In Beyond the Abortion Wars Charles C. Camosy has written a refreshingly open-minded book about abortion. Camosy views the abortion issue as one on which neither the “extreme” pro-life view (that all abortion should be illegal) nor the “extreme” pro-choice view (that all abortion should be legal) ought to prevail. Despite being an adherent of the latter “extreme” view, I would say that a middle position on the morality of abortion is sensible. I would be horrified to live in a society in which all abortion was illegal, and I would be similarly (if not equally) horrified to live in a society in which people believed that late-term abortion raised no moral concerns. I regard the dividing line between the abortions that raise few moral concerns and those that raise serious moral concerns as sentience.
Sentience is the capacity to experience feelings such as pain and suffering. When a fetus has sentience, she has something that entitles her to moral consideration. I believe Camosy has respect for this moral line (although he would prohibit more abortions than are implicated by it), given his highlighting of the period when a fetus can respond to external stimuli, so from his perspective as well as mine, the important questions include (1) whether nonsentient fetuses should also receive moral consideration and (2) whether the law ought to reflect the moral consideration to which sentient fetuses are entitled (44). I would also attend to the implications of sentience for the rights of nonhuman animals, creatures who tend to be disregarded by the people whose responses to polls about abortion Camosy uses as signals for how we might think about the legal and moral issues.
Nonsentient Fetuses and Moral Consideration
In talking about the polls that reflect public opinion, Camosy approvingly cites the view that abortions in the second trimester ought to be illegal (28–29). Because fetuses are not sentient yet at twelve or thirteen weeks, Camosy's comfort with such early prohibitions suggests that he does not tie abortion's immorality to sentience.Footnote 15 Indeed, Camosy says expressly that “it is always wrong to aim at the death of an innocent person,” seemingly including early fetuses (64).
I disagree. Killing any being that resembles a human baby, regardless of whether it is sentient, might desensitize people to life, and this is one argument for prohibiting or discouraging abortion prior to sentience. However, only when “someone” is harmed—someone with interests in avoiding pain and death—should we attempt to interfere with fundamental freedoms. The risk of desensitization alone does not justify serious infringements on liberty. For example, offensive speech and lies can desensitize people to life (and to many other worthy values), but we properly err on the side of freedom of speech until someone is concretely and actually harmed. We ought to do the same in the case of reproductive freedom and thus abortion.
Camosy also, however, favorably quotes Frances Kissling, a pro-choice activist who expresses sentiments that more closely mirror my own: “We must end the fiction that an abortion at 26 weeks is no different from one at six weeks” (39). This statement gestures toward sentience as a marker of moral consideration for the fetus. Camosy also speaks respectfully of laws that would ban “pain capable abortions,” a more direct indication of sentience as the morally relevant moment for at least some of his audience.Footnote 16
I cannot pretend, however, that Camosy embraces the moral line I would draw at sentience. He also emphasizes that the reason for a woman's decision to have an abortion matters a great deal to him, and he would characterize the “good reasons” (like product-of-rape pregnancy) as sometimes allowing for a “failure to aid” abortion (including RU-486, induction, C-section, or a hysterectomy) (146–48), and more rarely allowing for direct abortion, where the fetus is deliberately killed (e.g., to protect the life of the mother) (69).Footnote 17 He believes that those abortions ought to be lawful (151–52),Footnote 18 while abortions undertaken for other reasons (including relationship issues with the father of the pregnancy) should not be (18; see also 78). He would leave alone procedures involving very early embryos, on the theory that they may not yet qualify as human organisms (152–53).Footnote 19
Qualifying as a “human” turns out to matter a great deal to Camosy. Relying on others’ and his own unreflective intuitions, this time without polling data, Camosy comes to dismiss the sentience criterion I favor (or any capacity criterion that would distinguish an early from a late fetus), because such a criterion would include nonhuman animals as worthy of moral personhood. He says, “Suppose you think that a prenatal child becomes a person with a right to life when she can feel pain. Are you willing to say that any being that feels pain is a person with a right to life? Dogs? Pigs? Chickens? Rats and mice?” (48). Making the criterion more demanding, though, might exclude infants, so Camosy ultimately rejects what ought to be a straightforwardly self-commending trait-based approach to moral personhood, and he says that “the problem with the ‘Trait X’ approach to moral status and personhood is that you are forced into two strange claims that almost no one wishes to accept [i.e., including animals or excluding infants]” (48–49). He then refers dismissively to “some hardcore animal-rights activists” (49), adding an ad hominem component to the speciesism of rejecting the trait- or capacities-based approach to defining the moral value of the fetus. But what, after all, distinguishes the twenty-six-week fetus from the six-week fetus, if not capacities such as sentience? And what, other than an undefended bias in favor of humans, would tell Camosy that a nonhuman animal with the same capacities as a twenty-six-week fetus should not benefit from the right not to be killed or harmed—i.e., moral consideration?
Camosy's answer to the latter question is “potential,” because the “actual” traits of nonhuman animals and fetuses overlap in ways that make him regard such traits as morally irrelevant to personhood. Human embryos, he suggests, have the potential to be all of the things that distinguish humans from other animals (including, according to him, the ability to create and appreciate art and to create and pursue a life of meaning). Such potential, he argues, is different from the potential of sperm or somatic cells (which can also be turned into embryos and ultimately people) because sperm and somatic cells would have to undergo a “nature-changing event” to become a human being, while an embryo would not (because he views the potential as all in there already) (51).
This division between different kinds of potential rests on a familiar Aristotelian and antifeminist argument that treats pregnancy as a minor factor in the transformation of a zygote into a human baby. Camosy, despite his support for feminist legal measures elsewhere in the book (such as pay equity and pregnancy rights) (140–42), uses language of this sort to describe what he means: “They [things that are already what they have the potential to become, such as an embryo] only require energy and the right environment to express their potential to become the kind of thing they already are” (51–52).Footnote 20 Camosy is thus prepared to use the trait-based approach, but because he does not want animals covered, he uses it in a contrived fashion that treats a woman's uterus as a kind of self-sustaining garden in which an embryo or fetus can become what it already is so that embryos may be superior to full-grown cows. This is not a persuasive argument (if one truly attends to the differences between an embryo and a baby) but instead works to deny the importance of traits that belong to the fetus at its various stages (which is why an early termination is less weighty than an abortion at eight months). Camosy focuses unnecessarily on the later human being that the embryo or fetus may or may not become rather than on the fetus or embryo that it/he/she is right now. The trait approach is the right approach, then, but Camosy applies it to the wrong period of time (through the vehicle of “potential”). His motivation—for his choice of traits as for his choice of timing—is very clear: he “would pick … traits … [that] include both newborn and mentally disabled human beings, but…exclude beings such as chickens and rats” (56). This post hoc reasoning is disappointing, because Camosy's concern for the most vulnerable among us could profitably extend to both fetuses and nonhuman animals.
In addition to considering fetal potential important to intuitions about the morality of abortion, Camosy believes (as do people polled) that a woman's reasons for wanting an abortion can determine the morality (and therefore, he would propose, the proper legality) of her decision to terminate. Rape, incest, and life of the mother are good reasons, while other reasons are less compelling.
I would, in contrast, not focus on a woman's reasons for having an abortion in deciding whether to protect her right.Footnote 21 Once she decides she does not want to be pregnant (whatever her reason), compelling her to continue her pregnancy against her will represents an unwarranted bodily intrusion. By analogy, consider a woman who refuses to have sex with a man for a bad reason (his race, perhaps). If he forces her to have sex, she is just as much a rape victim as she would be if she had had a better reason for saying no. Indeed, to protect herself from her would-be rapist, she could even use deadly force. Likewise, the unhappily pregnant woman with a bad reason for wanting to terminate is just as much a victim of an unwanted physically intrusive experience as an unhappily pregnant woman with a good reason for terminating. And consensual sex, which merely risks a pregnancy, does not constitute “consent” to a nine-month internal occupation by an unwanted organism, though Camosy wants to treat it as though it does (77).Footnote 22 Treating conduct not intended as consent as legal consent is sometimes termed “constructive consent,” but for an intrusion as serious as pregnancy, actual rather than constructive consent is warranted.
Views vs. Reality
Among the most interesting facts that we learn from the early part of Camosy's book is the enormous disparity between people's expressed views and their behavior. As Camosy notes, many women—seemingly more than men—have developed increasingly pro-life sentiments and regard most abortions as immoral (38). Yet the rate of abortion remains quite high. The disparity between people's views of right and wrong and their behavior suggests that perhaps their views are not precisely what people imagine they are—people are willing to judge conduct from a distance that they are then prepared to engage in up close when confronted with the realities of an unwanted pregnancy. Likewise, Camosy deserves credit for acknowledging that both the men in women's lives and structural factors create pressure upon women to terminate their pregnancies (118–19). He suggests, and I agree, that anyone who hopes to move women away from abortions would do well to try to reduce that structural pressure as well (140–42).
The Law
Camosy observes that “most pro-choice people…often hold pro-choice views, not because they don't respect life, but because they don't think the law can protect the fetus without seriously threatening the rights of the mother” (11). This is where he will find me. At least postsentience, I would much prefer that a woman did not terminate her pregnancy absent some very good reason for doing so (such as a serious health risk to herself). Yet I do not think the law can protect sentient fetuses without compelling a woman who does not want to be carrying a pregnancy to endure an extreme bodily intrusion for an extended period of time. Just as Camosy would try to remove structural barriers to women choosing to remain pregnant, I would also want to remove the barriers to women terminating their pregnancies earlier on, during the first trimester if possible (when, in fact, most terminations already take place) (36). Early terminations could help prevent the later, more morally serious ones.
Camosy is likely right that many women would want to remain pregnant if the men (or others) in their lives were not pressuring them to terminate or if their economic or other structurally driven circumstances did not coerce them in this way. But the solution, I think, is to lighten up on the pressure and then allow women to do what they will do, even if—as Camosy fears—this means there will still be many abortions. I would not prohibit an option because women choose it under structural constraints. Indeed, the more liberating strategy is to create a world in which more women want to take their pregnancies to term and are also better able to avoid pregnancy to the extent that they do not want a child. Few people are “pro-abortion.” Some of us, however, are “pro-choice,” and we are that way so long as women feel, for whatever reason, that they do not wish to endure a pregnancy in which they find themselves caught.
