Final Classic of the Year: The Morality of Abortion

 by Michael C. Dorf

[The following essay first appeared on the blog on July 3, 2017 under the title Can Non-Sentient Entities Have Interests? (and Other Questions Raised by a Recent Review of Our Book). I thought it an appropriate piece to re-post as the last classic of the year in light of the urgency questions about abortion have taken on post-Dobbs. I also thought it appropriate, as it reflects not only my views but also Sherry Colb's. The essay takes the form of a response to a book review, but it's more important as an exegesis of a view about when abortion is and isn't immoral, as well as about the proper relation between that kind of question and the law.]

The latest issue of Between the Species, an online philosophy journal, contains a review by Philosophy Professor Mylan Engel, Jr., of my book with Professor Sherry Colb, Beating Hearts: Abortion and Animal Rights. (Engel's paper is styled an "article" because it is substantially longer than most of the book reviews the journal publishes, but for simplicity I'll call it a review.) Engel's review is generous and thoughtful. Professor Colb and I are grateful for his overall assessment and especially for his conclusion that our book "would make an exceptionally useful supplemental text for any contemporary moral issues course that includes sections on abortion and animal ethics," including his own such course.

As one would expect from any serious scholar, even though Engel agrees with our core thesis and argument, he does not spare us criticism with respect to areas of disagreement. In this essay, I'll respond to a number of Engel's critiques. By way of preview, Engel's most pointed criticism addresses our contention that abortions of pre-sentient fetuses are not immoral because an entity that is not and has never been sentient lacks interests and thus cannot be harmed. Engel's review expands on points he made at a panel on our book in 2016, and my response here will largely track what Professor Colb said in response at the time. I'll also address a number of Engel's other points. However, before taking the gloves off, as it were, I want to re-emphasize that I am truly grateful for Engel's serious engagement with our book. As a scholar, it is much better to be vigorously critiqued than blandly praised or, much worse, ignored.

1. Is it wrong to abort a pre-sentient fetus?

In Beating Hearts, Colb and I say that abortion of a sentient fetus (one that has subjective experiences like pain or pleasure) harms that fetus and is thus presumptively immoral; accordingly, a woman who is considering having an abortion of a sentient fetus needs a good reason (like a threat to her life or health from a continued pregnancy, or the likelihood that the baby would have only a short life filled with pain, due to a severe fetal anomaly) to justify having the abortion; but, we say that the law nonetheless ought not to forbid abortion because converting a woman's moral duties into legal duties in this context amounts to sex-based reproductive servitude. Although he asks for greater specificity on some of these points, Engel does not appear to disagree with any of them. Rather, he mostly takes issue with another proposition we affirm: that abortion relatively early in pregnancy--before a fetus is sentient--does not harm the fetus, because the fetus at that point is not the kind of entity that can be harmed. It is still a something, not a someone.

To be clear, Colb and I also say that women might have other kinds of reasons for regarding abortion of a pre-sentient fetus as wrong. And we certainly think that involuntary abortion of a pre-sentient fetus is monstrous, albeit because of the harm it does to the woman and her partner, who have a very strong interest in becoming parents, not because of any harm to the pre-sentient fetus. But Engel is right that we think abortion of a pre-sentient fetus does not harm that fetus. He disagrees.

Engel uses our view of the harm caused by death (which we elaborate in Chapter 4) to derive the following proposition: (A) "Death harms an animal to the extent that it results in that animal’s life containing less net well-being than it would otherwise have contained." Well, he asks, why isn't that also true for a pre-sentient fetus? After all, he says: (B) "Aborting a normal healthy pre-sentient fetus that would have had a life worth living results in that organism having considerably less net well-being than it would have had if allowed to live."

With due respect, Engel begs rather than answers the key question here. In our Proposition (A), the animal harmed exists already before being killed. In Engel's Proposition (B), he assumes that "a normal pre-sentient fetus" is the being "that would have had a life worth living" in the absence of an abortion. Yet our point--with which Engel does not appear to disagree--is that a pre-sentient fetus is not yet a being. It therefore cannot be the same being as the post-sentient fetus that would have a life worth living.

Engel's view entails that the use of a form of contraception that prevents implantation of a normal healthy zygote or embryo in the uterine wall harms the zygote or embryo because it deprives the baby into which that zygote or embryo might have grown of a life worth living. Indeed, as Colb humorously explained during the book panel last year (beginning at the 53:27 mark), the failure of a fertile couple to have unprotected sex deprives the baby that would have emerged from that coupling of a life worth living. Yet I doubt that Engel or many of his or my readers would say that implantation-preventing contraception, much less the failure of a fertile couple to have sex, harms zygotes, embryos, sperm, or eggs--except perhaps on religious grounds to which neither Engel nor Colb and I appeal.

Engel also invokes what he takes to be a shared intuition. He imagines that a woman consumes alcohol early in pregnancy. "When the baby is subsequently born with severe fetal alcohol syndrome as a result of her first trimester drinking," he writes, "it is clear that the pregnant woman harmed the fetus, and it is also clear that the harm took place prior to fetal sentience." I think neither of these propositions is true, at least not in a way that advances Engel's position.

What is clear here? It is clear that as a result of actions the woman took at a time when no sentient fetus existed, in combination with her decision to carry her pregnancy to term and to do the physical and emotional work that a pregnancy entails, a baby was born with severe fetal alcohol syndrome. Is it clear (as Engel says) that the pregnant woman harmed the fetus when it lacked sentience?

During the panel (beginning at the 50:24 mark), Colb gave the following analogy: Suppose a villain poisons a cup of coffee and leaves it on his enemy's desk. The act is evil, but the harm does not occur unless and until the victim drinks the coffee and suffers the effects of the poison. The act of poisoning and placing the cup are acts with respect to inanimate objects; in combination with other events, they will likely lead to harm, but they have not yet caused harm prior to the drinking of the poisoned coffee. Likewise, a woman in her first first-trimester of a pregnancy that she intends to carry to term who drinks substantial quantities of alcohol sets in motion a chain of events that will lead to harm, but she does not harm the pre-sentient fetus.

Now it might be objected that in Colb's hypothetical, the poison doesn't act on a biological substrate until the victim drinks the coffee, whereas the alcohol does its damage to the pre-sentient fetus upon consumption. That's fair, but damage is not the same thing as harm. In everyday speech, we sometimes use the term "harm" to include damage to inanimate objects. A vandal who spray-paints his initials on the Mona Lisa "harms" the Mona Lisa in the sense of damaging it; he thereby harms the people who would have otherwise enjoyed viewing the undamaged Mona Lisa. But he does not thereby harm the Mona Lisa herself--at least not in the sense that we use "harm" in our book--because a painting is a something, not a someone.

The point is clearest if we imagine a man who works as an airline pilot, and thus exposes himself and his sperm to elevated levels of radiation, which pose a risk of birth defects in any children he fathers. Does he harm anyone at the moment of radiation exposure?

Engel's claims about harms to pre-sentient fetuses ultimately beg rather than answer the question of what it takes for a something to be transformed into a someone. We argue that sentience is the secret sauce. Engel does not offer any argument why we are mistaken, and his examples do not show what he thinks they show.

2. Is the act/omission distinction persuasive?

Engel appears to be as willing as he is to equate a non-sentient fetus with the being it may later become because he takes issue with the act/omission distinction. It is relatively easy (though still a mistake) to equate a non-sentient fetus with the baby it can become if one views fetal development as an inevitable and passive process. But as feminists have long argued, that characterization of pregnancy erases the work that gestating women do. Remaining pregnant is not just a failure to end a pregnancy; it requires that a woman give of herself. It is an act, not just an omission.

Engel says so what. Drawing on an example proposed by Peter Singer, he purports to explode the act/omission distinction. Failure to rescue a drowning child in a shallow pond for no better reason than a wish not to ruin one's shoes and pants, Engel says, "would be profoundly morally wrong," and thus, he concludes, we have positive moral duties.

It is an odd form of moral philosophy that draws sweeping conclusions from a single example without testing those conclusions against other examples, so let me offer an example that pulls in the other direction. Millions of people in the world would benefit from having more material resources. For many of them, it is a matter of life or death. Yet other millions of people in the developed world (including me, nearly all of my readers, and so far as I am aware, Engel) lead comfortable lives. We may donate some of our money to worthy causes, but we spend more money on ourselves and our families than what suffices to meet our minimal material needs, even though doing otherwise would save human lives. The difficulty with positive moral duties is that they have no logical stopping point. If the passerby in Singer's example has a moral duty to ruin his shoes and pants, why doesn't that imply that it is immoral to spend any substantial sum of money on new shoes or pants, when that money could be spent rescuing others from poverty? And why stop at shoes and pants? To their great credit, some moral philosophers actually do draw this conclusion and live what counts as a subsistence lifestyle for the developed world, but Engel purports to be drawing on widely shared moral intuitions.

How might Engel avoid the implication that living anything other than a subsistence lifestyle violates a moral duty? The immediacy of the drowning-child example appears to do some work. Engel says that the "positive duty to save the drowning child becomes even stronger, if [one is] the only person who can do so." Yet note that "even stronger" entails that the duty exists even if there are others who can perform the rescue. Moreover, suppose that there are other people who can rescue the child but for whatever reason are not doing so. Surely that would make the duty strong as well. Yet that is precisely the situation in which we in the developed world find ourselves with respect to the most destitute people in many developing countries.

In addition, even if one thinks there are moral duties, that does not explode the act/omission distinction. Are there no relevant moral differences between acts and omissions? Suppose that instead of failing to aid a drowning child, the hypothetical protagonist of Singer's example deliberately killed a child by drowning. Is that no different from failing to aid?

I do not mean to suggest that sound philosophical arguments cannot be marshaled against the act/omission distinction--either in general or in particular circumstances. I do mean to suggest, indeed to affirm vigorously, that sound philosophical arguments can also be marshaled for the distinction, especially in particular contexts. Even if we read the Singer/Engel drowning-child example for all it is worth, at most it shows that affirmative duties exist where they impose minimal burdens on those rendering aid. That conclusion has little bearing on the abortion question, unless one regards the burden that pregnancy imposes as minimal.

3. What do we think about men's duties and other important questions?

Engel wishes that we had given a more comprehensive account of our views on a number of issues regarding abortion. We have done so in various other fora. Much of Professor Colb's 2007 book--When Sex Counts: Making Babies and Making Law--addresses the sorts of questions about which Engel inquires. That book includes two chapters (31 and 32) that explore a question Engel asks in his review: if women cannot be conscripted into reproductive servitude, why is it that "men can be and routinely are legally conscripted into another kind of reproductive-related servitude" in the form of financial obligations to support children they would have preferred were never born?

Why don't we address that question and some of the other interesting questions Engel inquires about in his review? As we write on page 5 of Beating Hearts, we do not intend the "book as a comprehensive treatment of the moral or tactical issues raised by either abortion or animal exploitation and slaughter." Rather, "our chief aim is to explore the connections of those questions to one another, not to answer every question that arises in each field." Most of the important questions Engel poses for us dive deep into abortion issues that have no obvious parallel with respect to debates about animal rights.

That said, I do want to correct Engel's inference about one of our positions. Engel is particularly interested in knowing what sorts of reasons we think should count as sufficient to justify a woman's decision to abort a pregnancy after fetal sentience. He writes:
Is the desire to not be pregnant a weighty enough reason to justify killing a sentient being with a right to life? Is the desire for a child of a different sex a sufficiently weighty reason to terminate a sentient fetus? I suspect that their answers would be “Yes” and “No,” respectively, because they think that a “woman has the right to end the internal occupation of her body” (89), but don’t think that “she has the right to discover whether her fetus is male or female” (89).
Engel is right about our view of sex-selection abortion, but wrong about the desire not to be pregnant. We do not think that the desire not to be pregnant is a weighty enough reason to justify killing a sentient fetus from the woman's perspective. If it were, then that would mean that virtually no abortions of sentient fetuses would be wrong, because the desire to end a pregnancy is almost always at least part of the motivation for an abortion. Yet we say that only weighty reasons can provide a moral justification for a post-sentience abortion.

Why does Engel think we take a different position? The language that Engel cites above about both internal occupations and sex-selection abortion occurs in a portion of the book that asks what legal duties may be imposed on a pregnant woman by the state; it is not about moral duties on a woman herself. In discussing what we call "reproductive servitude," we necessarily had in mind circumstances in which the state (or some other third party) forces a woman to remain pregnant. The idea of servitude does not fit well with decisions a woman makes for herself.

Engel's confusion on this point is puzzling because at several places in his review--including the paragraph immediately following the one quoted above--he recognizes the distinction we draw between moral rights and duties versus legal rights and duties. Nevertheless, I am happy to have clarified our position here.

4. What tactics should the animal rights movement use?

Part 2 of Engel's review takes issue with some of what we say about the best tactics to be adopted by the animal rights movement. He says that whereas "Colb and Dorf offer a largely a priori argument" for doubting that animal exploitation will be abolished by so-called welfarist measures that have as their immediate aim the amelioration of the conditions under which animals are exploited, he "want[s] to stress that the issue is an empirical one." Here Engel has badly misread us.

In seven separate places in our chapters on strategy and tactics, Beating Hearts says that whether any particular approach is likely to work is an empirical question. We also say that there is a normative question about what activists should do, but a careful reader should not have missed our view that efficacy must ultimately be judged empirically. For example, we say on page 134: "Whether animal welfare and abortion welfare reforms will lead, respectively, to abolition of animal exploitation and abortion are complex questions that can only be truly answered empirically." Similar statements pervade our strategy and tactics chapters.

What does Engel mistake for an "a priori argument?" We review the empirical evidence available to date and find it inconclusive on the important questions. We thus offer some reasons for hope and skepticism about various approaches in the two movements, based on existing practices and beliefs of the public. These are not a priori arguments but hypotheses grounded in what we know, pending our becoming better informed.

Engel focuses particular attention on the use of violent images by the animal-rights movement. We say in Beating Hearts that it is morally appropriate to use such images but that we worry about the possibility of desensitization. Engel states that his own experience teaching philosophy persuades him that showing graphic images at slaughterhouses is effective. His experience is his experience, but the plural of "anecdote" is not "data."

To be fair, Engel also cites the work of Farm Animal Rights Movement (FARM) in paying people a dollar each to watch a graphic video, touting the supposed success of this approach. We are not unaware of FARM's work. We describe it in endnote 10 on page 228. FARM touts impressive numbers about people's intentions, but the real question is follow-through. Our movement has a retention problem, not just a recruitment problem. We agree with Engel that it would be very useful to have more and more reliable data on a range of questions about what strategies and tactics actually work in the real world. Indeed, we say that--repeatedly--in Beating Hearts.

* * *
Engel concludes by noting that none of his disagreements with Colb and me affect our core thesis. I want to second that conclusion. Even if I'm wrong and he's right about everything I've discussed in this Essay, ours is very much an intramural dispute. That is not to say that we are arguing over small questions. It is to say that there are still bigger questions on which we agree. Thus I'll end simply by quoting Engel's bottom line: "The case for ethical veganism is much stronger than the case against abortion (even where sentient fetuses are concerned). Indeed, veganism is morally required when plant-based food is available."