International Catholic University
If the position developed in the preceding lecture is correct, then abortion is an act which takes the life of a living developing human being, and hence it is a kind of homicide, that is, the killing of an innocent human being. This position is not without opposition. And the opposing views are, at present, controlling in our culture. Some opponents frame their arguments in terms of compassion -- compassion for woman, for families, and for children with disabilities. And there is no denying that these arguments deeply touch the well springs of human emotion. But compassion unchecked by reason is a dangerous guide. Others frame their position in terms of women's rights. Others develop their position in terms of a distinction between human persons and human non-persons and, by placing the conceptus in the human non-person category, its destruction is defended. Still others make autonomy the sole criterion in choice. And finally some embed their arguments in a contemporary postmodern philosophical position that is marked by an extreme and elite western individualism and that lacks an adequate epistemology that results in an incomplete metaphysics which yields a defective ethics. Responses to the claims of feminism, the claims of autonomy, and the claims that arise from within the philosophical position developed will be framed from within the position developed in the first lecture. Following the general response, specific responses will be made to significant arguments that have been presented in support of the discontinuity of development claims and the resultant distinction of the human person from human non-person.
First feminism: In the midst of this second moment of the feminist movement, some feminists began to advance the claim of a right to abortion as a fundamental right -- a necessary right so that women might have absolute control over their reproductive finality and, hence, absolute control over their lives. These feminists articulated the defense of the absolute right to abortion in the following constellation of ideas: (1) the right of her control over her body; (2) the necessity of autonomy and choice in the attainment of personal responsibility; (3) the moral right of women to full social equality; (4) the right of women to self-determination; and (5) the very American sounding "freedom to choose," and finally (6) a restriction -- no man has a right to enter the discussion.
All of the claims articulated here are framed in the language of absolute claims and violate the claims of ordered liberty that limits our rights by the rights-claims of others. To the claim of right over one's body, there are two responses appropriate here. The first has to do with the claim of absolute right over one's body; the second acknowledges that there are two bodies involved in every abortion decision. In regard to the latter, the human being developing within the woman has its own body which is genetically distinct from the body of the woman within whom it is developing and upon whom it is dependent to sustain it in its normal environment. The right of the woman to her body is limited by the right of the nascent human being to the integrity of its body. Furthermore, the appropriate human response to human dependence is care, not power to destroy. Hans Jonas, one of the pioneers in modern medical ethics, suggested that the appropriate human response to total dependence is total care.
In regard to the former, the right over one's body is a limited right as recognized in law, in medicine, and in the religious tradition that frames these lectures. In the law, the right to control one's body is limited by the interests of the state in exercising its parens patriae obligations. Among the most significant of the parens patriae obligations are the preservation of life and the protection of the integrity of the medical profession. The famous and often quoted words of Mr. Justice Cardoza are frequently rendered in support of an absolute right to one's body. Cardoza wrote in 1891 "No right is held more sacred or is more carefully guarded, than the common law right, the right of every individual to the possession and control of his own person, free of all restraint or interference from others, unless by clear and unquestionable authority of law". Note carefully, the "authority of law." Those who claim the authority of Cardoza more often than not disregard the authority of law and the derivative authority of ethics of the medical profession. The range of application of the authority of law may be limited, nonetheless the authority remains. The law internal to the practice of medicine limits the ministrations of medicine between the proscription "do no harm" and the prescription to use the art of medicine to heal. Abortion performed where there is no medical indication violates both the proscription and the prescription.
Within the religious tradition that informs these lectures there can be no claims to absolute autonomy. Human beings are creatures who are radically dependent on God for their existence and the continuation of their existence. The patience of God with God's creatures should serve as the paradigm for the patience of creatures, including the patience of pregnant women, with each other. The religious tradition recognizes the body as gift and temple of the Holy Spirit. The gift is to be used in the service of human life and with reverence for the author of human life.
The rights of woman, claimed as interests that the government should protect, ought to be grounded in an adequate account the nature of woman as distinguished from the nature of men. While there are certain equalities of man as human and woman as human beings that the law ought to protect, there are certain material differences -- which have their source in chromosomal differences and in hormonal differences and in subsequent differences in anatomical structure and function -- of man as male and woman as female. As a consequence of these material differences women, as a matter of fact, bear children and give birth and men do not. The law ought to be able to recognize this material difference, to fashion appropriate protections for women in the exercise of this role. In the failure to make appropriate distinctions, the law is susceptible to do foolish or harmful things that diminish respect for the law and interfere with the good that the law ought to accomplish.
In regard to the claim of absolute autonomy, the postmodern period has indeed witnessed both the expansion of the notion and the expansion of its role in medical ethical decision-making. Some feminists have embraced the absolutization of autonomy. The philosophical notion of autonomy has been torn from its position as an integral part of morality and has become the whole of morality. The philosophical notion of autonomy traces its parentage to Kant's search for the axiom of morality. Within Kant's moral theory it functions to provide the account of the experience of the rational creature of the categorical imperative as duty, that is, the absolute command of practical reason. Because the command of duty comes from the self as legislating morality, rather than another, it is experienced as self-rule -- autonomy -- rather than other rule -- heteronomy. It is the will as practical reason issuing commands that are capable of universalizaton and commands that are compatible with membership in the possible Kingdom of Ends. Kant says in his account of the will of every rational creature as a will giving universal law, "[t]hus the principle of every will as a will giving universal laws in all its maxims is very well adapted to being a categorical imperative, provided it is otherwise correct" [ital. added] (206). In the expansion of this notion Kant says, "[t]he concept of each rational being as a being must regard itself as giving universal law through the maxims of its will, so that it may judge itself and its actions from this standpoint leads to a very fruitful concept, namely that of a realm of ends . . . a systematic union of different rational beings through common laws" (207). Thus, for Kant autonomy is not my right to do as I please, but rather my obligation to do what I ought. And I ought to do those things which are capable of being universalized and those things which treat others as ends and never as means only. The nascent human being as a possible member of a possible kingdom of ends exercises a limiting function over the autonomous claims of the mother.
The claim, which demands the removal of all men from the abortion decision, at least in the case of pregnancy resulting from consensual acts of men and women, violates the rights of men as full participants in the community and as full participants in the lives of children. This seems erroneous and counterproductive in a feminism that desires equal rights and equal responsibilities.
Postmodern Philosophy: The present moment in the history of philosophy and of culture at least in the English-speaking western world has been described as post-religious (particularly as post-Judeo-Christian), post-scientific, and post-humanist. This position exercises incredible influence on morality, medicine, public policy and law as well as the intersection of these disciplines. The central notions in this postmodern philosophy are: (1) a content-full secular morality cannot be discovered; (2) we are moral strangers; (3) peaceful negotiation is the only possible way to secure a general moral framework; and (4) only human beings who are autonomous, that is, fully developed, rational, and self-conscious are persons, that is: (a) personhood is a matter of accomplishment; (b) only persons are bearers of rights in the strict sense; and (c) hence, human non-persons are vulnerable.
In brief, the responses to (1), (2), and (3) of this postmodern position are: while a content-full secular morality cannot be discovered, reason is not paralyzed. Reason discovers some things and reason constructs others. What reason discovers allows for the affirmation of an understanding that is supported by the preponderance of evidence. Reason is appropriately constrained in constructing by that which reason discovers. There are specific markers in the human community that can be discovered by reason that place limits on and give direction to moral theory. Two related markers are (1) human beings, although retaining their individuality, live as related beings and from these relationships concrete duties arise and roles are defined and (2) human beings begin their lives in radical dependency; live much of their lives in varying degrees of dependency; achieve autonomy, if at all, relatively late in life for a limited time; and return to endure dependence in their decline. Hence, human beings are neither absolute moral strangers nor absolutely autonomous individuals. Inasmuch as human beings live in concrete relationships to each other, concrete duties arise that are not subject to negotiation. Human relations vary, but the individuals who make up these relationships do not exhaust their reality in these relationships. Some of the more obvious relationships are those of husband and wife, mother and fetus, parent(s) and family, family and community, physician and patient, professor and student, etc. It is existence as related beings that is the source of our traditions of community and hospitality, of mutual respect, and of liberty as ordered. These relationships constitute the links in the web of sociality. This understanding of human life as woven in relationships gives direction, even substance, to the negotiations in and for a peaceable community.
Pregnancy provides an example of human lives embedded in relationship. It is a temporary relationship between two whole human beings, one immature and the other more mature. This temporary physical union is also a moral union. Neither of the human beings who constitute the relationship is determined to accomplish the totality of existence within this relationship. The woman is a relatively autonomous being. Her life is characterized by a set of ends that extend beyond pregnancy. For the duration of the pregnancy the fetus is a radically dependent being. While the growth and development of the fetus is intrinsically directed, the continued existence of the fetus is possible only within the nurturing environment of the body of the woman. The accomplishment of the ends of the fetus which lie outside the pregnancy requires the cooperation of the woman to allow it to endure through the pregnancy. The care that a woman exercises toward this temporally radically dependent being might serve as the paradigm of care for building a peaceful society . . . a society marked by a people who love each other.
Ontological Status of the conceptus: Some who direct their argument to the ontological status of the conceptus maintain that the conceptus is not fully human. Their arguments are usually framed in terms of discontinuity between human biological life -- the human non-person -- and human personal life -- the human person. Those who attempt such a separation frame a variety of arguments. Among the most popular, i.e. most frequently recurring arguments, are: the legal notion of person, brain death criteria, ordinary use of referential language, the consideration of potentiality, the distinction between material continuity and substantial discontinuity, vulnerability at various stages of development, totipotentiality, twinning, and ensoulment.
The legal notion of person as it applies in the abortion issue is a matter of the use of a juristic concept to designate a bearer of rights, that is, rights as interests that have governmental protection. Until recently the application of the title person to human beings, and consequently their protection in the law, has been an expansive history. Over time various classes of human beings, for example African American slaves, American Indians, women, have been included within the ambit of the concept and have been accorded rights before the law. A distinctive feature of rights in the juristic sense is that while individuals are bearers of rights, the law protects the exercise of rights at various stages. Before the law, rights are a function of the capacities of human beings. For example, the right to consummate a contract receives legal approbation when a human being has the present capacity to exercise that right. The right to marry and establish a family is accorded legal protection when a human being has the present capacity to exercise that right. Since a human being becomes and lives at syngamy, its right to life should be accorded legal protection at that time.
In regard to the use of brain death criteria, it is important to note that in the medical notion of brain death, and the ensuing disjunction between personal life and biological life, the potentiality for the activities of the higher level nervous system no longer exists in the being who is designated dead by such criteria. In the conceptus, on the other hand, there exists from the beginning the remote potentiality for the activities of the higher central nervous system. The remote potentiality is the source and the necessary condition for the emergence of the proximate potentiality which is the source of the here and now higher brain activities.
It is noted that in the ordinary use of language, the conceptus is referred to as "it" and because of this use, the social status and the ontological status of the conceptus is diminished. The denotation of the conceptus as "it," rather than as "she" or "he," is a defect on the part of the observer rather than a defect on the part of the conceptus. The ordinary observer may not know the sex of the conceptus, but the trained observer -- the cell biologist, the geneticist, the embryologist -- can make that determination. Some who argue discontinuity use the language of potentiality and probability to frame their arguments and to dismiss the conceptus from the category of personhood. One such argument describes the conceptus as "an animal with great promise of becoming more than just an animal," that is, a human person. The appropriate response is that the conceptus by virtue of its active natural potency, which is a guarantee of its future development, will develop itself (tendency) into the adult human (constitution). That guarantee, which is present from the beginning, is more certain than a promise.
Another argument makes a distinction between concrete potentiality for human activities and abstract potentiality for human activities. The conceptus is described as possessing abstract potentiality and is contrasted with the sleeping person who possesses concrete potentiality. This is a strange distinction. On the one hand it seems to embody a distinction used in medical practice in such problems as those that arise in the allocation of scarce medical resources when a decision has to be made between the patient that the physician knows and has treated and the similarly situated patient whom the physician does not know and has not treated. The physician perceives the former patient as concrete and the latter patient as abstract. On the other hand, the concrete/abstract distinction seems rooted in the person/personal consciousness distinction, that is, one is a person so long as one is conscious of oneself. From the perspective of the first distinction, the reality of each patient is the same; the difference lies in the relation of the physician to each of the patients. From the perspective of the second distinction, the person is reduced to personal consciousness. Personal consciousness is an attribute of a person; it is not the whole person. Human beings have the capacity to be conscious; they cannot be reduced to consciousness. Human beings are (1) sometimes conscious and aware of self as subject; (2) sometimes conscious with the awareness of self as object; (3) sometimes in act with a potentiality for consciousness that is remote or proximate as in the conceptus, or the person under anesthesia, or the person asleep; and (4) sometimes in action but so immersed in a problem or an activity or an encounter that the awareness of self is lost. These different states of consciousness are states of one being who continues throughout these states.
In the discussion of probability as it relates to the possibility of the conceptus's being born, the claim has been made that because only forty percent of human zygotes survive to become fully developed self-conscious rational human beings, it is more appropriate to consider the human zygote a 0.4 probable person. Here there is confusion of predictions of the future with descriptions of present states of existence and a failure to distinguish classical laws from statistical laws. Classical laws describe regularities -- a one to one causal relationship -- other things being equal. There is the anticipation of invariance. The example of a classical law in operation is syngamy -- the union of the egg and the sperm and the restoration of the diploid number of chromosomes marks the beginning of a new life. Statistical laws, on the other hand, relate to probabilities, that is, assessments based on relative actual frequencies. The statement that only forty percent of fertilized ova survive to be born may be used to formulate a probability statement, that is, a statistical assessment of the likelihood that a fertilized ovum will survive to be born. It says nothing about the nature of the surviving being. What might be concluded from this probability statement is that existence is precarious at this period in the life of a human being. At the other end of the continuum of life, it may be the case that only forty percent of those human beings who reach the age of seventy-five survive to be eighty. This does not make those who are now seventy-five only forty percent persons. It simply means that those who have reached the age of seventy-five are rather vulnerable in a statistical sense.
Finally three particular and somewhat related issues are brought forward to cast doubt on the claim that the conceptus is a continuous, individual developing human being. These are the lack of unity of organization as evidenced by general appearance and as evidenced by the specific time limited capacity of totipotentiality of the blastomeres, the possibility of monozygous twinning, and the controversy over theories of ensoulment.
In regard to the unity of organization, this so called aggregate of loosely associated blastomeres has an immediately apparent unity as an individual organism in its containment within the zona pellucida and within the corona radiata. Each of which has specific functions in the survival of the new individual. In addition, the individual blastomeres, even at this earliest stage, while giving a superficial appearance of loose association, are in constant and intense interaction as the organism, through its genetically determined internal dynamism, continues its self-development. As early as the eight-cell stage the process of the compaction of the blastomeres takes place. This compaction has at least two functions. The first function is to protects the conceptus -- here in the preimplantation embryonic stage -- from the influence of outside fluids which might be damaging to its integrity. The second function is to couple the blastomeres to permit ion exchange and molecular exchange from blastomere to the next.
The blastomeres do indeed have a time-limited capacity for totipotentiality. Totipotentiality is the ability of a cell to be the source of an entire organism. Rather than considering totipotentiality as a suggestion of lack of individuality, it might be considered a particular strength of the human being at this particularly vulnerable stage of development. Because this stage of human development is particularly vulnerable, each of the blastomeres has the capacity to repair, by means of the biological process designated regulation, damage to the individual developing human being. The individual cells at this early stage of development have a prospective potency, that is, the capacity to form many types of cells or a new organism, which is greater than its prospective fate, that is, the capacity to form the types of cells it normally does if in the course of development it is not disturbed. (Patten, 173). After this stage in human development, there is a subsequent decline in human potentialities. This is true of human development in general. As certain potentialities are actualized, others are lost.
As to the lack of unity as evidenced by the occasional occurrence of monozygous twinning, it is appropriate to indicate (1) that the occurrence is infrequent and (2) that very little is know about the etiology of the process. Monozygous or identical twins occur in approximately 0.025% of human births. Monozygous twinning may be caused by an environmental change, a precipitous drop in oxygen level has been suggested, or it may be caused by genetic mutation, a mutation on the chromosome during mitosis has been suggested. Monozygous twinning understood as a type of regulation process, may simply be a particular type of totipotentiality called into operation on the occasion of significant damage to the developing entity. Both the infrequency of the occurrence and its possible accidental occurrence suggest that monozygous twinning is a departure from the norm.
Theories of ensoulment have been brought forth to add to the mix of issues in the determination of when human life begins and whether or not human life is continuous from syngamy forward. The two most important theories are that of immediate animation and immediate ensoulment and that of immediate animation and delayed ensoulment. The proof of the adequacy of the theory of ensoulment must be its conformity to the correct understanding of the development of the being. Ensoulment theories have been conceived differently in different historical periods. In ancient and medieval philosophy they were tied to scientific theories of the origin of human life and to concerns about the proper disposition and organization of matter to receive the soul. In the contemporary era, they are framed in response to the possibility of monozygous twinning, although the immediate animation / delayed ensoulment theory continues to receive some attention.
Inasmuch as monozygous twinning appears to be an aberration, rather than the norm, considerations of its ensoulment may also depart from the norm.
Theories of immediate animation and immediate ensoulment or immediate animation and delayed ensoulment are tied to the acceptance of a particular biological understanding of the development of human life. In the period in which preformation theories, such as the homunculus, held biological prominence, immediate animation and immediate ensoulment was the prevailing view. The human being, the homunculus, was completely present in the seed. When the seed was sown in appropriate matter the new human being simply grew bigger. Animation and ensoulment were immediate.
Those who argue for immediate animation but delayed human ensoulment, including Aristotle and Thomas Aquinas and more recently Joseph Donceel, argue from a particular biological perspective which understands that the human being is present when its formation has been completed -- forty days for a male and eighty days for a female. The essential elements in that position are presented in the following. The soul is the substantial form of the human being. A substantial form requires matter capable of receiving it. In the case of the human being this means that the human soul can exist only in a highly organized body. What is being presented here is a theory of serial ensoulment -- first a vegetative soul, then a sentient soul, and finally a rational soul. The animation of the new being is immediate at fertilization. But the soul that animates the body is commensurate with the kind of life lived by the body and the degree of organization of the body. So in the early stages the body of the human being is animated by a vegetative soul which organizes the operations of nutrition and growth -- vegetative activities. As the new being develops in complexity and activities, such as sensation a new soul, an animal soul, replaces the vegetative soul. As the development in complexity continues and as the development of sense organs and nervous system progresses, another threshold is crossed. When the material substratum is sufficiently disposed, the rational soul appears and the human being as human being is constituted.
The significant points in the theory of serial ensoulment are the following. First because the soul is the substantial form of the body, the rational soul cannot be present until there is a body present that is significantly complex and organized to receive the soul. Second, a formal cause is present only in a finished product. An actual human soul cannot be united with a virtual human body. Third, there is no human body in the zygote. Fourth inasmuch as all the positive features of the human body derive from the soul, until the soul is present there is no human being. The responses are as follows. The first point is insufficiently aware of the high degree of organization and the high degree of complexity of activity and development -- billions of atoms, thousands of molecules all organized for the survival and growth of the new entity. To the second point: inasmuch as the genotype fixes the goal and inasmuch as the adult human being cannot be more than what it is determined to be in the zygote there is a very real sense in which the human being is fully formed in the zygote stage. The ultimate stage from a natural perspective is the adult human being who is the becoming of the initial stage. To the third point: the human body is really present in the zygote stage. It is present in the active natural potentiality of the zygote. It is not a fully developed body in the sense of a completed adult body. It is, however, a fully developed body in terms of what is to be expected of the normal body at this stage of development. It might be appropriate to say, "it is an actual human person with a body whose full development is already in dynamic process" (Mangan, 24). To the fourth point: the human body does derive all its positive features from its rational soul. However, all the potentialities of the human being are established, that is, are in act as active natural potentialities at the zygote stage. It seems more appropriate to maintain that the rational soul is present at that time. A more economical theory of ensoulment is as follows. At first the rational soul is active at its lower levels and is anticipating the higher levels of human activity similar to the manner in which organ development anticipates subsequent behavioral expression. In the early stages of human development, the rational soul may be said to be really present and to be exercising its vegetative powers as it does in a comatose human being. At a later stage of development, the rational soul may be said to be present and to be exercising its vegetative and sentient powers as it does in the sleeping human being. At a still later stage of development, it may be said to be present and to be exercising its vegetative, sentient, and rational powers as it does in the fullest expression of rational human life.
If the position developed above, that is, that human life is a continuum from syngamy until death, rests on a sufficiently solid foundation and if the responses to the counterpositions are adequate, then abortion is an act takes the life of a human being. Abortion, then, is a species of homicide. And the ethical injunctions that apply to the destruction of human life apply similarly to abortion.