Jane English's view of the abortion issue is what would best be described as moderate. She differs from many pro- and anti-abortion advocates in insisting that the central question is not whether the fetus is a person. Like Thomson, she maintains that even if the fetus is a person, it doesn't simply follow that abortion is wrong. But she goes on to argue that even if the fetus is not a person, it doesn't follow that abortion is simply acceptable in all circumstances.
Thee are two things that make her contribution distinctive. One is her emphasis on moral psychology -- on the attitudes, sympathies and so on that are needed to make morality function. The other is the way she combines this with an appeal to a position rather like rule utilitarianism.
In Section I she points out a characteristic feature of the abortion debate: foes of abortion point to supposed sufficient conditions of personhood that fetuses have; advocates of abortion rights point to supposed necessary conditions of personhood that fetuses lack. English writes: "[T]hese both presuppose that the concept of a person can be captured in a strait jacket of necessary and sufficient conditions." Instead, English claims, 'person' is a cluster concept. We can say what is more or less typical of persons. But we can't provide anything that could usefully be described as a definition -- a set of individually necessary and jointly sufficient conditions.
Here is an analogy that was popular in philosophy some years back. Try to come up with a definition of the word 'game' -- a definition that rules in all games and rules out all non-games. I'm willing to bet you won't succeed. There are features that are more or less typical of games, and games resemble one another in various ways, but there is no core of necessary and sufficient conditions. A mother and baby playing 'peek-a-boo' are playing a game. So are two world-class chess players in a championship match. So are a bunch of students playing hackey-sack. What, exactly, is it that all of these have in common?
According to English, 'person' has this same lack of definition. What is typical of persons includes biological factors, psychological factors, rationality factors, social factors and legal factors. In each category, we get features that, though typical, may not be central by themselves. (E.g., "has hands" is typical biologically, but hardly central.) These lists of typical features are just that; they don't function as a checklist that we can use to assess the personhood of the fetus.
There are necessary conditions: for example being alive; you can't be a person if you aren't alive. And there are sufficient conditions: for example, being a U.S. Senator. Anyone who is a U.S. Senator is certainly a person. But such conditions are not useful in sorting out problem cases. And the fetus, she says "is in the penumbra region where our concept of a person is not so simple." She maintains, therefore, that there is no conclusive way to settle the question of the status of the fetus. Early in pregnancy she would agree that very few of the typical features are present. Late in pregnancy many more are. But the variety of opinions we find over time and cultures about the beginnings of personhood should remind us: "the concept of a person isn't sharp... enough to [provide a] solution to the abortion controversy. To use it to solve that problem is to clarify obscurum per obscuris" -- the obscure through the obscure.
In section II, she considers what we could say on the assumption that the fetus is a person. She agrees with Thomson that abortion would still be permissible in some cases, and the cases she stresses involve self-defense. Here she offers her own set of thought-experiments, involving hypnotized people who, though innocent, have been commanded to attack you. She points out, correctly, I think, that even though the hypnotized people are in no way responsible for their actions, and are therefore innocent, you would be quite justified in killing them to save yourself. In fact, you would be justified in killing them if that was the only way that you could save yourself from relatively severe injuries that fall short of death itself. And she insists: if you have this right, you can transfer it to a bodyguard, who in effect acts as your agent. In a case in which pregnancy threatens the mother's life or health, the doctor is acting as her agent in her own self-defense.
And physical threats the only sort that justify killing in self-defense. By altering her example of the hypnotized attackers, she argues that if what was threatened was not your physical health, but a serious threat to your life prospects, you would still be justified in killing the innocent attacker. The analogy is obvious here. In certain circumstances, a pregnancy can be a serious threat to a woman's life prospects.
Some philosophers would see a problem with all of English's thought-experiments. Granted the hypnotized attackers are not responsible for what they are doing, and are in that sense innocent. Nonetheless, they are doing something to you. They are attacking you. The fetus is not doing anything. The philosopher Baruch Brody insists that this is a relevant difference. However, we will not pursue the issue further here.
There is another difference that English herself is aware of. In the usual case, the woman's own actions have something to do with the fact that she is pregnant. Many people would argue that this makes a difference. English considers a range of reactions from the claim that anything short of abstinence renders one responsible to the view that abortion is justified at any stage to avoid even a slight inconvenience, no matter how much responsibility one bears for getting pregnant. However, she doesn't offer us any principles for sorting through these possible reactions.
Whatever one thinks about the question of how the woman's own responsibility enters into the abortion debate, English does insist: after the baby is born, no one is justified in killing it. This is because there are other options -- most obviously, putting it up for adoption -- that one does not have while one is still pregnant.
This may seem unconvincing. If you do have these other options after the birth, then you will have them in the future if you are still waiting for the birth. If we are operating, for argument's sake, on the assumption that the fetus is a person, then surely there would be a strong case for saying: you should wait to put the child up for adoption rather than kill it now. Remember: we are talking about cases in which it is not the mother's life or physical health that is at stake, but her life prospects in some broader sense. In many cases, putting the baby up for adoption would largely eliminate this sort of threat, if 'threat' is the appropriate word. For example: if the mother believes she is simply not ready for motherhood, adoption is a way of dealing with the problem. The same can be said for other issues, such as job worries or money problems.
In section III, English considers the converse issue: suppose the fetus is not a person. The conclusion she comes to is that even if a fetus isn't a person, this does not make abortion on demand acceptable. Here she begins by pointing out that even non-persons are entitled to some moral consideration. "It is wrong to torture dogs for fun or to kill wild birds for no reason at all," she writes. "It is wrong, Period." But why?
It might be said that this is because if we allow that sort of behavior, we risk becoming the sorts of people who mistreat other people. But she thinks that this kind of narrow act-utilitarian answer is not correct. On her view, the task of moral philosophy is to come up with a moral system that we can use to deal with specific cases. The system must deal with cases in a general way -- here we see something like rule utilitarianism at work -- and it must be one that beings with our particular moral psychology could internalize and use to guide our actions. It presupposes a set of attitudes and sympathies that will promote the smooth operation of the moral rules. We must be _motivated_ to act in accord with the system, and motivation involves our feelings of guilt, compassion, sympathy, empathy, outrage and so on. A morality that is divorced from our moral psychology will be unable to command our assent. But, she says, "our psychological constitution makes it the case that for our ethical theory to work, it must prohibit certain treatment of non-persons which are sufficiently person-like." For our attitudes to hang together psychologically, we can't be expected to make large distinctions between fetuses a week before birth and babies a week thereafter. She writes "an early horror story from New York about nurses who were expected to alternate between caring for six-week premature infants and disposing of viable 24-week aborted fetuses is just that -- a horror story."
Her point is this: even if some philosopher could provide a theoretical basis for distinguishing these two cases, it would be unrealistic to expect people to adjust their psychologies to fit the distinction. And so, we might add, even if a philosopher like Mary Ann Warren can provide a theoretical argument for saying that a late-term fetus or a young infant is not a person, our sympathies can't be expected to follow. And if we were to mold ourselves into the sorts of people who had a cavalier attitude toward late-term fetuses, one might suspect, contrary to Warren, that we couldn't simply educate ourselves to have full respect for newborns or young children.
English is surely correct in thinking that we can't ignore our moral psychology. But some might argue that her way of making the case isn't strong enough. She claims, on the one hand, that we should treat torturing animals or having late-term abortions for minor reasons as absolutely wrong. But she also claims that ultimately, the rights of animals and fetuses are acquired second-hand, as a result of the need for our moral attitudes to hang together. This feels suspiciously like taking away with one hand what you have given with the other. It feels like saying that the prohibition on late-term abortions really is justified on (rule-) utilitarian grounds having to do with the consequences for the rest of our moral life and not because there is really anything intrinsically wrong with them. English attempts to avoid this conclusion, but her attempt is not altogether convincing. And it it might be argued that it makes her conclusion depend too strongly on armchair psychology. If our attitudes turn out to be more elastic than English thinks, her conclusion would not stand.
Perhaps this would not bother English. But Marquis will argue that the wrong involved in abortion is much deeper than English's account allows.
copyright Allen Stairs, 1998
stairs@glue.umd.edu