An abortive discussion

Theology blogging mega-star Halden has been responding vigorously to the Tiller killing (1, 2, 3, 4). His argument throughout is that if abortion is murder, then the only way to get out of the bind of being morally obligated to kill abortionists is to be a pacifist. Claiming that such matters need to be handled by a legitimate authority is no defense, because an authority that allows abortion (here conceived as a mass genocide) to go on is ipso facto illegitimate.

The funny thing is that pro-choice women never assassinate right-wing preachers, using the argument that they’re advocating that the government treat women who have become pregnant — even if they’ve taken every rational precaution to prevent it — as baby-making machines that must submit to the needs of the fetus within them even if it means certain death.

We’re asked to decide against abortion because the fetus might be a person and we should err on the side of caution when murder might be at stake — somehow it never enters the equation that we know for sure that the pregnant woman is a person.

Indeed, the question of how we might finally “objectively” decide on the personhood of a fetus never comes up either. (Will someone develop a soul detector?) This is really a case where an uncomfortable truth comes to the fore: who is a “person” is a human decision, determined by social recognition.

Now it would be possible for society as a whole to decide to recognize unborn fetuses as persons, or to decide that at some arbitrary point in the pregnancy they’ve crossed that line. The society that did that would not be “wrong” to do so — indeed, they’d be right by definition. But in my mind, such a move would have perverse and undesirable consequences, consequences that are anticipated by the moral incoherence and often depravity of those who buy into the “abortion is murder” line (and the “pacifist dodge” seems to me to participate in that incoherence).

The decision not to recognize some form of human life as a “person” is a fraught one, and in the past it has often led to horrible oppression and tragedy. Yet this is a case where extending that recognition would absolutely lead to negative “autoimmune”-type effects, in a way that recognizing the full personhood of non-whites or women or those strongly inclined to non-normative sexual expression has not.

28 thoughts on “An abortive discussion

  1. You last paragraph is certainly the most interesting for me.
    (The next part consists of things you know and implied heavily in that paragraph, I am just writing them to set up my concluding questions).

    Various theorists of the biopolitical (Agamben, Esposito, and even Derrida, though he doesn’t usually use that term) clearly have focused on the ways that persons have been stripped of their legal and normative protections as a necessary part of biopolitical machinery. And that this is done on behalf of, or at least in the name of, the true and authentic being. So, the scary thantopolitical part of the biopolitical occurs when we exclude beings from our legal and normative protections by not being fully a person.
    (Now to the questions)

    What is interesting about your last paragraph is it seems to be arguing that the scary thantopolitical thing can occur by including beings into our legal and normative protections. Which is a pretty stunning claim. One that I’ve been trying to figure out in relationship to the question of the animal. It seems to me that either this argument is on the cusp of a fairly interesting philosophical and political breakthrough, or reeks of fascism. Either way, I feel it probably needs thought put into it.

  2. I don’t want to misunderstand so can you explain: “Yet this is a case where extending that recognition would absolutely lead to negative “autoimmune”-type effects?”

  3. I understand I’m walking a thin line. I hope this is all taken in the spirit of a blog post, “throwing things out there,” etc. This is not to say that I want to disown what I wrote or distance myself from it — this sincerely is what I think, even if I haven’t thought through every consequence.

    I think it’s clear that the point of departure for expanding the circle of “full personhood” has been the adult (though not elderly) white property-owning male. It has been recognized that successive excluded groups are actually more like than unlike the already included group in the most relevant respects, such that their exclusion is unjust. But there are many human beings who are still excluded from “full personhood” for many purposes — for instance, children can’t vote, can’t own their own property, can’t make their own medical decisions, etc. — and there’s no significant controversy about that.

    In the case of the fetus, the analogy breaks down entirely, because we’re talking about a human life that hasn’t properly “come into the world” yet. If it is welcomed, then it is sometimes treated as a person in a kind of anticipatory way — if someone causes injury to it, for instance, they are punished. But at the same time, our current legal regime says that the woman — the person who is “already here” — can choose to intervene in such a way that the fetus never emerges into the world. If she is not allowed that option, then she effectively becomes subordinated to the fetus.

    In most historical cases of expanding the circle of inclusion, the counterargument came down to something like “diluting” the privilege of the already-inside group. But in the case of including the fetus, the further inclusion actively undermines the claim of women to full agency. A pregnant woman then becomes, as I say, little more than a baby machine. And if that’s the attitude, one can imagine a plausible “slippery slope” where women are regarded as always potentially pregnant and hence subjected to strict health regulations (maybe they can only drink if they’re on their period, for example, because otherwise they might be pregnant and endangering the fetus).

    Thus the inclusion of fetuses as full persons seems to me to lead to a much more substantive way to fascism than does the purely formal gesture of “exclusion.” As it stands, the fetus does have some rights in the late term even under Roe — for instance, the infamous late-term abortions are illegal unless medically necessary (and indeed, few women or doctors would choose to undertake such a radical procedure unless it was an emergency). That seems completely fine to me. I don’t think it’s a pure either/or — any more than the fact that children don’t have the same rights as adults means that children are homo sacer. Fetuses are a kind of human life that requires a certain kind of respect, but it is permissible, within reasonable limits, to prevent them from being born.

  4. I certainly take your ideas in the spirit of blogging (and blogging in the original spirit of the essay, attempts and trials to put thinking into writing). And likewise, I hope you take any comments I make in the spirit of solidarity with the task of thinking they are intended, rather than some sort of attack.

    In some ways I find your response more problematic than the original post. I will explain why in a bit. I should probably make clear that I am for abortion rights. What I am concerned about are certain (bio)political philosophical implications from (relatively shared) stances on the issue of abortion.

    First, the fact that the youth are still not included as fully persons is not, in and of itself, actually a fairly strong argument for excluding others. Partially, this is that I have always been somewhat radical on the question of youth rights and being anti-ageist, but there are other reasons. If you remember Agamben’s criticisms of rights in Homo Sacer, the fundamental problem with the notion of rights concerns exactly this question of full personhood. Who gets to count as a full citizen? Who counts as a partial barrier of rights? etc. The biopolitical movement concerns exactly those that are included by their exclusion (and vice versa). I’m sure you remember that. I’ll come back to this again, I just wanted to state I am concerned with any hierarchy of being, any logic that assumes these zones of indetermination as foundational in legal and normative practices.

    But I think there is a certain confusion of the claims made by pro-lifers on your part. They clearly are not saying that fetuses should have the same full legal rights as you and I. They aren’t trying to claim that youths should vote and that abortions are some extreme form of ageism. They are saying that fetuses as babies (which is what they believe fetuses are) are the ethical equals of you and me. This is also not a fairly uncontroversial claim. Just because we don’t allow children to vote we also don’t count the murder of a child as being less than the murder of an adult. That is because even if the child and the adult are not factual equals, they are ethical equals. So, obviously the question of if or when a fetus becomes a moral patient doesn’t go away.

    You then contend that if the fetus comes to be treated as a moral patient (sorry I keep using the analytic philosophical term, I just have been doing the wrong type of readings recently), it will make the woman subordinate to the fetus (and the somewhat silly slippery slope arguments you make after that). In short, we don’t know when or if a fetus is a moral patient, but we do know the mother is one, so we should side on the interests of the mother over the (possible) interests of the fetus (which makes me wonder why you bother to point out that late term fetuses have some rights, shouldn’t you be opposed to those as well?). It seems to me that we are constantly negotiating competing interests of moral patients, which sometimes we become subordinate to the interests of another (and some readings of Levinas might have it that it is only when we are subordinate to the Other that we are ethical), without becoming just slaves to the other. That indeed, the purpose of much ethical theory is how to engage in such negotiations, which are hard and complex and seldom easy. I guess I am saying I don’t think that just recognizing the fetus as a moral patient immediately means destroying the agency and freedom of the pregnant woman (even if that seems to be the conclusion many in the pro-life movement seems to draw).

    But really, in some way, that is all an aside for me. Here is the meat of what I want to talk about. You mention that children are not homo sacer even though they are not given the same rights as adults. Which reminded me of something else from Agamben, that homo sacer was not the only Roman law that embodied bare life. That there existed a more foundational law of bare life, that of vitae necisque potestas.

    And I guess that is why your response bothered me more than your original post. In your original post, I was given the strong idea that you didn’t really believe that a fetus counted as a moral patient. And that you were trying to articulate an interesting argument that including moral patients that don’t belong can sometimes be as harmful as excluding beings from being moral patients. And that is an interesting proposition. However, in your response I got the feeling that you thought that fetuses can be (at least sometimes) be moral patients, but that they shouldn’t be considered ethically equal. That we institute a hierarchy of being, and somehow the pregnant woman determines what level a fetus is to be given moral status (sovereign is she that determines the state of exception). All of that sounds pretty problematic to me. If a fetus is a moral patient, than it needs to be equal. Not supreme, but equal. Which requires some hard and practical ethical reasoning. But the equality is necessary. Either we exclude or we include, but none of this zone of indetermination stuff.

    One last thought. I am a proud member of the vegan philosophy mafia. For me all sentient beings are ethically equal. And I have frequently witnessed how including those that shouldn’t be included into the ethical community has resulted in some nasty excuses from vegan/vegetarian ethical commitments. In short, the old argument that if we need to kill to eat (and live), than there is no reason we can’t kill an animal the same as a plant (this argument, given to me by students, is essentially the same argument used by Derrida and Haraway in their rejections of vegetarianism). If we accept that plants are moral patients, than we are left with either the weird relativism that allows the slaughter of animals, or we are left with the terrible hierarchy of being. Either way, the foundations of an ethics that demands both a radical egalitarianism and an attunement to difference is lost.

    Lastly, I wrote this being unable to sleep, so I hope it is coherent, but I am worried that it isn’t. Sorry if that is true.

  5. Does the question really centre around the status of personhood? I would think that being a viable homo sapiens was enough to make the desctruction of the organism a moral question. In other words, doesn’t the debate take as one of its premises the inherent dignity of human being, rather than a level of actualisation of the potentialities therein?

  6. Point of information per Adam’s point about “potentially pregnant.” Either the NIH or CDC released a report few years ago claiming that all women between puberty and menopause should be treated by doctors as though they were ‘pre-pregnant,’ whether they had any intention of getting pregnant, whether they were using birth control, whether they were even sexually active when diagnosing and treating as mundane problems as the flu, a broken toe or an infected cut. I have no idea what ever became of this report, but it does suggest that there are some people, at least, in the medical bureaucracies who seem to hold the position that women should be subordinate not just to fetuses, but to fetuses that may never actually exist. This is a rather unique problem that men can never experience. (And it isn’t one that has an analogy in, say, animal ethics.) Even if our lives become organized around the health of our colon or testicles, it will never be the case that our interests become subordinate to a tumor growing in my balls or ass.

    For my part, I don’t think any moral crime has been committed when a fetus is terminated up to the point of actual birth (e.g., either through Ceasarian or birth canal). Once the fetus is out through birth, then it is human. Prior to that it is potentially human. I do, however, think that a moral crime has been committed when an animal is slaughtered for food or fashion or industrial rendering, used in an experiment, raced for entertainment, hunted, fished, put in a cage at a zoo, etc. I further don’t see any tension between these cases. I’m not sure how I justify it, but I don’t see either position as morally problematic.

    Put in another context, I’m certain that burning down an abortion clinic is a moral bad, but I’m not convinced that burning down a slaughter house or a laboratory is a moral bad. That is, my position is not pacifist or anti-violence.

  7. I’m having trouble figuring out how to respond. I’ll try, though.

    I said in the post that personhood (which I’m using in kind of a foggy way) depends on recognition. It seems that the woman has to be the one who decides on the status of the fetus, because you can’t get at the fetus without going through her — perhaps even literally “going through her” in the sense of abstracting her away. This is a really, really unique situation for a putative “person” to be in, and it’s something that pro-life advocates do not recognize at all. Spend enough time talking to a pro-lifer, and they’ll eventually get around to the point that the fetus’s “location” shouldn’t determine its rights — as though being inside and absolutely dependent on another person is just another “place” you happen to be! So as I said, if the woman welcomes the fetus, it is recognized in a certain way (but not unconditionally — there could still arise a medical emergency putting the mother’s life at risk).

    As for the late term, it seems to me that it’s reasonable to set a certain level after which the mother is regarded as having de facto recognized that there is a baby on the way — if she hasn’t taken care of it by then, you can assume she’s going through with it. Again, not unconditionally, since medical necessity can arise. That is in fact how the laws are now in the US, and I think that’s fine. Other countries also have time-based restrictions — also fine. But in no case does the fetus have an unconditional claim to be allowed to be born. If it endangers the mother, it is permissible to have an abortion.

    Having the health exemption does keep the woman from being totally enslaved to the fetus — but in the absolute “no exception” regime that many radical abortion opponents want, the woman is effectively a slave to the fetus. If the fetus is going to kill her, she has to let it. Putting more and more restrictions on abortions tends in that direction. For instance, what would the removal of the rape or incest exemption be saying about the agency of the woman?

  8. I must say that I’m skeptical of the way you seem to be deploying Agamben — as though we even could eliminate “zones of indistinction,” much less make that a coherent moral imperative. Agamben’s “solution” to the problems of sovereignty, etc., is the radical anarchism of the messianic age, where in several important senses we cease to be human at all. And it’s not even totally clear to me if Agamben views that as a real possibility or simply a matter for philosophical contemplation. In short, I’m skeptical of the moralistic use of Agamben (or of any of the major “theory” people) — it often seems to lead to a really naive idea that we can and therefore must straightforwardly “get rid of” whatever bad thing.

    I actually think that Derrida is more “practical” than Agamben insofar as he pairs his hyperbolic impossible ideal with a recognition that the existing structures give us something to work with — so we should stretch inclusion as far as possible without undermining the whole, etc. I suppose this is the conservativism of Derrida.

  9. I think you are correct, Adam. I have often thought that a pregnant woman should be considered like a foreign sovereign state which we cannot legitimately coerce.

    But I also think that, deep down, pro-lifers ackowledge this. This is why there are no real organized demonstrations, like there were for civil rights in the 1960s or against nuclear armament in the 1970s, where going to jail is a possible consequence. People pray in front of abortion clinics but they don’t barricade the doors.

    In a dark way, pro-lifers don’t really want to end abortion. They just want it done out of sight. This is why there is never any discussion of women, themselves, being murderers, even though abortion is “murder”. The entire blame is focused on the provider.

  10. Upon reading yours and Craig’s responses, and rereading what I last wrote, I realize I am going about this the wrong way. All my fault. And a really, really good reason I shouldn’t make posts to the internet when I am suffering from bouts of insomnia.

    So, to clarify my own personal position: my belief is that things without sentience cannot be objects of ethical consideration (at least in their own rights). Therefore, if a fetus doesn’t develop sentience for the first 20 weeks of a pregnancy, than abortion is not just ethically okay, I don’t even think this an ethical question (anymore than clipping your own toenails in an ethical consideration). So, while the Clintonian take that abortion should be safe, legal, and rare might make political sense, I still think it is a bad idea because the obvious intent is to make someone who gets an abortion feel bad, to create an emotional blackmail against abortion in the first place. So, first five months I don’t even think abortion is an ethical question.
    Once the fetus develops sentience ethical consideration are involved. But just because I think the fetus is now a moral patient, doesn’t mean that I now think the pregnant woman is subordinate to the fetus. As a matter of fact, not only do I think that abortion should still be allowed in cases when the mother’s life and health are at risk, and cases when the baby being born will have some physical issues that will cause great suffering, I think that in general the interests of a fetus are so narrow and limited that really as long as the abortion is performed in such a way to minimize pain, after five months it should still be allowed. But, I generally do feel that abortions after five months is a bit more ethically confusing, and probably should be rare. It is exactly because I think these later abortions should be rare, I feel no emotional blackmail should ever be used against women who seek earlier abortions. It should be roughly as stressful as getting surgery done on your toenail. That way we limit the amount emotional confusion, and women who plan to get an abortion will more likely do so sooner. But even if she decides later on, it should still be allowed. So, now that I have shown that my personal beliefs are in the same neighborhood as you and Craig, let me try to start again on what I think is interesting.

    I agree that sometimes including can be as problematic as excluding. I think this idea; exemplified by the idea of turning a woman into a baby machine here, or justifying eating flesh because animals and plants are both included; is one that has not been properly theorized by those thinkers on the domains of (auto)immunity and biopolitics. Not only is it not theorized, it is hard to express without sounding like a fascist. That is why the last paragraph of your first post was so interesting to me: It represented another concrete instance, and in many ways a very different one, for something I had been thinking about how to express vis-a-vis my work on animals (for example, why I find Matthew Calarco’s notion of moral agnosticism so problematic).

    Did I make more sense that time? I agree with you. And in agreement, I am taken with how fascist what you/I/we are saying sounds lie. And am therefore interested in both the theoretical concerns, but also in how to speak about such things without sounding like a fascist.

    Lastly, Craig, that is an interesting fact about someone wanting to treat all women as potentially pregnant. I rescind my characterization of the slippery slope arguments as silly. I guess I am constantly surprised by what positions people can take.

  11. I do think that the parallel situation with regarding the killing of plants morally problematic is interesting, and may show that we’ve hit on something here — an inherent limit to inclusion, let’s say. A self-undermining of inclusion — which honestly all our theory should’ve made us expect, but which our good liberal instincts makes us want to believe can’t exist. It does sound fascist, but maybe that’s because we’ve defined fascism way, way too loosely and formally.

  12. Hi Adam, I guess I’ll chime in here as a “pro-lifer” (with qualifications) who basically agrees with your first premise – “personhood” depends on recognition. Although, I think it’s worth stating that the premise is a pragmatic one; if one takes seriously the imago Dei as a primary element of personhood, then that religious commitment ought to trump any pragmatism. Of course, that isn’t the case. The problem is, as you point out, an inconsistency due to a lack of consensus on all these points.

    But if I’m understanding you correctly, you’re asserting that the woman’s personhood takes priority over the personhood of the fetus, because the woman’s personhood is more fully developed? Correct me if I’m misinterpreting you, but this seems to be putting the cart before the horse. I don’t think you can start by stating that the idea of personhood is muddled and then say that the woman’s personhood automatically deserves priority. Surely that depends on a prior proper understanding of personhood, which has yet to be established?

    I would not agree with those in the pro-life camp who would defend the life of the child, no matter what. That seems ethically irresponsible to me. But I also find it ethically irresponsible to give priority to the woman’s personhood, no matter what.

    Again, this may not be what you’re saying at all, but I often find that what clouds discussions of abortion is that neither side is willing to cede any philosophical or ethical ground: Pro-lifers always begin with the accusation of murder; pro-choicers always begin with the rights of the woman. Neither seems like a good starting point to me… but then, I don’t have a good solution fleshed out either.

  13. How am I taking a “no matter what” position? I’ve repeatedly said that once the pregnancy reaches a certain point, it makes sense to me to restrict the right to an abortion to cases of medical necessity.

  14. I would also seriously challenge the notion that the “imago dei” is something that inheres in each individual person. But that would (and will eventually) take a book to establish with any credibility, so I’ll forgive you if you stick with the more traditional view.

  15. Adam, sorry if I was putting words into your mouth. I worried I might be doing that, but then, I’ve had that problem for years! :-)

    Leaving aside the question of the imago —

    Where does the question of ethical responsibility as a privileged bearer of life come into play?

    I realize that, as a man, I may not know what I’m talking about here, but it strikes me that this discussion has primarily focused upon the woman’s carrying of the child as a potential problem, rather than (possibly) one of the greatest blessings for a human being… how would shifting our perspective in this regard affect the perception of ethical responsibility that comes with carrying the baby? Just wondering.

    (I do realize that some people will argue it might be more ethical to abort than to bring a child into what would be a horrible life, but I think that line of reasoning violates the potential “personhood” of the child.)

  16. Not a theologian… but how does imago Dei relate to personhood? If there is any being that is most certainly not a person, it is God! To be created imago Dei would suggest, on my rather superficial reading, that there is an absolutely inhuman core to the human – that divine element that is the image of God. Persoonhood isn’t limited to breathing humans – corporations, for instance, are legal persons. The process of “in-corp-orating” is the process of transforming a company into a person. I take it that Adam is referring to a sort of moral or legal personhood in this sense.

  17. Thanks for the clarification, Adam. I was under the impression that an old man in robes – looking a lot like Gandalf – was a popular representation! Unless you mean something else by “person.”

  18. I mean something else.

    GD, When you talk about the ethical responsibility of caring for the baby, you’re begging the question. When the woman decides to keep the baby, she’s taking on that responsibility. That’s obvious. But we’re not talking about the joys of childbirth in general, we’re talking about the permissibility of abortion. Obviously that’s going to focus the conversation on reasons one might not want to have a baby. And while there are real joys associated with raising a child, I think we can all agree that there are also really serious problems and sacrifices associated with it as well — it’s not like I’m exaggerating the downside of something that’s actually quite one-sidedly wonderful.

  19. Begging the question insofar as you’re forgetting the pragmatic definition of personhood you already accepted above — you’re assuming from the outset that there’s a person to be taken care of.

  20. Ah, got it. Thanks, Adam.

    Just to clarify/expand a bit on the imago Dei, my impression (as a Trinitarian Christian) is not so much that God can be defined as a “person”, but rather that 1) As the Creator, God imbues humanity with the capacity for the qualities that are “personhood” and 2) in Jesus Christ, the fullness of “personhood” is somehow discovered, and thus, we can somehow, by living in/as/with Christ, more fully become the persons we are intended to be.

  21. I have, of course, marked myself down for ‘the pacifist dodge’ position. I’m not sure what the “moral incoherence” is to which you refer, nor how the pacifist dodgers get caught in it. Indeed, you go on in the next paragraph to refer to exactly the kind of thing that makes the position prima facie coherent.

    The long reply to Bruce doesn’t get at things very well either because it continues to completely assume a world which is always already fascist, i.e. one in which opposition to abortion means a desire to make use of first world legal systems, health systems, etc. to enforce things even possibly to the absurd point of some kind of test rag check in bars. People who are genuinely pacifist don’t want a violent medico-legal establishment to “take their side.”

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