choose the former, then the full range of fundamental moral fights attaches to the fetus...
...In some jurisdictions, this might lead to life imprisonment or even execution...
...And this is to give the defender of the pro-choice position the very point that is crucial to his or her argument against the case for fetal fights, thereby turning the question back to the matter of deciding on a convention...
...The problem here is that to say a being is a potential person is to say that it is a person-not-yet, which is, of course, to deny that it is now a person...
...But arguments on the other side find this kind of reasoning faulty...
...Surely it will still be objected that human fetuses and human infants are beings that are potentially like paradigm cases of persons, and this makes them very unlike other beings...
...Reasons of the first kind (i.e., purely religious reasons) are excellent reasons for acting or not acting in certain ways in one's own life...
...Those who oppose elective abortion insist we recognize personhood at conception...
...Indeed, the position is fully consistent with holding that even though infants do not yet possess the kinds of characteristics which compel recognition of personhood, the fact that they are now biologically independent beings -- that can be sustained without forcing an unwilling woman to serve as a life support -- provides an excellent reason for setting the convention of a right to life at biological viability...
...Thus many Catholics and non-Catholics alike agreed with .IOAN C. CALLAHAN is an assistae~t professor in the philosophy department of Louisiana State University, Baton Rouge...
...If we allow that human fetuses are persons, we could not consistently allow abortion for (say) an eighteen-year-old woman who had been raped by her father...
...Adam of Case Western Reserve University reported to the American Pediatric Research Society that he and his associates had conducted an experiment on twelve fetuses, up to twenty weeks old, delivered alive by hysterectomy abortion...
...What constitutes these characteristics...
...But not everyone who talks in terms of the beginning of human life is making this mistake...
...And one can allow that even if infants do not (yet) have the characteristics which compel us to accept a being as a person, other considerations provide excellent reasons for taking birth as the best place to set the convention for recognizing personhood, with the full range of fundamental moral rights this entails, despite the fact that infants as such are far more like very young kittens than they are like beings whose characteristics compel us to accept them as full members of the moral community...
...In a pluralistic society, the fact that a religious institution, or a religious constituency (no matter how large) holds something to be wrong is not sufficient reason for setting a public policy...
...But it misses an important point...
...But even if this view is correct, it does not follow that we can do anything we want with human fetuses...
...They kept the heads alive, 11 April 1986:207...
...It would seem that human persons, like oak trees, are emergent beings...
...There are, however, at least two responses to this...
...Precisely what are we to do with those who abort...
...The argument proceeds by starting with beings everyone recognizes as having the rights in question and then by pointing out that a child (say) at fifteen is not radically different from one at fourteen and a half: and a child at fourteen and a half is not radically different from one at fourteen...
...This is a strong argument...
...The first thing that follows (as Mr...
...Thus, setting ages for the commencement of certain societal privileges cannot be morally justified, and we must give the five-year-old the right to vote, the nine-yearold the right to drink...
...In the 1984 vice-presidential debate, Congresswoman Ferraro made it clear that her reason for being personally opposed to abortion was that her church holds this as doctrine...
...In fact, many who oppose elective abortion contend that it is not just a matter of a human life beginning at conception, but more importantly that the life of a unique human being, of a distinct person, begins then...
...Many non-Catholics and non-believers have these kinds of reasons for holding that abortion is wrong, and so profoundly wrong that it might be rightly prohibited by law, even in a pluralistic society...
...This is a scientific biological claim and one that can be conclusively defended by scientists as such...
...You would not think (and none of us would think) that it followed from this that I could kill you...
...Not the least among these are the questions that surrounded Geraldine Ferraro's position on abortion -- a position that significantly disrupted her campaign, and which, during the early fall of 1984, put all liberal Democratic Catholic politicians into political trouble from which they have not yet escaped, The trouble was focused on abortion, but the problem is deeper than any single issue...
...This argument holds that if we are going to recognize older children as having the same human rights that you and I have, including the right not to be killed, then logic compels us to recognize that, from the moment of conception, all human beings must have those same fights...
...In the next issue, Sidney Callahan will deal with the abortion question, from a very different perspecfive, that of the "pro-life feminist...
...and from there the argument presses us back to thirteen, to twelve, and to infancy...
...Each of us can cite any number of examples (e.g., the selfish breaking of promises, the telling of lies to friends for bad reasons, etc...
...of actions we believe are morally wrong and about which we care, but which we do not (and should not) attempt to eradicate by law...
...Similarly, it is argued, mere change of place is not philosophically adequate to justify such a radical difference in treatment between infants and late-term fetuses, and finally we are back to conception...
...There is, however, a response to this criticism...
...but they are insufficient reasons for imposing legal requirements or legal restraints on those who do not share the same religious commitments...
...Can we accept that states may decide to imprison or execute them...
Vol. 113 • April 1986 • No. 7
