Wednesday, November 24, 2021

Evaluating "An Evaluation of 'Why the case against abortion is weak, ethically speaking'"

 In April 2021, Jonathan Dudley and I had an article "Why the case against abortion is weak, ethically speaking" published in Salon. While the main goal of the article was to advocate for ethics education concerning abortion, the article presented an argument for the view that at least most abortions are not immoral and so should not be illegal or criminalized. 

Elliott Crozat posted a brief response in May 2021 to our article, 'An Evaluation of "Why the case against abortion is weak, ethically speaking"' (reposted here, and perhaps other places) which I am finally going to respond to. To try to be more efficient for anyone reading this, I'm just going to comment "in text" on the original article, with my comments between *** and in purple. I do recommend anyone read his article in the original form before reading my commentary. 


Why the case against abortion is weak, ethically speaking is an engaging article on an issue often confined to academic journals.[1] I am grateful for the report, mainly because of Nobis’ and Dudley’s emphasis on personhood and because I agree with them on two significant points. First, our society needs careful and respectful examination of challenging topics rather than sloganeering and ad hominem. As Schopenhauer put it, “one wants reasons and not empty phrases or abuse.”[2] Second, at the popular level, folks on both sides of the debate have largely ignored the relevance of moral reasoning.

*** Yes, and I appreciate the notice that "both sides" ignore the relevance of moral reasoning, or the attempt at very carefully stating and evaluating arguments, and it's true that both sides often attempt to make their cases with mere slogans and ad hominem attacks (attacking the person who gives the argument instead of the argument itself), as well as other faulty appeals, such as question-begging arguments (where the "reason" given for the conclusion just is or assumes that conclusion). Many people could learn a lot to better engage these issues.***  

Four-Fold Evaluation

Notwithstanding my gratitude, the article has weaknesses. What follows is a brief evaluation of the authors’ argument, not an attempt to defend the pro-life position.

Firstly, the tone strikes me as too quick and sure. I will return to this point, but for now, I note that generally, philosophers are less sure about solutions to philosophical problems than the authors seem to be about their position on abortion. However, I grant that a tone of crisp certainty is more acceptable in popular contexts than in academia.

*** I don't know what we said that seemed too "quick and sure" to Crozat, but many anti-abortion philosophers seem quite sure about their responses to philosophical and ethical issues about abortion (and many other issues). 

But I do think the potential suggestion that there are many issues here that people shouldn't be certain of, since abortion is a complex issue, is a good one. I will observe though that our position that abortions later in pregnancy raise special issues and could be ethically problematic is a result of acknowledging empirical and moral uncertainties.

Secondly, the article begins in a questionable manner: “Abortion rights are under attack… The Supreme Court now has a majority of justices who identify as “pro-life,” and will surely be more receptive to these attacks on abortion rights than previous courts have been.” Note that the authors are not clear about whether they are referring to moral or legal rights. Either way, a problem arises. If the former, they are begging the question at the start since it is debatable whether persons have the moral right to perform an abortion. If the latter, then “attack” is a question-begging epithet. After all, if a legal right is morally unacceptable, it is arguably permissible to repeal that right. Labeling such efforts with the emotionally-laden “attack” presupposes that the legal right in question is ethically acceptable.

*** The rights here are, of course, legal: courts can't take away (or give) moral rights. 

I don't think an "attack" implies anything about the content or the status of any law: both just and unjust laws can be "attacked." ***

Thirdly, the authors provide two analogies to argue that abortion is morally permissible. In each, they presuppose the like-cases principle: like cases should be treated alike unless there is a morally relevant reason to treat them differently. Good start: this is a venerable moral principle going back at least to Aristotle. Nevertheless, each analogy fails because of at least one morally significant difference.

*** While people think of analogies in different ways, one way is this: they begin with a case, or set of cases, that are then used to develop and justify a principle from, and that principle is then applied to new cases. Are the new cases both similar and different from the initial cases? Yes, of course, otherwise they'd be the same thing! So then the question is whether the differences matter (and/or whether the principle can be refined to account for the differences. So this type of process is what we are doing here, not any simplistic "Fetuses are like organ donors and anencephalic infants, so what's true of them is also true of fetuses." ***

The first comparison is between abortion and organ donation. This comparison fails in two crucial respects: (i) in typical cases of organ donation, the donor consents to undergo the process, and (ii) the process occurs after the donor is brain-dead. It hardly needs to be stated that in typical cases of abortion, the fetus does not consent and is not brain-dead.

*** Yes, but fetuses cannot consent to anything, so any kind of demand for this is a demand for something that's impossible. Not doing the impossible is no fault against anyone. 

(It's also worthwhile that the ultimate significance of consent for organ donation is unclear: if a healthy young person consents to being killed and their organs taken, should we do or allow that? Probably not. Suppose some dies but didn't consent to donate their organs: would it be wrong to use their organs to save others' lives? Maybe not, and so some propose that only when people explicitly withhold consent to use their organs after their death (since, hey, they don't need those organs anymore, and so perhaps that withholding consent would be irrational?) should we not use someone's organs: explicit consent is not needed.)

And although fetuses are not brain-dead, they are also not "brain alive" or "brain birthed." And so, although not in these words, we offer a principle like this:
If a body is not brain alive or is not brain birthed, then it is prima facie permissible to kill that body.

Sleeping people are, of course, "brain alive. ***

The second analogy concerns abortion and the treatment of anencephalic infants. Here, the authors miss the difference between (a) actively killing and (b) passively allowing to die. This distinction is pivotal in the euthanasia debate and proves similarly important here. Abortion is the active killing of a fetus that would otherwise naturally continue to live and develop. However, in cases of anencephalic infants such as those noted by the authors, the infant is allowed to die, supported by palliative care.

*** Yes, although it would surely be fair to wonder if, since letting anencephalic infants die can be permissible, if it could also be permissible to activity kill them. 

And, of course, the killing / letting die distinction is a controversial one: one can do wrong by activity doing things (such as killing) and it seems that one can also do wrong by letting things happen (including letting someone or something die); but one can also act permissibly by doing both, in certain circumstances. ***  

Given these analogies, the authors construct something like the following argument:

  1. Abortion is relevantly similar to organ donation and anencephalic death.
  2. Cases of organ donation and anencephalic death are morally permissible.
  3. Like cases should be treated alike.
  4. Therefore, abortion is morally permissible.

The argument is an interesting application of the like-cases principle. However, since the analogies fail, the authors’ analogical reasoning is unconvincing.

*** It depends on what the "relevant similarity" is mentioned in 1, what the relevant "likeness" is: this was mentioned above. And it also depends on whether the differences among the cases are relevant. As we've seen, the consent/lack of consent/consent is impossible distinction(s) and doing/allowing don't appear to make an important difference. *** 

Fourthly, the authors claim that fetuses during the first 12 weeks are not conscious. Perhaps they are correct, but they cannot be objectively certain. As many philosophers of mind have indicated, consciousness is a hard problem. A good way to discover if a being is conscious is to determine if it has qualia (i.e., subjective states of experience). One cannot accomplish this task with a brain scan. Hence, a reasonable concern arises that we cannot achieve certainty concerning whether a fetus has qualia. 

*** It seems people can be "objectively certain" that, say, embryos don't have qualia, in part because they don't have brains. And at least beginning or early fetuses do not have qualia: there is little to no evidence that they do, and ample evidence that they don't. Perhaps later, far more developed fetuses do, and we acknowledge that in our discussion. *** 

And since we lack such certainty, we should act with the utmost caution, given the moral seriousness of taking human life. 

*** Again, we acknowledge, like most pro-choice ethicists, that abortions far later in pregnancy may give rise to important ethical issues. This acknowledgment is based on thinking that we should be cautious in these cases. 

It's important to note though that here there's been a switch in Crozat's discussion from concern about beings with qualia (i.e., subjective states of experience) to "human life." Not everything biologically human has qualia, and not everything (or everyone) with qualia is biologically human. So, the "we should act with the utmost caution" is good guidance, but, if the concern really is beings with qualia, it should, for example, lead people who accept this advice to, at least, condemn all sorts of harmful actions done to animals who have qualia: e.g., they should think that raising animals to be eaten, especially in factory farming conditions, is wrong. Right? 

We should act with the utmost caution, given the moral seriousness of taking human life. And it seems like organ donation procedures and how anencephalic infants are treated is compatible with that moral seriousness. The question is why, what it is about these human beings or human organisms that makes it permissible to end their lives, and we propose that the best answers to these questions suggest that at least early abortions are permissible. 

We agree that everyone should be cautious, but an unmentioned "caution" here is, of course, the risks to women if abortion is not allowed: not allowing women (and girls) to not have children (that they don't want to have) could be, and likely would be, very harmful for them (as well as sometimes for those children themselves), and those risks need to be acknowledged and factored into the discussion if it's to be fair and balanced. ***

The authors do not address this point.[3] Instead, they present what might strike the reader as an unjustified sense of certainty about the moral permissibility of killing fetuses during the first 12 weeks.

Moreover, the authors write that fetuses “lack consciousness-enabling brains.” But they are not lucid about what “consciousness-enabling brain” means, leaving the reader to ponder the matter. Now, there is evidence that the senses of taste and touch begin to develop around Week 8. According to Ventura and Worobey, the olfactory and gustatory systems also start to form during this period. These systems and their connections to the brain enable the fetus to develop tastes and preferences for specific flavors.[4] Touch, taste, and smell are sensations, which are states of consciousness. Preferences and other desires are also conscious states. Thus, the physical resources which support consciousness begin to develop before Week 12. Do these mechanisms enable any degree of consciousness during this period? I suggest that we do not know the answer to this question and that our ignorance indicates that we should tread carefully.

*** I am unsure if the suggestion here is that beginning fetuses are actually able to touch, taste, and smell, or if the physical structures that enable that are in development. The latter is true, but any claims that beginning fetuses are actually conscious, in these ways and any other, just don't to be supported by any science on fetal development. ***  

Furthermore, one is within one’s epistemic rights to doubt the authors’ claim that the present bearing of consciousness is necessary to possess the moral right to life. For example, the adult who temporarily loses consciousness because of, say, dehydration does not thereby lose this right. 

*** Yes, but it's worth making a list of differences and similarities between this adult who temporarily loses consciousness and an embryo or fetus that's never been conscious. The adult's past experience, consciousness-enabling-brain and connections to future possible experiences are relevant factors that won't be present with fetuses. ***  

Instead, one might agree with Marquis that the primary concern at hand is that the fetus has a future like ours.[5] In other words, the human fetus, child, and adult share a comparable future, namely, one in which a conscious agent naturally possesses intrinsically valuable experiences. It is morally wrong to deprive a child or an adult of future experiences. Given the like-cases principle, abortion is morally wrong because it deprives the fetus of such experiences.

*** Interestingly, while Marquis's arguments are typically thought by philosophers to be the best arguments against abortion, few enthusiastic advocates of abortion agree with that. Perhaps this is because Marquis's arguments can justify abortion in some circumstances (e.g., if the future baby would have a very grim future) and euthanasia and have other implications that many abortion foes reject. 

But there are many objections to his arguments also, including the denial that abortion literally denies a fetus of a valuable future. (See section 5.1.5.). These objections do tend to be rather abstract though.***


There are other concerns with the article, such as an apparent mishandling of important points about interests. But I want to end amicably. Nobis and Dudley close by stating that one should not wait to engage in moral philosophy until forced to because of a rescinded legal privilege. I wholly agree.

*** Thank you for your observations and critiques! NN ***

Elliott R. Crozat (Ph.D., M.A.) is Professor of Philosophy and the Humanities at Purdue University Global. He also worked for several years as an analyst with the U. S. Department of State on issues in applied epistemology. His areas of emphasis include ethics, epistemology, and philosophy of religion.

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