Sunday 26 June 2022

Abortion Bans as Conscription

Recent developments in the US have brought renewed interest to the ethics of abortion. I will skip over most of that rather parochial and politically tribalised debate and instead consider the ethical implications of prioritising the right to life of a foetus over its mother's right to autonomy. I will suggest that banning abortion for this reason could be justified in a liberal state, but this 'conscription' model would look quite different from the straightforward bans on abortion as wrongful killing that we are familiar with.

One part of the debate about the ethics of abortion concerns the moral status of the foetus, i.e. whether human beings count for the same and have the same rights whether or not they are inside a womb. On the one hand it seems arbitrary to say they don't, but on the other hand it seems equally arbitrary to assign equal moral status to a just-fertilised egg as to a conscious feeling creature. Nevertheless, the people arguing against the permissibility of abortion are nearly always doing so on the basis that it is wrong to kill a foetus because it is wrong to kill a human being ('Foetal lives matter!').

However, there is another angle to the debate that begins by recognising that both mother and foetus have moral status and then attempts to adjudicate the resulting conflict of rights. This is associated with a famous philosophy paper by Judith Jarvis Thomson (summary; full paper), but it also fits well with the reasoning for the original Roe v Wade decision. 

The core of this is the claim that just because a foetus has a right to life in general does not mean it has the right to receive the necessities of life from its mother in particular. In other words, there is a gap between the 1st and 2nd conclusions below.

P1. All humans have a right to life

P2. All fetuses are humans! 

C1. Therefore, all fetuses have a right to life (general)

P4. If fetuses have a right to life then it is always forbidden to end their lives 

C2. Therefore, it is forbidden for mothers to end a pregnancy if this will cause the death of a foetus (particular obligation) 

The heart of Thomson's argument is that rights do not automatically create corresponding obligations in particular people. For example, just because people have the right to food, shelter, or love doesn't mean they have the right to turn up at your house and demand to be fed, sheltered, and loved by you, and to have you punished if you don't fulfill those demands. Thomson provides the famous violinist thought experiment to support this by triggering our intuitions about the same point in a less familiar context (check it out if you haven't heard it before). 

The upshot is that women have the right to abort a foetus because they have the right to decide what their body is used for and to decide not to use it to provide shelter and sustenance to a foetus. This analyses the right to abortion as a (property) right to evict unwanted tenants from the body that you own and have your own plans for, a right which remains even though that eviction will lead to the unintended but inevitable death of the foetus and even if it is accepted that the foetus has an equal right to life as the mother. 

I am not arguing that people do not have a right to life - quite to the contrary, it seems to me that the primary control we must place on the acceptability of an account of rights is that it should turn out in that account to be a truth that all persons have a right to life. I am arguing only that having a right to life does not guarantee having either a right to be given the use of or a right to be allowed continued use of another person's body-even if one needs it for life itself. So the right to life will not serve the opponents of abortion in the very simple and clear way in which they seem to have thought it would. (Thomson p. 56)

As Thompson's article goes on to analyse, there is a difference between what would be a good thing for people to do and what they have a moral obligation to do. It might well be a morally good act to carry an unwanted pregnancy to term (kind, generous, selfless, etc) but this would be the kind of highly demanding action - like starting a soup kitchen for the homeless or donating a kidney - that is usually placed in the category of good but optional charitable acts. 

nobody is morally required to make large sacrifices, of health, of all other interests and concerns, of all other duties and commitments, for nine years, or even for nine months, in order to keep another person alive (Thomson p. 61-62)

Thomson suggests that compelling a woman to take a pregnancy to term is equivalent to compelling them to be Good Samaritans, and this is bizarre since there is no other area in which we think it reasonable for governments to compel this kind of extreme self-sacrifice of one's own interests for the sake of others. 

I find Thomson's rejection of the moral status issue extremely compelling, but I would now like to take her rights conflict analysis in a different direction by bringing in government in the role of a moral agent (trustee) for society. 

The key thing is that if a person has rights then this creates correlative duties on the society as a whole to meet them, and on the government as an institution that helps us meet our moral duties to each other. Once a child is born a government has a number of options for meeting the needs that follow from its right to life without having to compel anyone (except to pay their taxes). The government can hire people to care for the child or set up an adoption system to match it with suitable people who would like to be parents. However, before the child is born these options are not available. There is no way for the government as the agent of society to fulfill its duties to guarantee the right to life of a foetus that does not conflict with the right of its mother to control her body. 

Well, OK then. Governments compel people to do things for the public good all the time. It's one of the things governments are for (or we would never address collective action problems), for example by making everyone pay taxes to support things like orphanages and adoption systems - whether or not we personally agree with that use of our money. Moreover, this goes beyond confiscating or micromanaging our material property to conscripting our bodies. Governments have a well-known power to round up unwilling citizens (usually young men) and compel them to risk death trying to kill other people in order to advance the government's judgement of the national interest. 

If governments are permitted to compel something as morally and physically injurious as military service, then it is hard to see that compelling women to carry pregnancies to term would be illegitimate in principle. The argument goes something like this:

P1. People have rights
P2. Governments have duties to guarantee those rights, and legal powers to compel citizens to comply with those duties
P3. Coercion is bad
C. Therefore, governments should carry out their duties with the minimum coercion possible

The 3rd premise marks the distinction between a liberal society and the kind of communalist fantasy that socialists dream about where everyone is forced to be a Good Samaritan. Governments may only use coercion where non-coercive means fail and where its benefits outweigh its harms. In addition, people in a liberal society are not slaves even when they are being compelled. The reason for the compulsion is not to save money on the costs of persuading free people, but as a last resort to meet a higher moral need. The compelled must be treated with dignity and their interests and concerns respected as far as possible. Within those constraints, however, there does seem a liberal case for governments to compulsorily delegate their duty to meet the rights of unborn humans to their mothers i.e. by compelling them to act as incubators until the foetus is developed enough to survive outside the womb and other, more voluntary arrangements can be made for their care. 

Nonetheless, this conscription approach would be very different from the simple bans on abortion we now see. These treat abortion as if it were murder, whereas the correct way to see abortion - following Thomson - is as the ending of pregnancy (i.e. stopping the life-support system the foetus needs to survive and develop). In particular, the moral logic that would justify conscripting pregnant women to save the lives of unwanted foetuses does not justify dumping the entire burden of that role on those women. Rather, pregnant women would be playing one - essential - part in a moral division of labour supported by and in coordination with other institutions. In particular:

1. Unwanted pregnancies* should be understood as the responsibility of society as a whole because these women are bearing the burden of society's duty to guarantee foetuses' right to life. Moreover, this burden falls on them for no other reason than that their bodies play an irreplaceable role in keeping foetuses alive. Basic fairness requires reducing such arbitrary burdens as far as possible. That means for example that all the medical and employment costs and risks of pregnancy should be borne by the state (for the same reason that conscripts shouldn't have to pay for their guns or body armour or medical care).

2. Since an unwanted pregnancy is work on behalf of society, it is public service work and should be paid at least the public sector median wage. Doctors get paid for keeping people alive; teachers get paid for meeting children's right to an education; mothers should be paid for their essential contribution to meeting the foetus' right to life.

3. Since an unwanted pregnancy represents an unwanted child, governments must create a reliable and efficient adoption service that would match unwanted babies to wanting parents at birth.

4. Because coercion is bad, governments should systematically work to minimise the amount that is necessary. That includes minimising the number of unwanted pregnancies, for example with pro-active sex education and free easy access to long-term reversible contraception, especially for teenagers (the group most likely to want to end a pregnancy). It also includes research and development of care technologies for pre-term babies that would reduce the length of time for which a human body is the only means of keeping a foetus alive, and thus the length of time for which a pregnant woman's body would be conscripted by the state. 

Significantly, where societies do not fulfil their own moral obligations to minimise the burdens their moral commitments impose on pregnant women, the legitimacy of abortion bans themselves comes into question. In such cases we would have an illiberal government that picks and chooses which people's moral rights to take seriously, if any. Such a government treats citizens and their bodies merely as resources for its projects, and uses its power of compulsion as a cheap way of funding them (i.e. as slave labour). That is something everyone has the right to resist.

The argument goes like this**:
  1. Governments can ban abortions if children's right to life takes priority over women's right to bodily autonomy AND pregnant women should receive adequate compensation and support
  2. Suppose it is true that children's right to life takes priority over women's right to bodily autonomy
  3. Then EITHER pregnant women receive should adequate compensation and support OR it is not true that governments can ban abortions
Thus, whether or not foetuses have full moral status, and whether or not that moral status trumps women's right to bodily autonomy, is not sufficient to determine whether governments may ban abortion. 

In this short essay I have tried to bring out the possibility of looking at the ethics of abortion in a way that takes seriously the rights of both the mother and the foetus. I think the reason that looks so different from usual is that we are used to thinking in the binary terms of 'Who should have rights: the mother or the foetus?' This is a winners vs losers model of ethical debate modeled on a certain country's polarised politics. It is profoundly unhelpful.

*It is plausible to treat wanted pregnancies differently, on the grounds i) that parenthood is a private good that people should have to pay for themselves and ii) that in such cases the mother has voluntarily consented to accept responsibility for meeting the foetus' right to life. However, to the degree that a government tries to micromanage pregnancy to maximise their view of the interests of the foetus, this distinction would fall away and the government should pay its costs. 

  1. A ⊃ (B ∧ C)
  2. B
  3. Therefore, C or ~A
A=Governments can ban abortions
B=Children's right to life takes priority over women's right to bodily autonomy
C =Pregnant women should receive adequate compensation and support