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Notes
For the sake of simplicity, I use the term “animal” to refer to nonhuman animals in this paper. In addition, I will use the term “fetus” to refer to all unborn human beings. While I recognize that an unborn human being does not become a fetus until the second trimester (U.S. National Library of Medicine 1997), in the standard abortion discussion, “fetus” is predominantly used as a blanket reference to all unborn humans. In keeping with the common language, I will do the same.
It might be noted that Francione’s primary argument is legalistic in nature. Thus one might argue that Francione only makes the claim that the animal rights theory is not committed to a legal policy that outlaws abortion. However, his essay also indicates that he thinks that an animal rights theory does not have implications for even the moral discussion concerning abortion. As he puts it, “abortion, however, presents us with a completely unique moral issue” and “this feature of abortion makes it very different from the normal moral conflicts that we may try to resolve by recourse to moral theories concerning our treatment of animals” (Francione 1995, 154).
Note that there are a number of responses to Francione’s legal argument. See Callahan (1986), Jenni (1994), and Wolf-Devine (1989), who argue that a legal policy that is pro-choice is at odds with the feminist agenda. Specifically, they argue that, since abortion involves continually discounting the interests of oppressed groups (i.e., fetuses), abortion is a patriarchal response to unwanted pregnancies.
While a relational account would also entail that a man has positive duties to assist both his child and also a woman he impregnates, for the purpose of this paper, I focus only on women since I am concerned specifically with the duty to assist a sentient fetus by keeping it alive during pregnancy. Since terminating or continuing the pregnancy is ultimately the woman’s decision, the relationship of dependency which I am concerned with in this discussion is ultimately a result of the woman’s act (or omission). This will become clear later on in the discussion.
Note that Regan (1983, 2001) argues that the criterion of moral status is being a “subject-of-a-life” which involves the possession of higher cognitive faculties beyond mere sentience. Although his account of animal rights is arguably one of the most influential animal rights theories, he stands as a minority in embracing a seemingly demanding account of moral status, which many animals certainly cannot satisfy.
Note that some ethicists might also hold that non-sentient beings, such as great works of art or natural objects like the Grand Canyon, might have aesthetic value or other kinds of worth (Rollin 1981, 140).
Granting special moral consideration to humans simply because they are members of the species Homo sapiens is referred to as speciesism (See Francione 2000, xxviii-xxix). A common justification for valuing the human species over animals is the claim that human beings are rational, while animals are not. Such a defense is rejected in respect to the obvious fact that not all human beings are rational; infants and the severely mentally disabled are examples of human beings who are not rational. Human beings, then, are entitled to moral consideration not because they are “rational,” but because they have the capacity to experience pain and suffering. It is then concluded that there is no morally relevant difference between humans and animals since animals also have the capacity to experience pain and suffering.
In his article on animal rights and abortion, Francione (1995) spends considerable time demonstrating how neither Regan’s (1983) nor Singer’s (1975) account of animal ethics entails an anti-abortion position, yet he does not consider that his own theory might be used to draw moral conclusions regarding abortion.
Warren (1987, 1997, 2001) also puts forth a version of a “sentience based rights position.” However, Warren presents a “sliding scale of moral status,” which maintains that there are varying degrees of moral status depending on an individual’s capacities. According to this view, a fully developed person has greater moral standing than an animal or fetus. The view I am concerned with is one that presents an egalitarian view of moral status, like Francione or Regan’s, which maintains that moral status does not come in degrees.
This notion of prima facie rights stems from Ross’ (1930) discussion of prima facie duties, which he describes as obligations we have other things equal unless they are overridden or trumped by another duty. A prima facie duty has at least one right-making feature, but that feature does not entail that it is an absolute duty: a duty that must always be performed and can never be overridden. While not all prima facie duties correspond to a rights claim, according to rights theorists, certain duties, such as negative duties of noninterference, have a correlative rights claim. So, if there is a prima facie duty not to harm individuals with inherent worth, there is a corresponding prima facie right such as the right not to be harmed. Yet, if the duty to not harm others can be overridden, it follows that the prima facie right can also be overridden.
Important to keep in mind is that whether cortical structures are even necessary for consciousness has been the subject of doubt in recent discussions (see Derbyshire 2010; Anand 2007; Merker 2007). Specifically, Merker argues that there is evidence that children born without a cortex are conscious. This is said to suggest that brain activity that occurs outside of the cortex might give rise to consciousness.
Rose (2002) does acknowledge that fish react to noxious stimuli; however, he explains this as nociception without conscious awareness of pain.
While one might admit that it makes sense to attribute sentience to a cephalopod because its nervous system is complex and developed, it might be argued that the nervous system of a young fetus is underdeveloped, and thus attributing sentience to a young fetus remains problematic. Yet, an important point remains: animal ethicists like Francione admit that consciousness can be carried on nervous systems which are different from that of fully developed humans.
Note that Rose (2002) makes a similar argument about fish. Rose argues that, while most fish have nociceptors (pain receptors), fish do not have the neurological hardwire required for consciousness. Thus he concludes that, although fish can undergo an unconscious process referred to as nociception, they cannot actually experience pain. Also note that fetuses start forming pain receptors (nociceptors) at eight weeks, thus the basic neurological structures of an eight week year old fetus will look very similar, if not more complex, than that of a fish (Anand 1987).
Erring on the side of caution might pose a problem when resources are scarce or in cases of a conflict between rights where erring on the side of caution might entail that a genuine right is overridden for the sake of a possible right. So, in the case of crustaceans, it is unproblematic to err on the side of caution in order to grant them rights since the possible rights of these beings are not in direct conflict with the genuine rights of a person. However, if we are to err on the side of caution in the case of an eight week year old fetus, this becomes problematic because, in cases of unwanted pregnancy, the possible rights of the fetus would be in direct conflict with a woman’s genuine rights. Yet, like Moller (2011), I argue that the moral risk should be taken seriously and furthermore should make some difference in our moral decision making. In addition, I will later argue that, in the abortion discussion, the conflict of rights between the fetus and the woman does not emerge until the eighth week gestation, providing a woman with an eight week window to terminate an unwanted pregnancy, thereby allowing her to avoid a possible scenario where she might be forced to balance her genuine rights against the possible rights of a fetus. Thus, in this discussion, erring on the side of caution does not require the woman to forfeit her genuine right. Rather, erring on the side of caution, in this discussion, requires a woman who is pregnant with an unwanted fetus to exercise a significantly high standard of responsibility and to seek an early abortion.
It might be argued that “erring on the side of caution” entails absurd conclusions such as the following: plants should be treated as sentient since they often exhibit pain behavior, such as “screaming” when cut. Yet, plants lack any neurological or physiological structures that are associated with sentience. Furthermore, there is no scientific evidence that plants have any sort of mental life. Thus, when erring on the side of caution, the evidence we accept for sentience should be more than just pain behavior or reactions to external stimuli. The pain behavior must be accompanied by some (perhaps underdeveloped) neurological or physiological structure.
Even if the arguments from caution and similarity are rejected in regard to granting a right to life to a fetus of eight weeks gestation, there is substantial evidence and widespread consensus in the scientific community that mid-second trimester fetuses are certainly conscious and thus, without question, these fetuses must be said to have a right to life according to Francione’s animal rights theory. Although fewer abortions occur this late into pregnancy, they still merit our moral attention. Thus, the following discussion still remains morally important even if a fetus cannot be said to acquire a right to life until the mid-second trimester.
Certain anti-abortion positions allow for exceptions, such as when the life of the woman is at risk. For example, see Noonan (1970).
Although the abortion discussion has advanced since Thomson’s (1971) seminal paper, I do not survey the recent literature in abortion because the goal of this article is to consider the viability of using an animal ethic to draw a morally consistent conclusion regarding abortion. This can be done by focusing exclusively on Thomson’s article regarding when a woman ought to assist a fetus.
Note that although Palmer focuses on actions more so than omissions, her account seems to imply that moral agents are responsible for omissions. For instance, animal ethicists typically claim that one who omits to spay her cat would be responsible for the kittens who come into existence if the cat were to become pregnant
One might argue that not all women have the resources and means of visiting an abortion clinic within the first eight weeks of gestation. However, this account would demand that a woman be assisted in getting an abortion within the first eight weeks of her pregnancy. For example, health care providers should readily offer abortions for women in their first eight weeks gestation and abortion services for women in their first eight weeks of pregnancy should be provided as part of routine health care. If a woman desires to get an abortion, yet does not have the means to in the first eight weeks of pregnancy, it might be argued that the omission is involuntary and thus the woman is not morally responsible for the relationship with the sentient fetus.
By standard cases of pregnancy, I mean cases where a woman knows, or should have known, that she is pregnant. This suggests that women who are significantly cognitively impaired, as well as many minors, might be too naïve to know that they are pregnant prior to eight weeks gestation. These women, then, are not morally responsible for the relationship with the sentient fetus.
One might question whether a woman commits a moral wrong by aborting an unwanted fetus in a circumstance where she does not become aware that she is pregnant until after eight weeks gestation. Answering this question requires an inquiry into the specific details surrounding the agent’s ignorance and an in-depth discussion about culpable ignorance which, due to space constraints, this article cannot sufficiently address. Since the goal of this article is to illustrate that the animal rights position has greater implications for abortion than Francione admits, it is not necessary that I address every pregnancy scenario. Thus, I will not attempt to distinguish between cases where a woman is responsible for her ignorance and when she is not culpable for her ignorance, but I will assume that not every instance of ignorance constitutes an excuse and that there are cases where a woman should have known that she was pregnant and thus is responsible for the relationship that develops with the fetus after eight weeks. Under what conditions we can blame an agent for her ignorance is the subject of discussion in Rosen (2003), Zimmerman (1997), Harman (2011), Smith (1983), and Guerrero (2007).
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Abbate, C.E. Adventures in Moral Consistency: How to Develop an Abortion Ethic through an Animal Rights Framework. Ethic Theory Moral Prac 18, 145–164 (2015). https://doi.org/10.1007/s10677-014-9515-y
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DOI: https://doi.org/10.1007/s10677-014-9515-y