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April 26, 2007

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Can we really discover some criterion or feature of different procedures that will clearly distinguish abortion from infanticide? Or, should we imagine instead a spectrum of abortion procedures from early to late pregnancy, such that those in the middle of this spectrum could, with equal justification, be put on either side of an imaginary line?

Suppose that any reasonable way to make the distinction is vague, why conclude that borderline cases of infanticide are reasonably considered as definitely (or clearly) infanticide and also reasonably considered as definitely (or clearly) not infanticide? I can't see it. Whether you consider vagueness the result of semantic indecision or ignorance or vagueness in the world, why wouldn't the gravity of the situation urge that we resolve the vagueness in such a way that all and only the definitely (and, at higher orders of vagueness, the definitely, definitely, etc.) cases on non-infanticide are on one side, and the remaining cases are on the other? Effectively this places every case that is not on any borderline of infanticide on one side and the remaining cases on the other.
I'd say the same thing about someone up for a lengthy prison term: if the guy is definitely guilty then ok. But if he is indeterminately guilty, then not.

Whatever the reasonable though vague criteria that might be used to make moral distinctions here, clearly location in a woman's body seems irrelevant (as Laurie's post suggests). And in not allowing the woman's health or life to count against forbidding a certain procedure the court did not resolve vagueness in a way that clearly avoids harm to persons who should have legal protection. In other words, even if you thought the fetus's status was vague, there is no way to resolve the issue by playing it safe where another conflicting interest is also at stake.

But I also think that it is at least very plausible that the degree of reason to avoid a killing might well vary with the things which themselves vary in such a way that we are inclined to think that there is no discernible bright line to be found here. In other words, the continuous variation which makes plausible the thought that the issues are vague may also make plausible the thought that the reasons not to abort will vary in proportion to those changes. If so, the idea that we can somehow be safe by deciding to class all the vague cases as forbidden would not track the reasons that exist here. Rather, they would fail to take into account the varying force of the reasons.

It seems most plausible to me that the reasons vary in strength as the fetus gets more and more person-like, and the person in the best position to weigh these along with the other reasons in play is the person who is most involved, namely the woman who is pregnant. Any policy which tells her she cannot weigh these reasons and decide based on the particular facts of the case is itself in danger of doing a harm to a person on grounds that cannot be sustained by the weight of the reasons in play.

There's no safety in just plumping for one extreme, nor in enforcing the view that one plumps for.

In other words, the continuous variation which makes plausible the thought that the issues are vague may also make plausible the thought that the reasons not to abort will vary in proportion to those changes.

It is difficult to see how such reasons might reflect the vagueness of infanticide. Would you say that an action that is vaguely infanticide does not violate any rights since the being involved, say, only vaguely has a right to life? I'm not sure what it is to vaguely have a right or to vaguely being a member of the moral community. What sort of protection might that afford? That's why I opted for the cautious conclusion.
On a different score, I'm less certain what to do when the interests of someone who is vaguely an infant conflict with the interests of a normal human adult. It is not obvious that the moral way to resolve vagueness in these cases always involves considering the vague infant a non-infant. It would of course have something to do with the sorts of interests involved.

In a 1972 lower court decision (Abele v. Markle), a judge (Jon Newman) ruled that, if a fetus/infant happened to survive an abortion procedure, the doctors (or mother) did not have the right to kill the fetus (there had been some unintended "live birth" cases, when doctors attempted to induce a "stillbirth" after viability). Killing the fetus/infant in these circumstances would seem to constitute infanticide. The "viability" criterion for determining the outer limit for nontherapeutic abortion in Roe was developed from Newman's opinion. But Justice Kennedy, who wrote the majority opinion in Gonzales v. Carhart, refers to the fetus in a D&X abortion as "a child assuming the human form." So I'm wondering if some vague language such as "assuming the human form" has come to replace viability as the relevant criterion when killing a fetus constitutes infanticide, as the new ruling allows Congress or the states to prohibit D&X before viability. Or is it the combination of being "partially born" and "assuming the human form" that makes such abortions cross over the line to infanticide?

Viability is a somewhat arbitrary and vague criterion, as it seems to mark a stage of lung development that allows a premature infant to survive on a respirator. So is this new language better?

I can see why many disagree with the place the Court has drawn a line--I am among them--but I don't see how drawing such a line can be avoided. Surely critics of the Court don't think--to take an admittedly extreme example--a woman should be allowed to decide, while she is pregnant, that she will give birth to the child but hire a doctor to kill the child on its first birthday, an attitude analogous to one many people unfortunately do have towards their puppies and other pets. But then there is some (I'd say equal) burden for critics of the Court to say where said line should be drawn.

Eric,

The criticisms of the court are precisely that they are not sticking with the line they drew which was somewhere around the end of the second trimester. Now they are saying that certain ways of aborting a fetus, even before that time can be forbidden even in the absence of an exception to save the life or health of the woman involved. That seems both inconsistent with their previous decisions and a very strange line to draw since it seems to track nothing of any moral significance.

My criticisms of line drawing in the rest of what I posted were aimed against drawing a line so that all vagueness wound up on the forbidden side of the line, as I took Mike to suggest.

I'm saying that if you think the status of a fetus changes over some range, but you think that it is vague where exactly it happens it is not particularly rational to draw it at one end. And I'm saying that because I think that the more important thing going on is that the weight of reasons against aborting grow as the fetus gets more developed and that our judgements about moral status track these. Insofar as weightier reasons against can still be outweighed by weightier reasons for, and insofar as the particular situation determines which such reasons are in play, we are better off letting the people involved decide for themselves based on a weighing of those reasons, rather than draw a legal line forbidding the exercise of discretion somewhere in that range. We should draw the legal line only where we think people deciding to abort are much more likely than not to be taking those reasons into account in an inappropriate way. And my guess is that the end of the second trimester (as the court had previously held for different reasons) is a reasonable guess as to where that might be.

This is really just the application of the sort of thing Bentham emphasized long ago. When writing laws you should look at the effects of the laws, not just at the rightness or wrongness of the activities which the law would make illegal. A line which allows much discretion to the people on the scene will sometimes allow them to decide badly or wrongly. But it might still lead to more careful and generally correct decisions overall than a law which removes discretion. That's what I think here.

"The basic point of this statute is to draw a bright line between a procedure that induces fetal demise in utero and one where the lethal act occurs when the child or the fetus, whichever you want to call it, is more than halfway outside of the mother's womb…"

Is the Solicitor General even correct is the assumption that Intact D&E kills "the child or the fetus" outside the mother's womb in cases where we are talking about nonviable fetuses?

I'm not sure of the medical facts here, but it would be reasonable to suspect that using labor-inducing drugs, or manually turning the fetus to a breach position - common preparations for the Intact D&E procedure - ensure the fetus's early demise by ensuring that the pregnancy can no longer complete to term. In which case the fetus is no longer correctly described as a potential person, or child, by the time at which it is dismembered. The fetus's moral status is more like that of someone who has slipped into a coma without hope of awakening. One cannot then object to Intact D&E itself on the grounds that it cannot be distinguished from infanticide, unless you are also willing to claim that the euthanasia of someone in an irrecoverable coma is indistinguishable from murder. If there is a genuine target for the criticism, it would have to be the preparatory steps for the procedure.

It's true that we might say the fetus (which, as I've suggested, was no longer a potential child) is killed while in part outside the mother's womb, but now we've distinguished the act from infanticide, what's the moral concern here?

In any case, the last point seems unclear. Suppose that I poison someone with a lethal dose in the kitchen, then shoot them in the hallway. Did my killing consist in the shooting, or poisoning, or both? Did it take place in the kitchen or the hallway? I'm not sure I have the answer.

These are certainly emotionally powerful and morally difficult issues. There's no excuse for the lousy reasoning and wilful disregard of stare decisis that went almost without comment in the Carhart decision though.
Is the old viability line morally arbitrary? It's true that it is arbitrary from the point of view of development of the fetus. But not from the point of view of the rights of the mother clashing with the rights of the (potential) child. Suppose we just say that a woman has absolute right over her body; if she does not wish to carry a baby, she should not have to. The law could defend that right while insisting that no post-viability fetus be intentionally aborted, but rather may be prematurely delivered if the mother so wishes. While the child would no doubt be put at considerable risk in at least some of these cases, viability is the bright line at which the child's right to life is no longer in direct conflict with the mother's right over her body.

Mark,

Thanks for your reply; that helps to clarify your view.

I think I was set off more by the way the second set of (rhetorical?) questions in the original post were phrased, rather than by anything in your comment, whose force I appreciate.

I'm saying that if you think the status of a fetus changes over some range, but you think that it is vague where exactly it happens it is not particularly rational to draw it at one end.

Why isn't it "particularly rational"? There is a series of instances of development, d0, d1, d2, . . .,dn, through all of which we must concede that the being in question does not clearly not have properties that would make killing it, prima facie, a very serious wrong. I take it as non-negotiable that killing a normal, healthy infant is prima facie a very serious a wrong.
There are by hypothesis ways of precisifying the predicate 'is a person' so that the relevant being is a person and has all of the moral consideration due to a person. But, on any analysis of vagueness (epistemicist or not), there is no one that knows the being is not a person. I can't see how a moral decision in that sort of ignorance should not aim, first, to avoid a prima facie very serious wrong. In any case, it is certainly not irrational to do so.
As I said above, it is exactly what I would say concerning carrying out a death penalty. Whether or not such a penalty is ever justified, it certainly is not so--or so say I--if the relevant being is not definitely guilty. Would you say that since there sometimes are other moral considerations--say, considerations of deterence, etc.--it would be irrational not to sometimes carry out a death penalty on someone that is not definitely guilty?

Mike,

I'm not sure I see the relevance of the death penalty since I can't think of any good reasons for it. But for what it's worth I don't think we should execute people who aren't guilty.

The issue I'm talking about is about weighing reasons. If you are weighing reasons for and against a course of action and you think it is vague exactly where the reasons for that course of action no longer outstrip the reasons against, I think it is no more rational to draw a line so that all of the vague cases are treated as though the reasons against win rather than drawing it at some other place within the area of vagueness. That's my main point.

On a different but related issue, I am inclined to think that issues of personhood are essentially normative and to say that a creature counts as a person is to say that we cannot have reasons which count decisively in favor of treating them in certain ways. So I don't think that judgements about personhood are inputs into deciding how to treat fetuses rather than a handy way of summarizing how we think those issues come out. But this thought seems to me detachable from the earlier point about weighing reasons and vagueness.

My other main point is that there are two issues that need to be kept separate. (1) When and under what conditions is it morally right to choose to have an abortion. And (2) when and under what conditions is it a good idea to write a law removing that decision from the person who would be choosing to have the abortion. I'm arguing that the answer to (2) should not be sought by trying to figure out the answer to (1) and then forbidding those abortions which don't meet the criteria used to answer (1). And I think it would be even less plausible to draw the legal line so that all the abortions for which it was vague whether they passed the criteria given to answer (1) would be ruled illegal. (As an aside, it looks to me like the argument offered about punishing only the clearly guilty might would have this very upshot, at least if the guilt in question was moral guilt.)

I'm not sure I see the relevance of the death penalty since I can't think of any good reasons for it. But for what it's worth I don't think we should execute people who aren't guilty.

Mark, there's this analogy. Suppose it is indeterminate whether S actually committed the crime attributed to him. Since 'killing' is vague, S might have vaguely killed S', for instance. Now, interested parties might have moral reasons to punish S (terminally), just as there might be in the abortion case. Maybe nothing less would satisfy the agrieved family's (or everyone else's) sense of justice, etc. But, whatever the moral reasons in favor of termination, I would be very hesitant to concede that it is permissible to do so unless S determinately killed S'. I say this while agreeing that there are admissible ways of precisifying 'killed S'' under which it is true that S killed S'.
Now, if I'm following you, you seem to think that the moral reasons to terminate S diminish in proportion to the degree of vagueness of 'S killed S'. So, for instance, if the "truth-value" of 'S killed S'' is .47 (where 0 = false and 1 = true), then we have something like .47th the moral reasons to terminate S that we would have had had 'S killed S'' taken value 1. I'm not sure why you think that moral reasons track vagueness in this way. I doubt they do. But maybe I'm misunderstanding what your position is on moral reasons and vague cases. In any case, this is what I had in mind by the analogy.

Mike,

You write:
"I'm not sure why you think that moral reasons track vagueness in this way."

The hypothesis relevant to this issue is this: If personhood is essentially normative it seems to me that the issue of personhood is determined by the reasons in play. If it is vague that the reasons (of a certain sort) against terminating must override those for, then it is vague whether the fetus has the status of person. So my claim relevant to this issue is that the vagueness of personhood tracks the vagueness of the issue of which reasons override which. (This is a rough formulation because I think there are ways in which the kinds of reasons for and against come into play to complicate issues here.) The order of explanation on my view is the reverse of the one I think you take to be natural.

As an aside it isn't the vagueness of killing that tracks what the reasons are; fetuses which are not persons can be killed just as persons, cells and squirrels can. My thought is that to be a person is to be the sort of thing for which certain kinds of reasons are not sufficient to justify killing them. But I suspect you didn't mean to attribute to me the idea that killing was vague and that this was just a slip.

I agree with Eric that the Court must draw some line between infanticide and abortion, and I agree with Mark and Mike that this line should protect a woman's privacy with respect to decisions about her pregnancy and her health. In Roe and Casey, the line for nontherapeutic abortion is viability. States may proscribe abortion after viability but must permit "therapeutic" abortion (and/or medical induction of a live or still birth) after viability (i.e., exceptions to preserve a woman's life or health).

I don't think we should permit nontherapeutic premature delivery after viability, as Simon suggests, at least not until the probable health outcomes for premature infants improve. I agree with Simon that viability has some practical relevance, but not for the reason he thinks. Before viability, terminating a pregnancy will inevitably result in the death of the fetus, whereas at viability, the woman and doctor would seem to have a choice about saving the fetus. So, if they choose not to, their act seems more like infanticide. But should a woman seek to terminate her pregnancy at, say, 27 weeks, the choices are not so great. Even with the best intensive neonatal care (which most women won't have access to), her infant will be at high risk for some very serious disabilities. So viability is not perhaps the best point at which to balance the competing interests of the fetus and mother, if we mean both respecting the fetus's right to a healthy life and a woman's right to control her body.

I'm not optimistic that a bright line between abortion and infancticide can be drawn based on widely accepted beliefs about how best to balance women's privacy and liberty interests against respect for human life. Instead of drawing a bright line, I've proposed elsewhere that one policy alternative is to draw a flexible line for nontherapeutic abortion at a point that gives the large majority of women access to abortion for accidental pregnancies, and then permit therapeutic abortions after this point. The debate would then focus on what counts as "therapeutic," a category that could increasingly be narrowed as a pregnancy advanced. For example, up to 18 or 20 weeks, "therapeutic" might include mental health and inability to cope with severe social hardships such as rape and incest, whereas after 20 weeks it might include only those abortions necessary to preserve a woman's physical health or end a pregnancy with a severely damaged or ill and untreatable fetus.

We also need to have clearer policies on what steps doctors are required to take after viability to preserve the life and health of the fetus, especially when those steps could compromise the health of the pregnant woman. D&E appears to pose fewer health risks for women than medical induction, but should it be permitted after viability in therapeutic cases? Gonzales v. Carhart allows intact D&E when the fetus is no longer living (at least before viability).

The order of explanation on my view is the reverse of the one I think you take to be natural.

Yes, I do take the reverse as the natural one. My reasons for the permissibility of terminating depend on whether something is a person, not vice versa.

As an aside it isn't the vagueness of killing that tracks what the reasons are; fetuses which are not persons can be killed just as persons, cells and squirrels can. My thought is that to be a person is to be the sort of thing for which certain kinds of reasons are not sufficient to justify killing them. But I suspect you didn't mean to attribute to me the idea that killing was vague and that this was just a slip.

I was asserting that 'is killed' (perhaps 'is unjustifiably killed' would have been better) is a vague predicate, as indeed it is. I did assume you'd concur. If I kill Smith and as a direct result Jones dies as well (say, Smith was on his way to donate a kidney to Jones) do I kill Jones? I don't know. How remote can my actions be from their lethal effects before it is no longer killing? I think the line can reasonably be drawn on either side of whether the predicate applies. Again, though, we have a disagreement about what tracks what.

Mark, if there are vague reasons here, I'm not sure that your proposed method of dealing with them has any merit:

...the person in the best position to weigh these along with the other reasons in play is the person who is most involved, namely the woman who is pregnant. Any policy which tells her she cannot weigh these reasons and decide based on the particular facts of the case is itself in danger of doing a harm to a person on grounds that cannot be sustained by the weight of the reasons in play.

Surely we are talking about a pregnant woman's reasons or rights conflicting with the potential reasons or rights of the fetus here. Having her be the judge of a case in which she very clearly has a vested interest seems like a rather unlikely way to bring about a fair outcome.
To make an analogy, it is vague what constitutes "slavery" as opposed to voluntary domestic help in return for room and board, but we presumably ought not to let the individual slaveholders/employers decide how best to resolve the conflicting interests at stake - even if they have the best knowledge of their particular cases.

Laurie, I'm afraid I don't understand how viability can be a non-arbitrary line of moral relevance unless we assume that the mother's right to decide over her body is absolute (or at least, absolute in the eyes of the law). I took myself to be explaining how assuming that right would make the line non-arbitrary, and would provide the "bright line" the Court seeks between infanticide and abortion. If one denies the right to nontherapeutic premature delivery after viability, I don't see how one can consistently uphold a right to nontherapeutic abortion until just before. We could, of course, take your more restrictive view of a woman's right and talk about balancing competing rights from earlier in the pregnancy, but doing that has the disadvantage of making a bright line unavailable.
Also, you seemed to miss my point that intact D&E cannot be reasonably criticized as indistinguishable from infanticide if the fetus is prevented from being even potentially viable by the steps leading up to the procedure. It is those steps, if anything, that must be criticized. But then the particular abortion procedure used becomes irrelevant because the pregnancy is always terminated in the womb - it's presumably then the stage of the pregnancy alone that matters. This gives us an argument to show that the location at which intact D&E takes place doesn't matter morally without requiring anything like the (morally suspect) claim that location in general is morally irrelevant.

Simon,

I agree that viability has some practical significance, but I don't think it provides the kind of intelligible difference the Court wants. First of all, 'viability' is itself vague. By viability, do we mean ability to survive outside the womb for a couple weeks, indefinitely, or without major disabilities? The chances for long-term survival in good health increase with each week of gestation (esp. from 24-30 weeks), so we could declare that 'viability' means that week of pregnancy when the statistical norm for survival (in a well-equipped hospital) reaches 50%, or higher? Secondly, some fetuses have conditions that render them 'nonviable' or unable to survive on their own for long, whether they are at 25 weeks gestation or 36 (e.g., anencephaly). So 'viability' perhaps should be defined relative to each fetus, and its access to advanced neonatal care or treatment (rather than stage of pregnancy), if we think a woman should be able to get an abortion at say, 30 weeks, when say, an ultrasound shows that she is carrying a child that would probably not survive more than a few hours after birth.

Your point that an abortion cannot be equated with infanticide when the fetus is no longer potentially viable (because of the steps leading to the abortion) would also be true of the anencephalic case, so stage of pregnancy is not always what matters.

You raise an interesting issue about criticizing the steps leading up to an intact D&E abortion--this seems to be what some opponents are concerned about. Kennedy's opinion argues that intact D&E can cause women to anguish over their abortions, and it can also undermine doctors' ethics or their professional reputations. I discuss this on another blog http://blog.oup.com/2007/04/abortion/ The only sense I can make of why intact D&E (in which the doctor kills the fetus by puncturing and collapsing its skull) is closer to infanticide than nonintact D&E (in which the doctor cuts the fetus into pieces) is that, with the former procedure, the fetus (although non-viable) is "partially born."

There isn't a bright line here any more than there's a bright line when it comes to which kinds of animals we are ok to kill and eat. But that isn't to say that different principles for drawing a line--even if they draw it in the same place--are equally good. The court decision suggests that what matters are extrinsic properties--whether the fetus happens to be in utero or not. But this is like saying butchering cows or pigs in abattoirs is ok but out in public view isn't.

I'm a carnivore and I'm pro-choice. I don't have any firm convictions about where to draw the line in either case. But I'm pretty clear that we shouldn't butcher dogs and also that infanticide for newborns isn't as bad as killing normal adults. It's the idea that even ceteris paribus inside/outside should make difference that's the problem. The intuition here is the same one that makes us balk at best candidate accounts of personal identity--to which I'm actually somewhat sympathetic: extrinsic properties, like the survival of competitors or location shouldn't make a difference when it comes to personhood and the rights and privileges appertaining thereto.

However I suppose one might defend the way that one defends prohibitions on public execution, even if one is ok with private execution: it's brutalizing, blunts our sympathies, etc. Then again we should assume that people, women in particular, are rational about these matters. E.g. the pro-life campaign to get women seeking abortions to have ultrasounds showing the developing fetus. This shouldn't make any more difference than horror stories of how farm animals are treated. What these stories convince me of is that slaughter should be more humane and that we should worry about factory farming--not that we should stop raising animals for food and slaughtering them. Similarly, if a woman sees an ultrasound of her developing fetus, she shouldn't be put off of having an abortion--even if maybe she should conclude that humane infanticide would be better than dismembering the fetus in utero.

Simon,

I was trying to avoid posting any further on this topic for fear of repeating myself, but your comment addresses me directly so I suppose I should continue with one more response (which in fact does repeat much of what I said earlier). You wrote:

" Surely we are talking about a pregnant woman's reasons or rights conflicting with the potential reasons or rights of the fetus here. Having her be the judge of a case in which she very clearly has a vested interest seems like a rather unlikely way to bring about a fair outcome. "

My main response is that most pregnant women will in fact be very concerned to think about the interests of any person that results from the fetus they are carrying. In general, I think that the conflicting reasons for and against late term abortions in particular cases often have much to do with how properly to think of the well-being of a possible future person who may have this or that problem due to the circumstances of its birth. Sure the potential parents' interests are impacted as well and they might take them into account. (I think that they probably should.) But I very much doubt that deliberation is best thought of on an analogy with how to treat one's servants/slaves. The conflict involved is at least in part over how best to take such a potential person's interests into account, and potential parents are likely to care about that a lot more than legislators writing laws limiting abortion. And they surely know more of the relevant facts of the case at issue.

Insofar as your complaint is about letting the pregnant woman make the decision, the issue is about the rules which give people the power to decide, and not directly about what the best decision would be. And there I think Bentham's point is crucial. You've got to think about the effects of the policy as oppose to the alternative policies one could adopt. I believe that the people closest to the situation are in general apt to make better decisions about how to weigh up the reasons in play than those who want a rule removing their discretion. And I think that is true at least up to that point where it is clear that no reasonable person could think that the reasons to abort outweighed the reasons not to. That will likely include some area where some reasonable people might regard it as vague whether the fetus is a person.

The conflict involved is at least in part over how best to take such a potential person's interests into account, and potential parents are likely to care about that a lot more than legislators writing laws limiting abortion.

I had frankly given up as well on getting clear on the relative positions on this issue. But the suggestion that the interests of the fetus are given better consideration by prospective parents is incredible. Achieving anything like a disinterested perspective is extremely difficult in cases like these. The motive to self-deception and rationalization couldn't be any higher. Nice stories aside, the competing interests of parties that we are not legally required to take into account are most often not (and certainly not fully) taken into account.

Some have suggested that those that aim to both continue to legally permit abortions while outlawing intact dilation and extraction must rely on the thought that it is morally significant where in the woman's body the fetus/newborn is. And this does seem a morally arbitrary matter.

However, I would have thought such a person would do better to stress that what matters is whether the fetus/newborn is inside or outside the mother. And then the thought could be that as the fetus/newborn comes closer and closer to being fully outside the mother, the legal right to kill the fetus/newborn diminishes. This is relevant because, at least as the author that Shrage quotes from the Washington Post claims, in such procedures the fetus/newborn “is more than halfway outside of the mother's womb…"

I do not mean to support such a position, rather merely note that an advocate of such a position is not forced to say that where the fetus/newborn is within the mother morally matters. And, offhand, whether the fetus/newborn is (mainly) inside or (mainly) outside the mother does not seem nearly as obviously to be morally irrelevant. This seems especially true if we are maintaining that the mother has a right to kill the fetus/newborn on the grounds that she may control what happens in and to her body.

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