Don Marquis. Journal of Law, Medicine, and Ethics. Volume 34, Issue 1. Spring 2006.
How can the abortion issue be resolved? Many believe that the issue can be resolved if, and only if, we can determine when human life begins. Those opposed to abortion choice typically say that human life begins at conception. Many who favor abortion choice say that we will never know when human life begins. The importance of the when-does-human-life-begin issue is not so much argued for as it is taken to be self-evident. Furthermore, belief that this issue is fundamental is taken for granted—at least outside of philosophy—by many of the people who seem to disagree about almost everything else concerning abortion. It has been my experience that—with rare exceptions —even those who insist that the issue of abortion should focus on the interests of pregnant women believe that this focus is warranted because fetuses are either not yet fully alive or not yet fully human.
The prevalence of this assumption is illustrated by the structure of this conference. The session titled “The Beginning of Life” contains talks by two individuals who have written extensively about abortion and who disagree about its permissibility. Presumably those who put this conference together simply assumed that the abortion disagreement is a disagreement about when human life begins. This assumption is not unreasonable. It has been taken for granted at the highest levels. Consider, for example, the most famous legal opinions concerning abortion, the majority opinions in Roe v. Wade and Planned Parenthood v. Casey.
Justice Harry Blackmun, writing for the majority in Roe, said:
We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.
Blackmun went on to defend this view. First, he claimed that according to many religions and philosophies, life does not begin before live birth. According to him, the Stoics held this view, and it is the predominant attitude of the Jewish faith and “a large segment of the Protestant community.” Blackmun then cited the views of various groups that had, according to him, rejected the view that life begins at conception.
Second, Blackmun went on to defend the view that “In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth or to accord legal rights to the unborn….” He concluded that the court had neither judicial precedent nor philosophical or theological authority for making a decision based on the judgment that life begins before live birth. It is not hard to understand how this conclusion, when combined with women’s liberty rights or privacy rights, leads to the permissibility of abortion.
Blackmun’s view deserves discussion. Suppose it is true that life does not begin before live birth. Given this, what is the appropriate way to think of fetuses? It follows from our supposition that we should not think of fetuses as now actually alive. Since life presumably begins at the time of live birth, these fetuses will become alive at a later date under favorable environmental conditions. This explains, at least in part, why, when thinking of fetuses, Blackmun spoke of the state’s legitimate interest in “protecting the potentiality of human life” (my emphasis).
This same language turns up often in Planned Parenthood v. Casey. In this opinion the State’s interest in potential life, or the State’s interest in the protection of potential life is repeatedly mentioned. What is the nature and extent of this interest? One would naturally suppose the Court to be claiming that the State has some interest in the protection of a fetus in virtue of its interest in potential life. There is, however, a problem with this supposition. If the State has an interest in fetuses because they are potential lives, then the State should also have an interest in gametes because they are potential lives. We know something about the importance of this latter interest. The State’s interest in the contents of condoms as they are discarded seems to be as minimal as possible. But if this is so, then the Court’s talk about the State’s interest in the potential life of fetuses seems to belong more to the category of rhetorical fluff than to the category of substantive legal doctrine.
Reflection on Blackmun’s view suggests another question. Just what is the nature of this potential life in which the State is supposed to have an interest? Potential life talk seems to result from the denial that there is good reason for believing that fetuses are actually alive, and the acknowledgement that under the appropriate conditions the individuals in the fetal phase of existence would later be actually alive. Neither of these characterizations are of the present nature of fetuses. Certainly it is legitimate to ask what about a fetus, when it is a fetus, makes it potentially alive? If one considers what it is about fetuses that distinguishes them from other things that one would not dream of characterizing as potentially alive, such as rocks, one thinks of features such as metabolism, cell division, growth, and development into something that we might call a mature human being. The trouble with paying much attention to these features is that they seem to be signs of actual life. But the point of the talk about potential life was to deny this. This suggests that the Court’s claim about the State’s interest in potential life is incoherent.
Consider two possible objections to the analysis offered above. One might object that I have selected texts from the famous abortion opinions to support it. To some extent, this is true. Sometimes the Court in Casey speaks of the State interest in protecting the life of the unborn. Taken literally this must mean the actual life, rather than the potential life. However, there is reason not to take this literally. The State interest in human life is a very significant interest. It explains why the State regards murder as a very serious crime. The Court would have had very great difficulty arriving at its decision if this language about actual life were to be taken as something other than a linguistic slip.
The second possible objection is that sometimes when the Court speaks of when life begins, the Court seems, rather, to be thinking of the conditions under which the interests of human fetuses should be respected—what philosophers call fetal moral status. Accordingly, one might object that if one understands the Court this way, the argument that there is a problem with the Court opinion because fetuses are actually biologically alive would have no force. Inferences from biological properties to moral properties are invalid in the absence of additional premises.
This objection won’t do either. There is absolutely no doubt, of course, that the Court in both Roe and Casey was concerned with the question of fetal moral status. However, it does not follow from this that the Court was not concerned with the question of when life begins. It seems clear that the issues of whether the fetus has moral status and when life begins were considered to be equivalent by the Court. They simply took for granted what I shall call in this essay “the standard view.” The standard view is the common view that all living human beings have the right to life because they are living human beings (although there may be, of course, special circumstances in which that right may be overridden or waived).
If this (obviously partial) analysis of the major Supreme Court abortion opinions is correct, then it is clear that there is a huge problem within those opinions. The Court took for granted the supposition that being human and alive is what gives a human life full moral standing. Given this supposition, a major issue regarding abortion had to be when did that human life—with full moral status—begin? The Court claimed that they could find no reason for deciding that human life began before birth, a claim necessary for them to arrive at the doctrine of abortion choice. Nevertheless, this view has some consequences that seem to be absurd. The Court was induced to talk about an interest in potential life—an interest that seems to be all talk and no substance. Apparently they are committed to the view that fetuses are not actually, but only potentially, alive—a view that blatantly contradicts the biological facts. It is not difficult to understand how these aspects of the Court’s views have enraged abortion opponents. The Court’s views are seriously flawed. Once these flaws are corrected, abortion’s opponents can correctly argue that what remains of Roe and Casey provides no basis at all for a Constitutional right to an abortion.
The majority in Roe and Casey took what I have called the standard view for granted. There are obvious rhetorical advantages to using the standard view to argue against the conclusion of the majority. There are also obvious rhetorical advantages to arguing from the assumptions of pro-choice Constitutional law to an anti-choice conclusion, and advantages to arguing from the standard view to claim that abortion is wrong. Nevertheless, I want to argue that these advantages should be foregone. In the final analysis this apparently attractive argument strategy is unsound. I want to argue this not on the ground that there is a different, superior argument strategy that is either pro- or anti- choice (although I think that there is), but on the ground that the standard view common to Roe, Casey, and the pro-choice and anti-choice movements simply cannot withstand serious analysis.
Readers of this essay should beware. You will find it easy to assume as you read that I am criticizing the assumptions common to Roe, Casey, and the popular anti-choice movement in order to support the platform of abortion choice. Nothing could be further from the truth. My analysis of the standard view will constitute the bulk of this essay. After that I shall offer a brief account of a replacement for the standard view that underwrites the prohibition of abortion choice. I shall contend that this replacement view remedies the deficiencies of the standard view. I shall also suggest that this replacement is far more plausible than the standard view for other reasons.
I
Let me make explicit the cluster of views with which this essay is concerned. According to what I have called “the standard view,” what makes ending an individual’s life wrong is, with rare exceptions, that her life is a human life. Of course, there may be exceptions for killing in time of war or in self-defense, or for state sanctioned killing of those who commit horrendous crimes. But these exceptions are rare, and require careful justification. Since these exceptions are not within the province of the issues discussed in this essay, they shall be neglected here. If ending a human life is wrong because the life ended is human, then it is important to establish the boundaries of human life. An action that would be wrong after life has begun would not be wrong before actual life has started. (Think of the Court’s view on abortion.) An action that would be wrong before life has ended will not be wrong after life has ended. (Think of removing someone’s vital organs for transplant into another.) Apparently, given the standard view, if one wishes to discuss the wrongness of abortion, one must say something about the question of when life begins. One argument against the view that human life begins at birth has already been presented. Here is another version of that argument. The characteristics in virtue of which we would say that an infant is alive, such as cellular metabolism, growth, the capacity to develop into a mature human being, and biological integration are all characteristics of the fetuses these infants were before birth. Therefore, human life could not have begun at birth. Another argument, that human life begins at birth because a human being becomes independent when she is separated from her mother, is also unsound for two reasons. The first is that independence is not a necessary condition of being alive. Many living adult human beings are dependent for their life functions, sometimes on machines, sometimes on insulin, and sometimes, as in the case of conjoined twins, on other biological entities. The second is that independence is not one of those characteristics, like metabolism, that makes one alive. It is a different kind of characteristic.
This argument that life does not begin at birth can be pushed backward through pregnancy. For each week of gestation in which it is clear that a fetus exhibits signs of life, we can find an earlier week of gestation in which a fetus exhibits at least some of the same signs. Opponents of choice who take the standard view for granted will thus claim that human life can be traced back all the way to conception; they then argue that, since life begins at conception, abortion is immoral.
There is a problem with this argument. It does not follow from the fact that we can trace life back to conception that life begins at conception. It is quite compatible with the “trickle back” argument that there was life before conception. Indeed, there was. The sperm and unfertilized ovum (hereafter UFO) that were your precursors had to have been alive or your conception would not have taken place. Fertilization is a biological process. Life does not begin at conception because there is life before conception. Therefore, the standard claim of abortion opponents is demonstrably false.
This argument shows not only a serious problem with the anti-choice arguments based on the standard view, but also a problem with the standard view itself. The reasoning that leads from the standard view to a rejection of abortion choice also leads from the standard view to a rejection of contraception. This “contraception problem” suggests that there is something wrong with the standard view.
II
Is there a way of dealing successfully with this contraception problem? Consider two strategies. A “bite the bullet strategy” involves accepting the view that not only abortion, but also contraception is wrong. On the one hand, the inference is not crazy. The sperm and UFOs in which we are interested do not belong to some other species. They are human. They are alive; it is possible for both sperm and ova to no longer be alive. Therefore, they are human lives. So contraception is indeed wrong, or so the argument goes.
On the other hand, this way of dealing with the problem that there is human life before conception makes not only contraception wrong, but also abstaining from sex on almost any occasion wrong. This inference is often rejected because contraception is an artificial means of birth control, whereas abstaining from sex is a natural means of birth control. Hence, the wrongness of the former does not entail the wrongness of the latter. However, a necessary condition of making this rejection work involves showing that a deliberate decision to end a human life by artificial means is in a quite different moral category from a decision to end a human life by a deliberate omission. I have no idea how this could be shown.
A “brain death strategy” for rescuing the standard view is more promising. This strategy requires adopting a conception of human life richer than a bare metabolic notion. Of course, the success of this strategy requires that the richer conception utilized in this argument strategy must not be merely ad hoc—that is, it must not be a conception of human life adopted merely to avoid the contraception problem, but a conception of human life that has a defensible basis elsewhere. There appears to be a source for such a solid basis.
A number of authors have argued that our understanding of when life begins should be based on our understanding of when life ends. Here is one way of working out this plausible suggestion. According to the orthodox legal definition of death in this country, a human being is dead if and only if she has sustained either irreversible cessation of circulatory and respiratory functions, or irreversible cessation of all functions of the entire brain, including the brain stem. This definition is unnecessarily complicated for most purposes because all mammals who have sustained irreversible cessation of circulatory and respiratory functions will sustain irreversible cessation of all functions of the brain within a few minutes. Therefore, the orthodox legal definition of death can be simplified: an individual is dead if and only if that individual has sustained total and irreversible cessation of all brain function.
Now the argument can proceed as follows. Because the total loss of brain function is the mark of no longer being alive, a human is not yet alive until she manifests some brain function. Plainly a zygote does not manifest brain function. Therefore, human life does not begin until after conception.
Here is a first cousin of the above argument. We are essentially living human beings. Brain function is essential to life. Therefore, someone who has sustained irreversible loss of all brain function has gone out of existence. It also follows that we did not come into existence until we first manifested brain function. Notice that this brain death strategy appears to rescue the standard view from the contraception difficulty. Notice also that this way of understanding the standard view may open the door to some abortion choice.
How much choice can we obtain? According to Julian Savulescu: If we cease to exist when our brain dies, we only begin to exist when our brains start to function. Consciousness does not begin until after 20 weeks gestation. Thus we do not begin to exist as persons, as morally relevant entities, until at least 20 weeks
of fetal gestation. This argument is far from unambiguous. However, it would not be unreasonable to read it as maintaining that the brain death definition of death implies that life does not begin until consciousness is possible. The trouble with this inference, of course, is that irreversible loss of the capacity for consciousness and irreversible loss of all brain function are different. The former can occur without the latter having occurred, as in PVS. At the other end of life, a fetus can exhibit brain function prior to the acquisition of the capacity for consciousness. Accordingly, an argument based upon the brain death definition of death will support less abortion choice than Savuleseu suggests.
Baruch Brody once held a view that avoids this difficulty. According to Brody: … the foetus becomes a living human being when it acquires that characteristic which is such that its loss entails that a living human being no longer exists…. the foetus would be a living human being from about six weeks, the time at which we begin to note foetal brain activity.
Brody’s view is not subject to the difficulties of Savulescu’s view, but, of course, those who favor abortion choice will be much less happy with it.
Brody’s conclusion is correct only if his claim about the beginning of fetal brain activity is accurate. The brain develops gradually out of the cephalic end of the embryonic neural tube. If the end of life is understood in terms of the totality of the loss of brain function, it seems reasonable to locate the beginning of life at the time at which anything remotely describable as function in the cells of the developing brain is present. The cephalic end of the embryonic neural tube differentiates itself from the remainder of the neural tube even before the sixth week. It does not seem wrong to locate the beginning of life, using the brain death strategy, as early as the fourth week of gestation. Accordingly, the standard view, when combined with the orthodox brain death definition of death, permits few abortions.
III
The argument in the previous section suggested that if the orthodox legal account of the end of life is correct, then one can make an inference concerning when life begins. In addition, if the standard view is correct, then one can make an inference concerning the moral permissibility of abortion and indeed, make an inference to a view that supports the anti-choice view. In addition, one can avoid the contraception problem. But is the orthodox legal account of the end of life correct?
The orthodox legal account was developed to deal with cases of humans who had irreversibly lost all brain functions, but whose other vital functions continued with the assistance of a ventilator. Because respiratory function and circulatory function continued in such humans, they were not dead by traditional cardiac and respiratory standards. And since most of their organs functioned in a satisfactory manner, if they were regarded as dead, and if they or their relatives gave permission, they could be cadaver organ donors. This made the following argument enticing. The time of death of a biological organism is “that moment at which the body’s physiological system ceases to constitute an integrated whole.” When all brain function is lost irreversibly, that is when there is brain death, the body’s physiological system no longer constitutes an integrated whole. Even when some organ function is made possible with the assistance of a ventilator, that body is merely a group of organs. Therefore, if a human being is brain dead, a human being is dead. This is the principle, and in my view the only non-question begging argument, for defining the death of a human being in terms of the death of the entire brain.
Is this argument compelling? It has been criticized because many of the humans who are pronounced dead on the basis of death of the entire brain do in fact manifest signs of brain life. The criticism is based on the fact that the typical criteria for brain death are fixed dilated pupils, lack of awareness or purposive movement, and ventilator dependency. However, patients who meet such criteria sometimes do not exhibit excessive urination. Lack of excessive urination indicates that the hypothalamus (which is part of the brain) is still producing arginine vasopressin which inhibits the excessive urination. Some patients who meet such criteria exhibit increased heart rate and blood pressure when incisions are made to remove their organs for transplant. In some cases their EEGs are not flat. These criticisms are not compelling. They are not objections, strictly speaking, to the brain death definition of death. Rather, they are objections to how the brain death definition is applied in clinical situations. Even if it were the case that if the brain death definition were strictly applied in clinical situations, then cadaver donor organs would no longer be available for transplant, these difficulties at the clinical level would not show that the brain death definition of death is unjustified. Accordingly, the brain death definition of death could still be used in an argument (as noted in the preceding section) to locate the beginning of life and to avoid the contraception problem.
There is a better objection to the brain death definition of death. In the case of brain dead bodies maintained on a ventilator, virtually all of the capacity to integrate the body’s remaining organ systems is indeed lost. However, continuing circulatory and respiratory functions integrate the digestive system, urinary system, respiratory system, reproductive organs and circulatory system. This is, by the standards of a well-functioning human body, extremely low-level integration, of course. But it is integration, nonetheless. It follows that it is not the case that when all brain function is lost irreversibly—that is, when there is brain death—the body ceases to function as an integrated whole.
Accordingly, a crucial premise of the argument for the orthodox brain death definition of death is false.
A proponent of the brain death definition might reply to this criticism by pointing out that the remaining integration in a brain dead, but otherwise functioning, body is merely artificially maintained by a machine. Such a human is not integrating her own remaining vital functions. A machine is doing it. Therefore, because she is not the integrator of her vital functions, she is dead. The trouble with this reply is that it is not quite true. The systems supplying oxygen and food to the body, eliminating metabolic waste products, and preserving electrolyte balance continue in a brain dead body supported by a ventilator. Of course, it is true that in the absence of a ventilator this integration would no longer continue. However, it is also true that in the absence of artificially supplied insulin, physiological integration will no longer continue in an insulin-dependent diabetic. Accordingly, the “must do it without help” criterion of life must be rejected. The orthodox legal definition of death is indefensible. This being the case, the account of the beginning of life that is based upon it should be rejected. The brain death strategy for rescuing the standard view from the contraception problem fails. Thus the standard view remains subject to the contraception problem.
IV
The standard view is subject to even more serious problems. Recall that according to the standard view, the wrong-making feature of ending a life like ours is that the life in question is a human life. This wrong-making feature is used to generate our right to life. Our right to life is used to generate the obligations of others not to kill us, and the obligations of some medical personnel to preserve our lives. It is permissible for competent adults to waive this right under some, but not all, circumstances. Advance directives and oral refusals of medical care are based upon this right of waiver. However, it is not permissible now in this country for you to waive your right to life, even if you are a competent adult, to make it permissible for your physician (or anyone else) to kill you.
Suppose that when a patient in PVS had been a competent adult, she had not clearly waived her right to the medical care necessary to preserve her life. Courts have famously struggled with cases like this, as the familiarity of the names of Karen Anne Quinlan, Nancy Cruzan, and Terri Schiavo remind us. Keeping such patients alive seems pointless because we do not believe that withdrawing medical care from such patients would harm them. It would not deprive them of any future experience that they would value, whatever their values may be now or in the future. The trouble with the standard view, with its right of waiver exception, is that in the absence of an advance directive, evidence that a patient did indeed waive her right to life sustaining care may be less than compelling. Legal battles in these cases utilize a conceptual framework of surrogate decision-making and substituted judgment, a framework based on the right of waiver. This conceptual framework, based ultimately upon the standard view, makes these cases far more difficult than they should be. They should be simple, for withdrawing medical care from such patients cannot harm them.
A similar problem arises for individuals with circulatory function and respiratory function, but who have suffered whole brain death, or whose brains are so severely damaged that they will never recover awareness or the capacity to breathe on their own. I have already argued that there are good reasons for regarding such patients as alive. Because the removal of their vital organs for transplantation does not deprive them of any future experience valuable to them (whatever their values might be now or in the future), removing their vital organs cannot harm them. Nevertheless, the standard view, combined with the present ban on euthanasia, prevents this. Bioethicists have dealt with this problem by giving bad arguments for the view that such patients are dead in order to permit transplantation. Accordingly, analysis of an issue concerning transplantation ethics reveals another problem with the standard view. Issues involving organ donation from anencephalie newborns would be tedious to discuss, because they illustrate the same problems with the standard view. In all three of these cases, the standard view makes killing wrong even when killing could not harm the victim—it makes killing wrong when it really is not.
The standard view is so called because it is the generally accepted common sense view of the wrongness of killing. Because this is so, one would expect it to give the correct answers concerning the wrongness of killing in virtually all cases. It does. It yields the incorrect answer in only a few cases. But that is enough to suggest that the standard view is not quite right. In addition, the standard view is indefensible. For many the need for justification of the standard view will not be obvious, so a bit of explanation is in order.
Some propositions are true merely in virtue of the meanings of the concepts in them. “All squares have four sides” is an example. The proposition “Killing a human being is seriously presumptively wrong” is different. The concept of being human is a biological concept. The concept of being wrong is a moral concept. Accordingly the truth of the proposition “Killing a human being is seriously presumptively wrong” cannot be based merely on an examination of the concepts in it. Some reason that goes outside the proposition is required. Kant called this “a third thing,” meaning something in addition to the first and second thing—that is, outside of the subject concept and the predicate concept—is required to connect the concepts and thereby underwrite the truth of such a proposition.
Is the standard view true because it is the consensus view? There are two reasons that it is not. In the first place, moral views that at one time represented a consensus have later been realized to be unsound. (Think of attitudes toward racial or sexual equality.) In the second place, the standard view is not really as standard as many believe. One reason for this is because the standard view seems to imply that abortion is seriously wrong. Accordingly, defenders of abortion choice have tried to give accounts of the wrongness of killing that are different from the standard view, that account for the wrongness of killing in all situations in which there is consensus that killing is wrong, and that allow abortion choice. Some have suggested our having interests of a sort that many fetuses lack is what makes killing us wrong. Others have argued that it is wrong to kill us because we are owed respect, and fetuses are not. Still others have suggested our being persons with certain psychological properties makes it wrong to kill us. But fetuses don’t yet have these psychological properties. And still others have argued that the wrongness of killing adults and children is based upon our desire to live. But fetuses lack that desire.” It follows that the standard view cannot be based on an appeal to consensus. There is—in academic circles, at least—no consensus at all.
Sometimes an argument by elimination is used to attempt to justify the standard view. In such an argument one attempts to show that all the alternative accounts of the wrongness of killing are unsatisfactory because they do not show that it is wrong to kill in all of the cases in which the wrongness of killing is uncontroversial. Having eliminated all of the alternatives to the standard view, proponents of this argument conclude that the standard view must be correct. However, such an argument for the standard view has two weaknesses. In the first place, the standard view, as we have already seen, also handles some cases in an implausible manner. Accordingly, the criterion used for eliminating alternative accounts of the wrongness of killing also leads to the elimination of the standard view. In the second place, the argument from elimination works only if all of the possible alternatives to the standard view have been considered and rejected. One can never be certain that this condition obtains, for there may be some alternative to the standard view that has not yet been proposed. Hence, the argument by elimination for the standard view suffers from two fatal flaws.
A Biblical defense of the standard view is more directly relevant to the anti-choice view of abortion, especially because it is the defense the standard view proponents often offer. According to one argument, of all accounts of the wrongness of killing, only the standard view prohibits abortion. The Bible prohibits abortion. Therefore, the standard view must be correct.
But does the Bible actually prohibit abortion? The following passage from Jeremiah seems to be cited as much as any other:
Then the word of the Lord came unto me, saying. Before I formed thee in the belly, I knew thee: and before thou earnest forth out of the womb I sanctified thee, and I ordained thee a prophet unto the nations.
This passage certainly seems to show that God had Her eye on Jeremiah prior to his birth and that She had great things in mind for him. It is reasonable to infer that aborting Jeremiah would have been contrary to God’s will. Perhaps we can even permit the inference that aborting any of the prophets would have been contrary to God’s will. However, because virtually everyone is not a prophet, the inference to the proposition that abortion is in general wrong is unsound. Perhaps God had plans for all of us. Perhaps She had them when we were in the womb. But God would not have plans for any humans who were aborted. After all, She is omniscient, and She would not be unwise enough to make plans for anyone who would not exist after birth. The implications of this analysis for the standard view are worth notice. The truth of the above passage from Jeremiah is quite compatible with abortion choice. All we are permitted validly to infer in the case of Jeremiah is that the abortion of Jeremiah would have been wrong because God had plans for him, not because he was human and alive. There is no aid and comfort for the standard view here.
Opponents of abortion choice cite other Biblical passages in support of their views. Such persons seem to think that a prohibition of abortion is entailed by any passage in which the word “womb” and some word referring to children are found together. Surely this is an unduly broad reading of sacred texts.
Another problem with Biblically based anti-abortion arguments is that they require the assumption that the Bible provides an infallible guide to right conduct. Deuteronomy 21: 18-21 recommends stoning to death one’s repeatedly rebellious son. This strongly suggests that the assumption that the Bible is an infallible guide is not true. Therefore, neither does the Bible provide an infallible guide to conduct, nor, if it did, would it, in general, prohibit abortion or support the standard view.
Another problem besets the standard view. Suppose that a space ship lands on your front lawn and something that bears no resemblance to anything you have ever seen before emerges. This individual has learned your language, can converse with you and seems very person-like. Suppose further that you, being a sophisticated biologist, take a sample of this person’s body and can find nothing resembling human DNA. Would it be permissible to kill this individual because she is not biologically human?
Most of us would say “no.” Presumably the reason we would offer for the wrongness of killing this extra-terrestrial individual would be a reason that would apply also to human beings. This suggests that being human and alive is not quite the reason why it is wrong to kill us; there is some deeper consideration.
In sum, we can conclude that the standard view lacks an adequate defense, makes too many instances of ending a life wrong, leads its proponents into making false claims regarding the beginning of life, and probably is merely a surrogate for a deeper reason why killing is wrong when it is wrong. Although the standard view offers anti-choicers obvious rhetorical advantages, there are excellent reasons for rejecting it.
Recall that this essay is a critique of an anti-choice argument strategy, not a critique of the anti-choice conclusion. A much better anti-choice argument strategy is available. Consider human adults and already born children, about whom a consensus exists that killing them is wrong. How does killing victimize them? It harms them. Killing harms its victims by depriving them of all of the goods of life that they otherwise would have experienced. In other words, killing them deprives them of their futures of value. Their futures of value consist of whatever they will or would regard as making their lives worth living.
The implications of this account of the wrongness of killing for the ethics of abortion are straightforward. Fetuses have futures very much like ours; indeed, their futures contain whatever ours contain and more. Therefore, (given certain defensible assumptions and a few qualifications) abortion is immoral.
The future of value account of the wrongness of killing is superior to the standard account because it appeals to what we actually do believe makes life valuable and what makes premature death a misfortune. In addition, the future of value account handles end of life issues better than the standard account. For example, because individuals in PVS are both human and alive, the standard view entails that they have the right to life and medical personnel have an obligation to keep them alive unless these patients have waived their right to treatment. Problems arise if it is unclear that they have waived that right. Because the future of value view bases the wrong of ending someone’s life on the harm of death and because terminating medical treatment cannot harm PVS patients, withdrawing medical treatment from PVS patients is morally unproblematic in the absence of special circumstances.
Consider now a brain dead patient in whom, with ventilator support, respiratory and circulatory functions continue. Because she is still a (minimally) integrated biological organism, she is still alive. Because to remove her vital organs for transplantation is to kill her, bioethicists have endorsed bad arguments for the view that such individuals are dead, in order to justify transplantation. Notice how much better the future of value argument handles these cases. Since such a patient will never have, in the future, experiences she will value, removing her vital organs does not harm her. Assuming, therefore, that permission was obtained from the donor or her family, removing her vital organs neither harms nor wrongs her, even though removing her organs is indeed killing her.
Virtually the same considerations pertain to those anencephalic newborns who seem to be suitable organ donors. In the standard view, donation is not permissible. In the future of value view, because removing the vital organs of anencephalies does not deprive them of any future experiences they would value, removing their organs does not harm them. Therefore, removing their vital organs is morally permissible, on the condition that consent is obtained from the parents, even though the removal is a killing.
Does the future of value view permit euthanasia? It could. Consider a patient who suffers from severe pain that cannot be relieved and who wants to die. Such a patient lacks a future of value. Because killing him does not harm him, euthanasia is morally permissible. Of course, there may be no such cases in this country because of modern methods of pain control. However, one can imagine individuals with severe battlefield injuries or individuals in underdeveloped countries in which the future of value framework would open the door to euthanasia.
The future of value account also handles beginning of life issues better than the standard account. The standard view is subject to the contraception problem. The future of value account is not, because the issue of when life begins is irrelevant in the future of value account. What is important is that fetuses have futures of value. They have futures of value because they are earlier stages of the very same individuals who later will (or would) have valuable experiences. A simple argument shows that sperm and UFOs are not earlier stages of the very same individuals who later will (or would) have valuable experiences. Suppose they were. Consider your own case. If the sperm and the UFO that were your precursors were each an earlier stage of the same individual you are now, then, because identity is transitive, that sperm and UFO would be the same individual. That is false. Therefore, neither the sperm nor the UFO that was the precursor of any of us had a future of value. Although it is false that life begins at conception, it is true that the same individual that we are now began either at conception or implantation.
Finally consider our visitor from another planet whom it would be wrong to kill. The standard view cannot account for this. The future of value view can, for it would be wrong to kill that visitor for the same reason it is wrong to kill ordinary humans and fetuses: they have futures like ours.
VI
Let us conclude with an overview of the analysis of this essay. What I have called “the standard view” has been taken for granted by most people on both sides of the abortion controversy. According to this view there are certain basic rights that all humans have in virtue of being human and alive. We call these “human rights.” The right to life is, perhaps, the most basic human right. Thus, if fetuses are fully human and alive, then abortion violates a basic fetal right. And because abortion violates a basic fetal right, it is wrong. Those who are pro-choice often deal with this assumption by supposing that a fetus is not fully human, or that a fetus is merely a potential life, or that we will never know when life begins. Because they make these suppositions, those who are pro-choice argue that the abortion issue should be about women’s rights. Given these suppositions, of course, they are absolutely correct. And why shouldn’t those who are pro-choice feel justified in making these suppositions? They have also been made by the highest court in the land.
The trouble is that this way of thinking about the abortion issue opens the door to the arguments of the anti-choice movement. There are, as we have seen, good arguments that life does not begin at any time during pregnancy and that fetuses are actually—not merely potentially—alive. Furthermore, there are obvious arguments that human fetuses are, well, fully human; they are not partially members of another species during their intrauterine existence! Accordingly, those opposed to choice can use the standard view—which is, after all, accepted by most of those who are pro-choice—to argue against the permissibility of abortion.
I have argued in this essay that those who are anti-choice should forego this compelling rhetorical strategy. The claim that life begins at conception is false. The end of biological life does not have implications for abortion via the determination of the beginning of biological life. The standard view is implausible in other respects. Nevertheless, one should not conclude from this that the anti-choice view is indefensible.
There is a replacement for the standard view. The future of value view provides us with a better account of what makes it wrong to kill us. This replacement view is not subject to the deficiencies in the standard view, is more intuitively plausible than the standard view, and underwrites the wrongness of abortion. Therefore, opponents of abortion are better served by adopting the future of value view.
Some have argued that other adequate replacements for the standard view exist that underwrite abortion choice. I believe that no other replacement is adequate. However, the analysis that supports such a claim is beyond the scope of this essay. In addition, some have argued that even if fetuses have the right to life, a pregnant woman’s autonomy right trumps that fetal right. I also believe this argument is unsound. The analysis that supports that claim is also beyond the scope of this essay.