Philosophy and Public Affairs Readers

A Philosophy and Public Affairs Reader

Marshall Cohen, Marshall Cohen, Marshall Cohen

• Publisher: Princeton University Press
• Year: 2021
• ISBN:
  9780691233161
• Topic: Social Sciences
• Subtopic: Gender Studies
• Index: Social Sciences

During its first two years of publication, Philosophy & Public Affairs contributed to the public debate on abortion a set of remarkable and brilliant articles which examine the basic philosophical issues posed by this controversial subject: whether the fetus is a person, whether it has a right to life, whether a woman has a right to decide what happens in and to her body, whether there is an ethical connection between abortion and infanticide, whether there is any point after conception where it is possible to draw the line beyond which killing is impermissible. These five essays, together here for the first time in a single volume, offer radically differing points of view; they provide the best sustained discussion of these philosophical issues available anywhere.Contents: Judith Jarvis Thomson, "A Defense of Abortion"; Roger Wertheimer, "Understanding the Abortion Argument"; Michael Tooley, "Abortion and Infanticide"; John Finnis, "The Rights and Wrongs of Abortion"; and Judith Jarvis Thomson, "Rights and Deaths."

JOHN FINNIS

The Rights and Wrongs of Abortion

Fortunately, none of the arguments for and against abortion need be expressed in terms of "rights.” As we shall see, Judith Thomson virtually admits as much in her “A Defense of Abortion.”¹ But since she has chosen to conduct her case by playing off a “right to life” against a “right to decide what happens in and to one’s body,” I shall begin by showing how this way of arguing about the rights and wrongs of abortion needlessly complicates and confuses the issue. It is convenient and appropriate to speak of “rights” for purposes and in contexts which I shall try to identify; it is most inconvenient and inappropriate when one is debating the moral permissibility of types of action —types such as “abortions performed without the desire to kill,” which is the type of action Thomson wishes to defend as morally permissible under most circumstances. So in section I of this essay I shall show how her specification and moral characterization of this type of action are logically independent of her discussion of “rights.” Then in section II I shall outline some principles of moral characterization and of moral permissibility, principles capable of explaining some of the moral condemnations which Thomson expresses but which remain all too vulnerable and obscure in her paper. In section III I shall show how the elaboration of those principles warrants those condemnations of abortion which Thomson thinks mistaken as well as many of those attributions of human rights which she so much takes for granted. In section IV I briefly state the reason (misstated by Thomson and also by Wertheimer)² why the foetus from conception has human rights, i.e. should be given the same consideration as other human beings.

I

Thomson’s reflections on rights develop in three stages. (A) She indicates a knot of problems about what rights are rights to; she dwells particularly on the problem “what it comes to, to have a right to life” (p. ii). (B) She indicates, rather less clearly, a knot of problems about the source of rights; in particular she suggests that, over a wide range (left unspecified by her) of types of right, a person has a right only to what he has “title” to by reason of some gift, concession, grant or undertaking to him by another person. (C) She cuts both these knots by admitting (but all too quietly) that her whole argument about abortion concerns simply what is “morally required” or “morally permissible”; that what is in question is really the scope and source of the mother’s responsibility (and only derivatively, by entailment, the scope and source of the unborn child’s rights). I shall now examine these three stages a little more closely, and then (D) indicate why I think it useful to have done so.

(A) How do we specify the content of a right? What is a right a right to? Thomson mentions at least nine different rights which a person might rightly or wrongly be said to have.³ Of these nine, seven have the same logical structure;⁴ viz., in each instance, the alleged right is a right with respect to P’s action (performance, omission) as an action which may affect Q. In some of these seven instances,⁵ the right with respect to P’s action is P’s right (which Hohfeld⁶ called a privilege and Hohfeldians call a liberty). In the other instances,⁷ the right with respect to P’s action is Q’s right (which Hohfeldians call a “claim-right”). But in all these seven instances there is what I shall call a “Hohfeldian right”: to assert a Hohfeldian right is to assert a three-term relation between two persons and the action of one of those persons insofar as that action concerns the other person.

The other two rights mentioned by Thomson have a different logical structure.⁸ In both these instances, the alleged right is a right with respect to a thing (one’s “own body,” or the state of affairs referred to as one’s “life”). Here the relation is two-term: between one person and some thing or state of affairs. Rights in this sense cannot be completely analyzed in terms of some unique combination of Hohfeldian rights.⁹ P’s right to a thing (land, body, life) can and normally should be secured by granting or attributing Hohfeldian rights to him or to others; but just which combination of such Hohfeldian rights will properly or best secure his single right to the thing in question will vary according to time, place, person and circumstance. And since moral judgments centrally concern actions, it is this specification of Hohfeldian rights that we need for moral purposes, rather than invocations of rights to things.

Since Thomson concentrates on the problematic character of the “right to life,” I shall illustrate what I have just said by reference to the “right to one’s own body,” which she should (but seems, in practice, not to) regard as equally problematic. Now her two explicit versions of this right are: one’s “just, prior claim to his own body,” and one’s “right to decide what happens in and to one’s body.” But both versions need much specification¹⁰ before they can warrant moral judgments about particular sorts of action. For example, the “right to decide” may be either (i) a right (Hohfeldian liberty) to do things to or with one’s own body ( e.g. to remove those kidney plugs, or that baby, from it—but what else? anything? do I have the moral liberty to decide not to raise my hand to the telephone to save Kitty Genovese from her murderers? cf. pp. 18-19); or (ii) a right (Hohfeldian claim-right) that other people shall not (at least without one’s permission) do things to or with one’s own body (e.g. draw sustenance from, or inhabit, it—but what else? anything?); or (iii) some combination of these forms of right with each other or with other forms of right such as (a) the right (Hohfeldian power) to change another person’s right (liberty) to use one’s body by making a grant of or permitting such use (any such use?), or (b) the right (Hohfeldian immunity) not to have one’s right (claim-right) to be free from others’ use of one’s body diminished or affected by purported grants or permissions by third parties. And as soon as we thus identify these possible sorts of right, available to give concrete moral content to the “right to one’s body,” it becomes obvious that the actions which the right entitles, disentitles or requires one to perform (or entitles, disentitles or requires others to perform) vary according to the identity and circumstances of the two parties to each available and relevant Hohfeldian right. And this, though she didn’t recognize it, is the reason why Thomson found the “right to life” problematic, too.

(B) I suspect it was her concentration on non-Hohfeldian rights (“title” to things like chocolates or bodies) that led Thomson to make the curious suggestion which appears and reappears, though with a very uncertain role, in her paper. I mean, her suggestion that we should speak of “rights” only in respect of what a man has “title” to (usually, if not necessarily, by reason of gift, concession or grant to him).

This suggestion,¹¹ quite apart from the dubious centrality it accords to ownership and property in the spectrum of rights, causes needless confusion in the presentation of Thomson’s defense of abortion. For if the term “right” were to be kept on the “tight rein” which she suggests (p. 16), then (a) the Popes and others whose appeal to “the right to life” she is questioning would deprive her paper of its starting point and indeed its pivot by simply rephrasing their appeal so as to eliminate all reference to rights (for, as I show in the next section, they are not alleging that the impropriety of abortion follows from any grant, gift or concession of “rights” to the unborn child); and (b) Thomson would likewise have to rephrase claims she herself makes, such as that innocent persons certainly have a right to life, that mothers have the right to abort themselves to save their lives, that P has a right not to be tortured to death by Q even if R is threatening to kill Q unless Q does so, and so on. But if such rephrasing is possible (as indeed it is), then it is obvious that suggestions about the proper or best way to use the term “a right” are irrelevant to the substantive moral defense or critique of abortion.

But this terminological suggestion is linked closely with Thomson’s substantive thesis that we do not have any “special [scil. Good Samaritan or Splendid Samaritan] responsibility” for the life or well-being of others “unless we have assumed it, explicitly or implicitly” (p. 21). It is this (or some such) thesis about responsibility on which Thomson’s whole argument, in the end, rests.

(C) Thomson’s explicit recognition that her defense of abortion need not have turned on the assertion or denial of rights comes rather late in her paper, when she says that there is “no need to insist on” her suggested reined-in use of the term “right”:

If anyone does wish to deduce “he has a right” from “you ought,” then all the same he must surely grant that there are cases in which it is not morally required of you that you allow that violinist to use your kidneys. . . .¹² And so also for mother and unborn child. Except in such cases as the unborn person has a right to demand it . . . nobody is morally required to make large sacrifices ... in order to keep another person alive (pp. 17-18).

In short, the dispute is about what is “morally required” (i.e. about what one “must” and, for that matter, “may” or “can” [not] do: see p. 52); that is to say, about the rights and wrongs of abortion. True, on page 61 there is still that “right to demand large sacrifices” cluttering up the margins of the picture. But when we come to the last pages of her paper (pp. 20-21) even that has been set aside, and the real question is identified as not whether the child has a “right to demand large sacrifices” of its mother, but whether the mother has a “special responsibility” to or for the child (since, if she has, then she may be morally required to make large sacrifices for it and therefore we will be able to assert, by a convenient locution, the child’s “right to [demand] those sacrifices”).

(D) So in the end most of the argument about rights was a red herring. I have bothered to track down this false trail, not merely to identify some very common sorts and sources of equivocation (more will come to light in the next two sections), but also to show how Thomson’s decision to conduct her defense in terms of “rights” makes it peculiarly easy to miss a most important weak point in her defense. This weak point is the connection or relation between one’s “special responsibilities” and one’s ordinary (not special) responsibilities; and one is enabled to miss it easily if one thinks (a) that the whole problem is essentially one of rights, (b) that rights typically or even essentially depend on grant, concession, assumption, etc., (c) that special responsibilities likewise depend on grants, concessions, assumptions, etc., and (d) that therefore the whole moral problem here concerns one’s special responsibilities. Such a train of thought is indeed an enthymeme, if not a downright fallacy; but that is not surprising, since I am commenting here not on an argument offered by Thomson but on a likely effect of her “rhetoric.”

What Thomson, then, fails to attend to adequately is the claim (one of the claims implicit, I think, in the papal and conservative rhetoric of rights) that the mother’s duty not to abort herself is not an incident of any special responsibility which she assumed or undertook for the child, but is a straightforward incident of an ordinary duty everyone owes to his neighbor. Thomson indeed acknowledges that such ordinary nonassumed duties exist and are as morally weighty as duties of justice in her reined-in sense of “justice”; but I cannot discern the principles on which she bases, and (confidently) delimits the range of, these duties.¹³

She speaks, for instance, about “the drastic limits to the right of selfdefense”: “If someone threatens you with death unless you torture someone else to death, I think you have not the right, even to save your life, to do so” (p. 9). Yet she also says: “If anything in the world is true, it is that you do not ... do what is impermissible, if you reach around to your back and unplug yourself from that violinist to save your life” (p. 8). So why, in the first case, has one the strict responsibility not to bring about the death demanded? Surely she is not suggesting that the pain (“torture”) makes the difference, or that it is morally permissible to kill painlessly another person on the orders of a third party who threatens you with death for noncompliance? And, since she thinks that “nobody is morally required to make large sacrifices, of health, of all other interests and concerns, of all other duties and commitments, for nine years, or even for nine months, in order to keep another person alive” (p. 18), will she go on to say that it is permissible, when a third party threatens you with such “large sacrifices” (though well short of your life), to kill (painlessly) another person, or two or ten other persons?

If Thomson balks at such suggestions, I think it must be because she does in the end rely on some version of the distinction, forced underground in her paper, between “direct killing” and “not keeping another person alive.”

The ...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Preface
• Judith Jarvis Thomson: A Defense of Abortion
• Roger Wertheimer: Understanding the Abortion Argument
• Michael Tooley: Abortion and Infanticide
• John Finnis: The Rights and Wrongs of Abortion
• Judith Jarvis Thomson: Rights and Deaths
• The Contributors