A Law School Syllabus on Abortion

Abortion: A Syllabus A low-key reading group on a controversial topic.

STEPHEN SACHS | 4.30.2020 4:53 PM; Reposted from Reason.com 

This past year, my wife Amanda Schwoerke and I co-taught a reading group on "Abortion: Law, Policy, Ethics." We taught the course primarily to learn the subject ourselves. Abortion may be central to Supreme Court politics, but it's outside our academic specialties, and usually too sensitive a topic for the faculty lounge. So, except with family or close friends, we hadn't had many serious conversations about the ethics of abortion since college.

Law schools generally cover abortion in one of two ways. First, everyone has a few awkward and uncomfortable days on the topic in an introductory Con Law class, where the only people willing to talk about it are those who already have strong views. Neither of us were inclined to discuss the issue much in our own 1L class (where we happened to sit next to each other, something I remind my students whenever they fill out the seating charts). Second, there may be upper-level classes on Reproductive Rights, which often tend—at least from the syllabi we reviewed—to focus on policy and implementation rather than first principles.

This is a problem. Abortion poses important and difficult ethical questions, which lawyers (and others!) should be ready to think through seriously. And with the Court's membership changing, it's not enough to just assume the existing doctrinal framework. So we decided to put together our own course—and, below, to share our syllabus and some advice.

The class was intended as a lesson in "how the other half thinks." We have our own views, of course; but we wanted the students to wrestle with each other's views. So we taught the course pass/fail, so there wouldn't be any incentive to agree with us.

To keep the temperature low, class was mostly held in our living room, with coffee and dessert. We tried to balance the readings between pro-choice and pro-life perspectives. The students were roughly even (say, 60-40 pro-choice), helped by informal recruitment efforts on their part. This helped avoid some of the dogpiling one might see in an 80-20 or 90-10 class.

As to how well we did, we'll have to wait for the student evaluations! Two quick reactions:

• At the end of the class, a substantial number of students, though not all, found "the personhood question" inescapable. There's an affectation in modern abortion discourse that we can somehow transcend the hard ethical questions by focusing on policy questions instead. This turned out not to be true, at least for a large group of our students.
• Covering the constitutional law of abortion is very difficult. As you can see on the syllabus, there's not enough space to cover everything relevant. Whatever one thinks of Griswold or Roe or Casey on their own terms, there are also deep questions to be asked about Fourteenth Amendment fundamental-rights jurisprudence—about the Slaughterhouse Cases, privileges and immunities, incorporation of the bill of rights, etc. It's hard for any subject-specific seminar to address all of these at once.

In any case, here's the syllabus (also available as a pdf). Comments and questions welcome!

The questions raised by abortion are both highly abstract and deeply personal. While they are the subject of intense and heartfelt commitment on both sides, this course is offered in the belief that they are also a proper subject for intellectual inquiry. We will insist that discussions be conducted in a civil and respectful manner, and that you address and listen to your fellow students, whatever their views, with an open mind. Within each unit, the assigned readings are roughly balanced as to viewpoint; they take deeply conflicting positions, and you will certainly disagree with some of them. The course is offered on a credit/no-credit basis partly to ensure that you are neither penalized nor rewarded for sharing the views of either of the instructors.

Two-page response papers are due 24 hours before each meeting. They may be uploaded to the 'Forum' section of the course website, so that you can read your classmates' papers in advance. Response papers should address some issue raised in your mind by that session's readings; they needn't discuss every reading, and they should respond to the readings rather than summarize them. Each student is expected to participate fully in the discussions.

There is one required text, What Roe v. Wade Should Have Said (Jack M. Balkin ed., 2005). Other required readings are available online or in the coursepack. (Because the course focuses on basic principles rather than the details of current doctrine, it leaves out such decisions as Gonzales v. Carhart, Whole Woman's Health v. Hellerstedt, or Azar v. Garza, as well as a number of important cases in state or circuit courts.)

1. Persons
   1. Guttmacher Institute, Fact Sheet: Induced Abortion in the United States (Jan. 2018)
   2. John T. Noonan, Jr., An Almost An Almost Absolute Value in History, in The Morality of Abortion: Legal and Historical Perspectives 51, 51–59 (John T. Noonan ed. 1970)
   3. Mary Anne Warren, On the Moral and Legal Status of Abortion, 57 Monist 43 (1973)
   4. Peter Singer, Germ of a New Debate on the Ethics of Life, The Australian (Canberra), Dec. 23, 2005, at 10
   5. Patrick Lee & Robert P. George, Human-Embryo Liberation, Nat'l Rev. (Jan. 25, 2006 1:29 p.m.)
   6. Sherry F. Colb & Michael C. Dorf, Beating Hearts: Abortion and Animal Rights 13–44 (2016)
2. Futures
   1. Don Marquis, Why Abortion Is Immoral, 86 J. Phil. 183 (1989)
   2. Colb & Dorf, Beating Hearts 96–115
   3. J Savulescu, Abortion, Embryo Destruction and the Future of Value Argument, 28 J. Med. Ethics 133 (2002)
   4. D Marquis, Savulescu's Objections to the Future of Value Argument, 31 J. Med. Ethics 119 (2005)
3. Autonomy
   1. Judith Jarvis Thomson, A Defense of Abortion, 1 Phil. & Pub. Aff. 47 (1971)
   2. John Finnis, The Rights and Wrongs of Abortion: A Reply to Judith Thomson, 2 Phil. & Pub. Aff. 117 (1973)
   3. Don Marquis, Manninen's Defense of Abortion Rights Is Unsuccessful, 10 Am. J. Bioethics 56 (2010)
   4. Judith Jarvis Thomson, Rights and Deaths, 2 Phil. & Pub. Aff. 146 (1973)
   5. I. Glenn Cohen, Artificial Wombs and Abortion Rights, Hastings Ctr. Rep., July 1, 2017
4. Equality
   1. Lawrence B. Finer et al., Reasons U.S. Women Have Abortions, 37 Persp. on Sexual & Reprod. Health 110 (2005)
   2. Rachel K. Jones & Jenna Jerman, Population Group Abortion Rates and Lifetime Incidence of Abortion: United States, 2008–2014, 107 Am. J. Pub. Health 1904 (2017)
   3. Sally Markowitz, Abortion and Feminism, in The Problem of Abortion 194 (Susan Dwyer & Joel Feinberg eds., 3d ed. 1997)
   4. Reva B. Siegel, Abortion as a Sex Equality Right, in Mothers in Law (Martha Albertson Fineman & Isabel Karpin eds., 1995)
   5. Robin West, Liberalism and Abortion, 87 Geo. L.J. 2117 (1999)
   6. George A. Akerlof, Janet L. Yellen & Michael L. Katz, An Analysis of Out-of-Wedlock Childbearing in the United States, 109 Q.J. Econ. 277 (1996)
5. Society
   1. Gallup, Abortion: Gallup Historical Trends (viewed July 25, 2019) (skim)
   2. Judith Jarvis Thomson & Peter de Marneffe, Abortion: Whose Right?, Boston Review, Summer–Fall 1995 (1, 2)
   3. The Pollitt-Douthat Debate (1, 2, 3, 4, 5)
   4. Michelle Alexander, My Rapist Apologized, N.Y. Times, May 26, 2019, at SR1
   5. Ariana Eunjung Cha, Babies with Down Syndrome Are Put on Center Stage in the U.S. Abortion Fight, Wash. Post, March 4, 2018
6. Roe
   1. Pierce v. Society of Sisters, 268 U.S. 510 (1925)
   2. Buck v. Bell, 274 U.S. 200 (1927)
   3. Griswold v. Connecticut, 381 U.S. 479 (1965)
   4. Eisenstadt v. Baird, 405 U.S. 438 (1972)
   5. Roe v. Wade, 410 U.S. 113 (1973)
7. Responses
   1. John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920 (1973)
   2. What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision (Jack M. Balkin ed., 2005) (read as much as seems relevant)
8. Casey
1. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992)
2. Michael Stokes Paulsen, The Worst Constitutional Decision of All Time, 78 Notre Dame L. Rev. 995 (2003)
3. Neal Devins, How Planned Parenthood v. Casey (Pretty Much) Settled the Abortion Wars, 118 Yale L.J. 1318 (2009)

All other blog posts are available here. 

Text to Speech Version of the Welcome page

This book introduces readers to the many arguments and controversies concerning abortion. While it argues for ethical and legal positions on the issues, it focuses on how to think about the issues, not just what to think about them. It is an ideal resource to improve your understanding of what people think, why they think that and whether their (and your) arguments are good or bad, and why. It's ideal for classroom use, discussion groups, organizational learning, and personal reading.  

This open educational resource is freely available in PDF, full text, Google Doc, ePub, Mobi, and other formats. It's also now posted as a speech-to-text "audiobook" on these pages. 

A $5.38 paperback can be ordered and shipped to anyone who would benefit from it: governmental representatives and other elected officials, organizational leaders and community activists, thought leaders and influencers, leaders of religious organizations, friends and family and anyone else who would benefit from a thorough assessment of arguments on all sides of the abortion debates. (Why $5.38? This is currently the lowest price Amazon would allow). It's also a Kindle book for $.99 (or free), which can be shared and sent also.

The book is by two philosophy professors with extensive teaching and research experience on abortion and related issues: Nathan Nobis, PhD at Morehouse College, Atlanta, GA and Kristina Grob, PhD at the University of South Carolina Sumter. 

From the Preface

To many people, abortion is an issue for which discussions and debates are frustrating and fruitless: it seems like no progress will ever be made towards any understanding, much less resolution or even compromise.

Judgments like these, however, are premature because some basic techniques from critical thinking, such as carefully defining words and testing definitions, stating the full structure of arguments so each step of the reasoning can be examined, and comparing the strengths and weaknesses of different explanations can help us make progress towards these goals.

When emotions run high, we sometimes need to step back and use a passion for calm, cool, critical thinking. This helps us better understand the positions and arguments of people who see things differently from us, as well as our own positions and arguments. And we can use critical thinking skills help to try to figure out which positions are best, in terms of being supported by good arguments: after all, we might have much to learn from other people, sometimes that our own views should change, for the better.

Here we use basic critical thinking skills to argue that abortion is typically not morally wrong. We begin with less morally-controversial claims: adults, children and babies are wrong to kill and wrong to kill, fundamentally, because they, we, are conscious, aware and have feelings. We argue that since early fetuses entirely lack these characteristics, they are not inherently wrong to kill and so most abortions are not morally wrong, since most abortions are done early in pregnancy, before consciousness and feeling develop in the fetus.

Furthermore, since the right to life is not the right to someone else’s body, fetuses might not have the right to the pregnant woman’s body—which she has the right to—and so she has the right to not allow the fetus use of her body. This further justifies abortion, at least until technology allows for the removal of fetuses to other wombs. Since morally permissible actions should be legal, abortions should be legal: it is an injustice to criminalize actions that are not wrong.

In the course of arguing for these claims, we:

1. discuss how to best define abortion;
2. dismiss many common “question-begging” arguments that merely assume their conclusions, instead of giving genuine reasons for them;
3. refute some often-heard “everyday arguments” about abortion, on all sides;
4. explain why the most influential philosophical arguments against abortion are unsuccessful;
5. provide some positive arguments that at least early abortions are not wrong;
6. briefly discuss the ethics and legality of later abortions, and more.

This essay is not a “how to win an argument” piece or a tract or any kind of apologetics. It is not designed to help anyone “win” debates: everybody “wins” on this issue when we calmly and respectfully engage arguments with care, charity, honesty and humility. This book is merely a reasoned, systematic introduction to the issues that we hope models these skills and virtues. Its discussion should not be taken as absolute “proof” of anything: much more needs to be understood and carefully discussed—always.

Table of Contents

1 Introduction

2 Defining “Abortion”

2.1 “Murdering Babies” 

2.2 “Termination” 

2.3 “Killing”

3 Fetal Consciousness & Facts about Abortions

3.1 Fetal Consciousness 

3.2 When Most Abortions Occur 

3.3 Why Most Abortions Occur

4 Bad Arguments: “Question-Begging” Arguments & “Everyday” Arguments

4.1 “Question-Begging” Arguments

4.1.1 “Against” Abortion: 

4.1.2 “For” Abortion:

4.2 “Everyday” Arguments

4.2.1 “Against” Abortion

4.2.1.1 “Abortion ends a life.” 

4.2.1.2 “Abortion kills babies and children.” 

4.2.1.3 “Abortion is murder.” 

4.2.1.4 “Abortion kills innocent beings.” 

4.2.1.5 “Abortion hurts women.” 

4.2.1.6 “The Bible says abortion is wrong.” 

4.2.1.7 “Abortion stops a beating heart.” 

4.2.1.8 “How would you like it if . .?”

4.2.2 “For” Abortion

4.2.2.1 “Women have a right to do whatever they want with their bodies.” 

4.2.2.2 “People who oppose abortion are just trying to control women.” 

4.2.2.3 “Men shouldn’t make decisions about matters affecting women.” 

4.2.2.4 “Women and girls will die if abortion isn’t allowed.”

5 Better Arguments: Philosophers’ Arguments

5.1 Arguments Against Abortion

5.1.1 Fetuses are human 

5.1.2 Fetuses are human beings 

5.1.3 Fetuses are persons 

5.1.4 Fetuses are potential persons 

5.1.5 Abortion prevents fetuses from experiencing their valuable futures

5.2 Arguments that abortion is often not wrong

5.2.1 No good arguments that it is wrong 

5.2.2 Early fetuses aren’t conscious & feeling: personhood and harm 

5.2.3 The right to life & the right to someone else’s body 

5.2.4 “What ifs”: rape and later-term abortions

6 Conclusion

7 For Further Reading

8 Discussion Questions

Advanced Praise

"A lucid and engaging introduction to the ethics of abortion. Nobis and Grob are refreshingly fair and balanced in their treatment of a hotly contested issue. They seek to find the best arguments, not arguments that fit any particular agenda. For such a short book, the text is remarkably comprehensive: they define key terms such as ‘murder and ‘baby,’ assess everyday arguments about abortion, discuss the science of fetal development, and rigorously engage the most important philosophical arguments. I have taught many class sessions on abortion; no text I’ve used is nearly as useful as this one. Highly recommended!"

—Rebecca Tuvel, PhD, Rhodes College, Tennessee

"It's hard to think clearly about abortion. This book helps. It provides a great set of tools for talking about this thorny issue, and most importantly, it explains exactly what goes wrong in many common arguments. All this is essential: we need it if we're going to do better. So even if you disagree with the conclusions that the authors reach, you'll learn a great deal by reading this accessible and thoughtful volume."

—Bob Fischer, PhD, Texas State University

"This book takes on and takes seriously many of the common arguments and appeals that one so frequently hears on the issue of abortion. It provides fair and balanced analyses that are concise and varied. It is an easy to read yet rigorous exploration of key concepts and assumptions present in both popular and philosophical discourse. It's an excellent introduction for anyone who wishes to better reflect critically on the practice of abortion." 

—Chelsea Haramia, PhD, Spring Hill College, Alabama

"A concise, fair, and thorough introduction to the arguments from all sides in the debate about abortion. Required reading for anyone wanting to engage the topic seriously."

—Noah Levin, PhD, Golden West College, California

"A nice presentation of the arguments and counterarguments on both sides of the debate about abortion. Nobis and Grob subject these arguments to critical scrutiny to arrive at well-reasoned conclusions on the issue."

—Ari Joffe, MD, Clinical Professor, Department of Pediatrics, University of Alberta

Reviews & Further Praise

  

Amazon reviews:

"Great introduction [to] this topic!" This book was very helpful for me in clarifying my thinking about this issue and was an instrumental element in my changing my mind about my position. It’s a relatively short read but is still full of great content. While the book ultimately defends the pro-choice position, it remains even-handed in its treatment of bad arguments on both sides of the debate. Because of this, it would serve well as course reading for a philosophy/ethics class. Overall highly recommended and at such a good price point the book is a no-braine[r] to buy but it’s available free online if you want to check it out first.

"Very worthwhile read." A clear, concise, objective look at a topic that too often gets drowned in emotion. 

"The Best Short Introduction to Arguments About Abortion."  I came to this book after seeing high praise from Peter Singer on twitter. This book is a clearly written and extremely useful survey and critical dissection of arguments on each side of the abortion debate. Although I've read many books on this issue, I still encountered new insights that I hadn't heard or thought of previously. That the authors have made this open access is a huge public service.

"Accessible and provocative." Provocative, accessible, clear and concise, this book offers an important opportunity to cut through the culture wars and approach this controversial topic from a unique angle. The writers propose questions and possibilities that need to be considered no matter what assumptions and conclusions one ha about abortion prior to reading. Great for individuals and for discussion groups. Don’t pass this resource by! 

"The ideal introduction to the ethics of abortion." This is the best write-up I know of for the various ethical considerations relevant to abortion. It is especially challenging to find clarity on this topic because of the strong emotions on both sides and the amount to which public discourse involves simply talking past each other. Nobis and Grob have also included the most important policy and scientific aspects of abortion that inform the ethical debates.  

"An Excellent Work: Required Reading for Anyone Interested in the Abortion Debate." In a time where many people question the value of Philosophy and the Humanities, Dr. Nobis and Dr. Grob have shown how philosophy can be applicable to some of our most important moral and ethical questions in society today. The debate over Abortion is perhaps one of the most contentious issues in the political arena today. Emotions run high on both sides given the passion that surrounds the issue. In their work "Thinking Critically About Abortion" the Authors seek to take a calm and rational look at the debate. Though they ultimately come down in favor of keeping Abortion legal, they still critique both sides and show how we can engage in philosophy to achieve a high-level and more productive debate on this issue that goes beyond logically fallacious argumentation. I will now briefly describe the various sections of the book . . (read the full review on Amazon)

GoodReads reviews:

• "You don't have to reach the same conclusions, but this is absolutely worth a read if you're truly interested in thinking critically about this issue rather than falling for the endless straw-man arguments (of either side) or reductive arguments that really only 'beg the question.'"
• "Quick and easy read for anyone looking to recognize bad arguments for what they are, and replace them with better ones."
• "An excellent and critical analysis of the most common arguments pro and against abortion. I personally enjoyed the way it’s set up to go over things one at a time. It helped me look at abortion from a morally neutral standpoint. Great read!"

A recommendation from the main page of a Reddit community page: ". . An excellent introductory we recommend is the online work: Thinking Critically About Abortion. This is, hands down, the best introductory resource to defend Abortion. The work does an excellent job of introducing you to the issue and providing resources for further explanation. In my opinion, it should be required reading for any sincere Pro-Choice advocate." 

A blog, "Secular Pro-Life Perspectives," posted some commentaries on the book entitled "Why Abortion is Still Wrong and Should be Illegal" (Part One, Part Two, Part Three). We haven't written any responses to these (but would, if anyone requested that), but did respond to an earlier post that comments on an earlier publication.

Teaching

The book is ideal for teaching purposes. If you would prefer to use something non- or less-argumentative, however, please review Nobis and Grob's "Common Arguments About Abortion"  (from Noah Levin, ed., Introduction to Ethics: An Open Educational Resource) and Nobis's "The Ethics of Abortion" (from 1000-Word Philosophy: An Introductory Anthology) which pair together well, along with any other readings on the topics. 

The book includes a set of discussion questions that are ideal for teaching and discussion groups. And here are some research tools to better review other ethical, legal and scientific evidence and arguments on the issues, as well as some suggested further readings. 

Here are some Youtube videos that review a PowerPoint presentation on arguments about abortion that was recently developed for teaching purposes; those slides are below.  

 Introduction and Defining Abortion:

Question-Begging Arguments about Abortion

Common, "Everyday" Arguments about Abortion:

Arguments that Abortion is Prima Facie Wrong:

Arguments that Abortion is Prima Facie Permissible and Conclusions:

PowerPoint slides:
 
 These slides in PDF.

  About the Authors

Nathan Nobis, Ph.D., is an Associate Professor of Philosophy at Morehouse College in Atlanta, Georgia. He is the author and co-author of many articles, chapters and other writings in ethics and philosophy. 

Kristina Grob, Ph.D., is an Assistant Professor of Philosophy at the University of South Carolina Sumter. Her interests include ethics and moral development. Each semester she shows students that philosophy can be a way of life, no matter their day jobs.

Contact

Please feel free to contact the authors through this form with any comments or questions. 

They can also be contacted through the book's Facebook page. 

Thinking Critically About Abortion

News!

Since the book came out, we've published this related essay in Areo Magazine: "Abortion and Soundbites: Why Pro-Choice Arguments Are Harder to Make" 

The APA (American Philosophical Association) Blog did a "Recently Published Book Spotlight" on the book.

A blog post: "If abortion is not wrong, then it's OK to kill sleeping people??"

"If abortion is not wrong, then it's OK to kill sleeping people??"

"If abortion is not wrong, then it's OK to kill sleeping people??"

A blog post: "When does life begin?' and 'Are Fetuses Human?': Two Bad Questions to Ask about Abortion"

Another blog post: "Public Philosophy on Abortion"

For the "Impossible Conversations" competition: a Letter exchange with Luke Krell and an exchange with Lauren Enriquez 

Also, Political Animal Magazine posted an excerpt of the book as one of a pair of essays introduced as "Arguing Dialectically about Abortion"

Now in print: Nathan Nobis, "Early and Later Abortions" and "Reply to Tollefsen" in Bob Fischer, ed., Ethics, Left and Right: The Moral Issues That Divide Us (Oxford University Press, 2019).

A "prequel" article, "Thinking Critically About Abortion" in Decaturish

 

AbortionArguments.com