The extended discussion of Matt’s last post has got me thinking about abortion. I freely admitt that this is not a subject that I have actually spent a lot of time on, so I can’t claim that what follows is informed by either deep reading or deep thinking. What I have tried to do is put together an argument that makes sense out of the Church’s somewhat modified pro-life position, i.e. no abortion with limited exceptions of for rape, threats to life, etc. Warning, what follows contains a fair amount of pseudo-philosophical rambling.
Suppose that we are trying to figure out what a just legal regime would look like for fornicators. By fornicators I mean those who engage in mutually voluntary sexual intercourse who are not married and do no desire to become parents.
First imagine a society in which because of the inadequacies of legal rules men cannot be made to accept any costs that might exists because of pregnancy, from medical costs to personal discomfort. However, imagine that we have in this society an infinite demand for adoptable children, regardless of race or condition. Once a child is born there is no reason that the biological parents need to be parents.
Is this system of rules just? It is clear that opportunities for fornication are not equally distributed according to gender. Men can engage in virtually costless sexual dalliance, while women cannot. From the outset let’s assume that unless we can articulate a good reason, gender is a morally irrelevant characteristic, that is no significant social costs or benefits should be borne solely because of gender. Thus, for example, arguments based on implicit notions of male sexual privilege are out. We can’t say that sex is fine but boys will be boys and it is up to the girls to play goalie.
However, despite rejecting these sorts of arguments, there are two plausible reasons to suppose that this society is not unjust. First, there is the sinful nature of fornication. People ought not to engage in premarital sex and to the extent that the discomfort and cost of pregnancy result that is just fine, especially since women know that there is a risk of pregnancy. On reflection, however, it doesn’t seem that the sinfulness of fornication can do this much work. For example, suppose that we were to punish all murderers. It would not follow that different levels of punishment on the basis of morally irrelevant factors would be just fine. I take it as uncontroversial that it would be unjust to punish black murderers more severely than white murderers, or vice-versa. Nor do I think that we can cure this injustice by announcing the rule ahead of time, and then telling the black or white murderer that their disproportionate punishment was not unexpected.
The second plausible defense of this set of rules would be based on the idea of consent. Here the objection is not that fornication is substantively sinful, but rather than no woman will have to bear the costs of pregnancy except through her own voluntary actions. Her consent vitiates any claim that she might have to the injustice of the situation. This seems to me a much more powerful defense than the one based on the sinfulness of fornication. However, in the end I am not quite persuaded. I take it that for consensual transactions to have the moral status ascribed to them by this argument they must take place in a fair bargaining situation. For example, I don’t think that anyone would say that consent obtained by fraud or threats to personal safety has moral significance. I would contend that the inability of the woman to effectively bargain out of her risk vitiates the fairness of the bargaining situation, especially since the inalienability of the risk is a result of the legal regime. As I said, though, I think this is a tougher case.
So I take that we have established that the system of legal rules that I have outlined is unjust. What should our response be? Well there are two choices. We can use medical technology (abortion) to reduce the costs borne by the woman, or we can use legal technology (payments) to force men to share these costs. Leaving aside for now the moral status of the fetus, how would we decide? If we have the notion that fornication is a right, a social good to be justly distributed, then medical technology seems preferable to legal technology. The reason is that the legal solution would attach needless costs to the exercise of the right.
As should be clear, I don’t think this is a good response because I do not regard fornication as a right. Indeed, I might go so far as to say that fornication ought to be affirmatively sanctioned by society. On this basis I might opt for the legal solution, but I need not do so. I could allow abortion and simply insist on a fine or some other punishment. However, opting for pregnancy followed by transfer payment from father to mother would massively decrease my enforcement costs. Pregnancy is a nice, big, public signal of private, difficult to monitor behavior.
We thus have an argument against abortion based solely on the idea of fornication. We don’t invoke the moral status of the fetus. We also are not using the fornicators as means to some social end, e.g. drafting them into the business of baby production for the infinitely demanding adoption market. Of course, this argument is not perfect. It doesn’t have a way of effectively dealing with the problem of a judgment proof father. Of course, one could get around this problem by simply punishing poor, male fornicators with some sanction that is of equal unpleasantness with unwanted pregnancy. We beat them with a few stripes. How many may be a difficult question, but is not theoretically insurmountable.
Now lets start relaxing some of the assumptions that I made. First, obviously the moral status of the fetus matters a great deal. I don’t think that one can defensibly treat a fetus as nothing more than a bit of invasive tissue or a foreign parasite. However, figuring out the precise status of the fetus is difficult. For example, we have no useful church guidance on this point. What we do know is that an unborn fetus is an entity entitled to some level of moral respect. It may be entitled to be viewed as a “full”; human being, and my sense is that late in the pregnancy this is obviously the case. I am agnostic earlier in the pregnancy, but my agnosticism comes from real ignorance. A blastocyst may be a “full” person for all I know!
Against this background of ambiguity, the equality argument for abortion that I sketched above becomes even weaker. Indeed, even if I thought that fornication was a right, I could plausibly argue for a prohibition on abortion. Using medical technology to equalize the costs rather than legal technology involves foisting all of the costs of the fornication on to the fetus, who is the non-consensual party in the transaction. Alternatively, I could argue that the risk of injustice in this case – murdering the innocent – is grave enough that it justifies burdening the right to fornication. Once one abandons the notion that there is a right to fornication, it seems that the argument against abortion becomes even stronger. Risking the murder of innocents to reduce the costs of a sinful activity seems indefensible to me.
Now lets relax my other big assumption: the infinite demand for adoptions. In a world in which adoption may not be an option, we have three alternatives. First, we could make parental duties inalienable. Second, we could make parental duties alienable but provide no support for abandoned children. Third, we could make parental duties alienable but provide support for abandoned children.
The first solution has some big problems. Assuming that we want to distribute the burdens equally between father and mother, we will face major problems with our legal technology. Forcing transfers from father to mother during pregnancy is relatively easy. It requires little monitoring and probably no more than a few legal transactions. Forcing transfers from father to mother over the course of the twenty or so years of a child’s childhood will be a hugely difficult job. The problem is that if the father wants to run, tracking him down, forcing him to pay, gathering his assets, etc. will be very difficult. In contrast, initial monitoring of the woman will be comparatively easy. Of course one might try to adjust this inequality by reducing the monitoring of women so that they can run as easily as men. However this starts looking a lot like the second solution, allowing parents to alienate (ie abandon) their parental duties and leaving the children to fend for themselves.
The problem with this solution is that in its extreme form it varies very little from the abortion solution. Abandoning a child without any support is tantamount to killing the child, particularly if the child is a newborn. In this case there is not even a fig leaf of moral ambiguity to hide behind. We are simply authorizing infanticide.
This brings us to the third solution. In some ways this has some of the same problems as abortion, it essentially externalizes the costs of fornication on to those who did not consent to the sexual transaction. In the case of abortion it is the unborn fetus, in this case it is society. Of course, to the extent that society has intervened to insure that the child has not by this point been aborted, society has already borne the costs of sustaining a legal regime to prevent that from happening. Perhaps we can view society as also being obligated to bear extra costs to prevent the injustice of the second solution.
At this point there are some interesting questions. If we actually try to seriously implement the first solution (that is we keep it from simply sliding into the second solution), I think it is fair to say that given the current state of our legal technology that female fornicators will bear more of the costs of child-raising than will male fornicators. This is unjust. On the other hand, there is a sense in which it is unjust to require society to bear the costs for both, as in the third solution. My sense is that on this narrow issue, the consent argument starts having a bit more bite. As between two parties, let the cost lie with the party that voluntarily entered the transaction. I suppose that reasonable people could come out the other way, but I would want to see the arguments. This of course does not consider what would be best for the child. Here I don’t know. A life living with coerced parents or a life lived in a state orphanage. I would want the orphanage to be nice. Of course in the third solution we could limit the alienability of parental duties. For example, allow parents to give up the duty to provide care and shelter but continue to require that they provide financial support. One advantage of this approach is that it is likely to equalize the inefficiencies of the legal technology between the sexes.
Another issue is whether the absence of a viable version of the third solution would allow the injustice of the first solution to justify easing prohibitions on abortion. I don’t think so. As I stated above, it is not clear to me that these injustices would justify requiring society in the aggregate to bear the costs of fornication to which it did not consent. I certainly don’t think that the injustice of the legal machinery would justify concentrating all of the costs on to the fetus.
A concluding thought: My intuition about these things changes when we are no longer talking about fornication, but rape. At this point the absence of consent does more work for me, and I am willing to entertain the possibility of permitting early abortions (but not late term abortions). However, this suggests that there are limits to the moral force that I am willing to assign to the ambiguity of moral status of the fetus. Perhaps this shows that my indifference to arguments for abortion based on imperfections in the legal machinery is misplaced. But I don’t think so.