The impending death of constitutionally-protected abortion rights in the United States highlights the fact that one of the major political controversies of our era implicates a deeply philosophical puzzle. In everyday life, there are certain entities with respect to which serious questions about how we ought to treat them frequently arise. Some clear examples include human children and adults, and perhaps some other animals. Call such entities moral subjects, defined minimally as beings that, in our reasoning about how to act, are entitled to a quantum of consideration concerning how our actions affect them. An important group within this category consists of beings that are entitled to the degree of consideration we are typically obliged to give to human adults and children. I will call these beings strong moral subjects. Possessing an entitlement to such strong consideration is often referred to as having a “moral right.” Thus, if human adults generally possess a moral right to life, this means at a minimum that for other moral agents, certain actions — paradigmatically, and with narrow exceptions, deliberately killing them — are out-of-bounds. Yet there are many other entities that do not ordinarily seem to demand any degree of consideration — for example, chairs and stones. Call these entities things. At least a large part of the abortion debate — though not all of it, as Giles Howdle reminds us — seems to revolve around the question whether the unborn fall within the category of things or that of strong moral subjects. This is the so-called “moral status” question.
Yet, as I will argue, the popular and significant portions of the philosophical discourses about moral status are deeply mistaken.
To begin with the popular discourse, consider the language used in an introduction to a recent episode of Ezra Klein’s podcast featuring a discussion about the ethics of abortion with the moral philosopher Kate Greasley. “We discuss . . . why the status of fetal life is the central question at the heart of abortion ethics, [and] whether life begins at conception or emerges later in fetal development.” This focus on the question of when fetal life begins, which is characteristic of how many ordinary people tend to talk about the abortion issue, is liable to cause immense confusion. To start with, “life” is a highly ambiguous term: Merriam-Webster enumerates no less than twenty distinct meanings that we attach to it in common parlance. In many contexts, it refers to a biological characteristic — namely, the characteristic that distinguishes animals and plants from inorganic matter.
Now in one way, whether the fetus is alive in this biological sense is clearly relevant to the question whether the fetus is a strong moral subject possessing a right to life, since inorganic things cannot have a right to biological life. At the same time, however, it is intuitively not sufficient to clinch the question. After all, virtually no one thinks that merely in virtue of being alive, an entity is a strong moral subject. This view would put amoeba, algae, and bacteria on a moral level with adult human beings. So, it’s hard to see how the question of when the fetus becomes a living organism is the central question of abortion ethics. Another common meaning of “life” is biographical — something like the series of events that make up a living thing’s existence. Of course, when a being’s life begins in this biographical sense is parasitic on when the being becomes alive in the biological sense. Moreover, all living things have a life in this sense. Hence, the biographical sense of “life” does not take us beyond the biological sense in answering the moral status question.
It is also common in the popular discourse to see the question whether the fetus is a “human being” treated as central. But the terms “human” or “human being” are ambiguous in ways similar to “life.”
In one sense or cluster of senses, “human being” is a biological term denoting (a) possession of a characteristic human morphology; (b) membership in the species homo sapiens; or (c) possession of a certain genome. But quick reflection suggests that these characteristics are intuitively neither necessary nor sufficient for strong moral subject-hood. Any given episode of Star Trek suggests that non-human aliens may be strong moral subjects; and isolated human skin cells don’t seem to have a strong claim to consideration.
So much for the popular discourse. The philosopher Mary Anne Warren’s classic paper “On the Moral and Legal Status of Abortion,” still a staple of ethics courses across the country, serves as a paradigm for a common philosophical approach to the moral status question. Warren argues that the key issue is not whether the fetus is, say, alive or human, but whether it is a person. There are two crucial parts to her account of personhood. First, she says that all and only persons have full moral rights. (By “full” moral rights, she means something like the moral rights typically afforded to adult human beings as such). In other words, personhood is the decisive criterion for strong moral subject-hood, and it operates like an on/off switch: if you are a person, you are a strong moral subject, and if you are not a person, you aren’t. Second, Warren says that personhood itself can be defined as the possession of at least some of five capacities: consciousness, reasoning, self-motivated activity, the capacity to communicate an indefinite number of messages, and the presence of self-concepts.
Taken together, Warren’s account implies that the possession of some combination of these capacities is a necessary and sufficient condition for strong moral subject-hood. Warren goes on to argue that fetuses are not persons, and therefore do not have moral rights.
There are, in my view, two serious problems with this approach. The first is that it may involve a worrying circularity. In developing her account of the characteristics that constitute personhood, she asks us to consult our intuitions about which capacities we would count as relevant to determining whether newly-discovered alien life possessed a moral right to life. She plausibly claims that we would consider the five capacities listed in the last paragraph as relevant to that determination. But she does not ask us to consider whether, if we discovered that the aliens possessed those capacities and reproduced in a similar fashion as human beings, we would consider their fetuses as possessing the moral right to life and accordingly change our account of the characteristics necessary for strong moral subject-hood.
That question seems highly pertinent to the inquiry, but it introduces a dilemma for Warren. On the one hand, many people might conclude that they would consider the alien fetuses as possessing a right to life, and on this basis develop an account of personhood that counts human fetuses as persons, which would be an unwelcome result from Warren’s point of view. On the other hand, many others might conclude that they would not count the alien fetuses as rights-bearers. But if they went on to develop an account of personhood that excludes human fetuses partly on the basis of this intuition, they might be vulnerable to a circularity objection. The ultimate basis for the conclusion that human fetuses lack the right to life would be an intuition about the moral rights of alien fetuses. But since ex hypothesi the human and alien fetuses are so similar, that intuition would in all probability be itself based on the person’s views about the moral rights of human fetuses. Thus, the conclusion would be ultimately based on a premise that is identical to it.
This is sort of like holding that God exists because the Bible says so — based on the claim that what the Bible says is trustworthy because it is divinely inspired.
(Indeed, the same circularity problem would arise in the case of the person who would count the alien fetus as possessing the right to life.)
An even more serious problem with Warren’s approach is that it assumes a criterial account of moral status, according to which strong moral subject-hood is conceptually structured in terms of some set of necessary and sufficient characteristics. Again, on this approach, if you have capacities X, Y, and Z, then you are a strong moral subject; if you don’t, then you aren’t. One result of this way of thinking that students often encounter is that it turns out to be quite difficult to develop a criterial account that can accommodate all of our intuitions about strong moral subject-hood. For example, we seem to treat some non-conscious, non-reasoning, non-communicative, and non-self-aware human beings very differently from others. But why think moral status is conceptually structured like this? Instead of arguing further against the criterial approach, let me sketch out another approach that I think may be more fruitful.
The approach I favor is one that focuses on the question, what are the moral costs and benefits — principally understood in terms of aggregate welfare, autonomy, and equality — of adopting as a general rule that such-and-such a class of beings possesses strong moral subject-hood?
On this view, recognizing that fetuses do or not have a right to life is itself a moral choice, not one conceptually compelled by their possession of capacities like consciousness, rationality, and so on. Of course, whether fetuses do or do not possess these capacities may be highly relevant to our moral calculus. But this approach does not treat the possession of these capacities as a criterion of strong moral subject-hood. Rather, these capacities are probably relevant because they bear on the welfare, autonomy, and equality of all affected by the decision to treat fetuses as strong moral subjects.
A few surprising consequences may follow from my approach. First, it may follow that two classes of human beings with exactly the same intrinsic characteristics have fundamentally different moral statuses. This might sound strange, but that is because our thinking about this question is so deeply in thrall to the criterial approach. Second, it may follow that the same class of human beings might have one moral status under some circumstances and another moral status under other circumstances. Again, this seems strange, given that we’ve been taught that strong moral subject-hood wholly rests on the possession of certain intrinsic capacities. But if my view is correct, then it turns out to be not quite right to aver that, as the saying goes, you have rights simply because you are human. If by “human” we mean “possessing capacities X, Y, and Z,” on my view you don’t have rights simply because you are human; and you have rights because you are human only insofar as having X, Y, and Z is relevant to the overall moral costs and benefits of treating the class of human beings to which you belong as a rights-bearing class. Moreover, having these capacities does not guarantee that you have rights.
A full defense of my account of moral status goes well beyond the scope of this column; and without this defense, it may seem like the cure is worse than the disease.
Nevertheless, the main attractions of my account, I think, are that it avoids the potential circularity of Warren’s approach, as well as the tendency of that approach to devolve into a kind of desultory parlor game in which one tweaks one’s account of personhood ad nauseam to better accommodate intuitions about who has rights. It can also better account for some of those intuitions, although I will not argue that point here.
Even if the reader ultimately prefers the more orthodox philosophical approach to the moral status question, I think there is little doubt that popular discussions of the question are often couched in terms that serve to obscure rather than elucidate. This is one area where philosophy can perhaps be of greatest use — even if it may not be able to resolve the debate, it can help clarify its terms in ways that may facilitate moral and political progress.