In 1934, Karl N. Llewellyn published a lively essay trumpeting the dawn of legal realism, "On Philosophy in American Law." The charm of his defective little piece is its style and audacity. A philosopher might be seduced into reading Llewellyn's essay by its title; but one soon learns that by "philosophy" Llewellyn only meant "atmosphere". His concerns were the "general approaches" taken by practitioners, who may not even be aware of having general approaches. Llewellyn paired an anemic concept of philosophy (...) with a pumped-up conception of law. Llewellyn's "law" included anything that reflects the "ways of the law guild at large" - judges, legislators, regulators, and enforcers. Llewellyn argued that the legal philosophies implicit in American legal practice had been natural law, positivism and realism, each adopted in response to felt needs of a time. We must reckon with many other implicit "philosophies" to understand the workings of the law guild, not the least of which has been racism. Others, maternalism and paternalism, my foci here, persist in American law, despite women's progress toward equality. Both maternalism and paternalism were strikingly present in a recent decision of the U.S. Supreme Court, Gonzales v. Carhart, upholding the federal Partial-Birth Abortion Ban Act. (shrink)

In this paper we will argue in favor of federal funding of elective abortion, more specifically in support of Medicaid funding. To do so, we will address the restrictions on public funding presently in place and demonstrate that the various justifications offered in their defense are in­adequate. We will then suggest that the ‘failure to enable’ represented by a ban on Federal funding is morally equivalent to an outright prohibition on abortion for the target population. Just as a moral equivalence (...) can be established between killing and letting die in symmetrical cases, like criteria for equivalence can be established that help to identify those failures to make possible that are morally indistinguishable from proscriptions. On this basis, it can be shown that restrictions on Federal funding in such contexts can be thought to carry the same moral liability as prohibitions. (shrink)

This paper explores the rationale for violence and coercion aimed at preventing abortion conceived as the killing of an innocent person. Some important arguments for personhood at conception are examined, and in the light of the examination the paper considers whether they warrant concluding that a free and democratic society should pass laws recognizing personhood at conception. The wider concern is what principles such a society should use as a basis for legal coercion and what principles conscientious individuals should use (...) insofar as they judge that self-defense or, especially, protection of the innocent, requires violence. (shrink)

Moral status is a vexing topic. Linked for so long to the unending debates about ensoulment and the morality of abortion, it has recently resurfaced in the embryonic stem cell controversy. In this new context, it should benefit from new insights originating in recent scientific advances. We believe that the recently observed capability of somatic cells to return to a pluripotential state (a capability we propose to name 'reversed potency') in a controlled manner requires us to modify the traditional concept (...) of moral status and to consider it as referring not only to intrinsic properties (like 'to possess reason' or 'to be a person'), but also to extrinsic or relational ones. (shrink)

According to the Constitution View of persons, a human person is wholly constituted by (but not identical to) a human organism. This view does justice both to our similarities to other animals and to our uniqueness. As a proponent of the Constitution View, I defend the thesis that the coming-into-existence of a human person is not simply a matter of the coming-into-existence of an organism, even if that organism ultimately comes to constitute a person. Marshalling some support from developmental psychology, (...) I give a broadly materialistic account of the coming-into-existence of a human person. I argue for the metaphysical superiority of the Constitution View to Biological Animalism, Thomistic Animalism, and other forms of Substance Dualism. I conclude by discussing the single implication of the Constitution View for thinking about abortion. Footnotesa Thanks to Gareth Matthews and Catherine E. Rudder for comments. I am also grateful to other contributors to this volume, especially Robert A. Wilson, Marya Schechtman, David Oderberg, Stephen Braude, and John Finnis. (shrink)

The article questions the assumption that conjoined twins are necessarily two people or persons by employing arguments based on different points of view: non-personal vitalism, the person as a sentient being, the person as an agent, the person as a locus of narrative and valuation, and the person as an embodied mind. Analogies employed from the cases of amputation, multiple personality disorder, abortion, split-brain patients and cloning. The article further questions the assumption that a conjoined twin's natural interest and wish (...) is separation. I first contend that separation is such a radical procedure as to render the post-separation person different from the pre-separation one. Therefore, it is not possible to benefit the pre-separation twin by the act of separation. The article concludes with a critical evaluation of the tendency in bioethics to regard ethical challenges as rivalry between individuals competing for scarce resources. (shrink)

Contrary to the common view, this paper suggests that the Hippocratic oath does not directly refer to the controversial subjects of euthanasia and abortion. We interpret the oath in the context of establishing trust in medicine through departure from Pantagruelism. Pantagruelism is coined after Rabelais' classic novel Gargantua and Pantagruel. His satire about a wonder herb, Pantagruelion, is actually a sophisticated model of anti-medicine in which absence of independent moral values and of properly conducted research fashion a flagrant over-medicalization of (...) human problems. Ultimately this undermines the therapeutic core of medicine itself. We contend that PAS is a case of such over-medicalization and that its institution creates medicophobia. This article does not express an opinion about euthanasia in general. Rather, we claim that physicians should learn from the oath and from Rabelais that they should keep their practice to medical care and not to exploit their expertise and social privileges for the sake of ulterior motives, even when their patients desire those goals. (shrink)

This article is a critical review of David Boonin's book, A Defense of Abortion (Cambridge University Press, 2002), a significant contribution to the literature on this subject and arguably the most important monograph on abortion published in the past twenty years. Boonin's defense of abortion consists almost exclusively of sophisticated critiques of a wide variety of pro-life arguments, including ones that are rarely defended by pro-life advocates. This article offers a brief presentation of the book's contents with extended assessments of (...) those arguments of Boonin's that are his unique contributions to the abortion debate and with which the author disagrees: (1) Boonin's critique of the conception criterion and his defense of organized cortical brain activity as the acquired property that imparts to the fetus a right to life: (2) Boonin's defense of J. J. Thomson's violinist argument and his distinction between responsibility for existence and responsibility for neediness and its application to pregnancy. (shrink)

In a sex selective abortion, a woman aborts a fetus simply on account of the fetus’ sex. Her motivation or underlying reason for doing so may very well be sexist. She could be disposed to thinking that a female child is inferior to a male one. In a hate crime, an individual commits a crime on account of a victim’s sex, race, sexual orientation or the like. The individual may be sexist or racist in picking his victim. He or she (...) could be disposed to thinking that one race or sex is inferior to another. I argue that while a prohibition on sex selective abortions is anomalous in a liberal, criminal legal framework, hate crime legislation may not be. The former but not the latter constitutes a thought crime. I define a thought crime as one where an agent’s motivation is not just relevant but sufficient to take an act from the domain of the non-punishable to the domain of the punishable. Ignoring a woman’s sexist motivation in procuring an abortion suddenly renders her act of abortion legal. On the other hand, discounting an agent’s bias in committing a hate motivated assault or murder does not transform the act from a punishable one to a non-punishable one. Assaulting or murdering is already a crime. (shrink)

Better Never to Have Been argues for a number of related, highly provocative, views: (1) Coming into existence is always a serious harm. (2) It is always wrong to have children. (3) It is wrong not to abort fetuses at the earlier stages of gestation. (4) It would be better if, as a result of there being no new people, humanity became extinct. These views may sound unbelievable--but anyone who reads Benatar will be obliged to take them seriously.

Notwithstanding the question of whether abortion is generally or exceptionally a legitimate means of family planning, it is basically agreed that abortion is not justifiable without free and informed consent of the pregnant woman. However, if abortion is held by the legislature to be a ground of justification (i.e., a far-reaching exception to criminal liability), is it true that abortion may also be carried out for the benefit of a pregnant woman who is not able to give free and informed (...) consent? Should a substituted-judgment approach be applied in cases where the woman is incompetent to decide? Or should the pregnant womans relatives interests be taken into account exclusively? The author tries to answer these questions, which were tackled by the Austrian Supreme Court in a recent case. (shrink)

The two main views on the abortion controversy are pro life and pro choice. In my many previous writings on this subject (Block, 1977, 1978, 2001, 2004, 2008, 2010A, 2010B, 2010C, forthcoming; Block and Whitehead, 2005) I have offered a third alternative, evictionism. Wisniewski (2010A) has offered criticisms of this [...].

I have published more than just a few papers on the abortion issue. Instead of taking either the pro choice or the pro life position, I offer a third alternative: evictionism. I claim that this perspective, which, as it happens is a principled compromise between the other two positions, is [...].

During the last decade neurotransplantation has developed into a technique with the possible potential to repair damaged or degenerating human brain. Effective neurotransplantation has so far been based on the use of fetal brain tissue derived from aborted embryos or fetuses. The ethical issues related to this new therapeutic approach therefore not only concern the possible adverse side effects for a neural graft-receiving patient, but also the relationship between the requirements for fetal tissue and the decision-making process for induced abortion. (...) Although for decades human embryos and fetuses have been the subject of biomedical studies, and, in principle, their use has therefore not been seen as ethically objectionable, the above points made it necessary to reconsider the moral issues. The present paper points out several of these issues, both from the donor and acceptor (patient) point of view. The conclusion is that under a series of restrictions intended to prevent the use of grafts from encouraging induced abortions and to maintain high standards of respect for life and human dignity, neurotransplantation using embryonic or fetal brain tissue parts cannot be rejected on moral grounds. (shrink)

That the soul of a human person is infused at conception is a metaphysical claim. But given its traditional articulation, it has the empirical consequence that the zygote must have a substantial continuity with the adult person, a continuity which is already determined at conception. This empirical consequence is contradicted by the fact that the zygote may become a hydatidiform mole, or several persons. The metaphysical claim is falsified by the facts. Keywords: abortion, information capacity, metaphysical account, person, zygote CiteULike (...) Connotea Del.icio.us What's this? (shrink)

On both sides of the debate on the use of embryos in stem cell research, and in reproductive technologies more generally, rhetoric and symbolic images have been evoked to influence public opinion. Human embryos themselves are described as either “very small human beings” or “small clusters of cells.” The intentions behind the use of these phrases are clear. One description suggests that embryos are already members of our community and share with us a right to life or at least respectful (...) treatment, whereas the other focuses on the differences between embryos and adult human beings with normal capacities, that is, their lack of sentience and of personal identity. The research on stem cells has been nicknamed “Frankenstein science” or presented as “research that could stop Parkinson disease.” Again, one description reminds us of scary science-fiction scenarios where the scientist is guilty of “playing God,” whereas the other description highlights the worth and potential benefits of the research outcomes. (shrink)

This paper explores the rhetoric of obstetric ultrasound technology as it relates to the abortion debate, specifically the interpretation given to ultrasound images by opponents of abortion. The tenor of the anti-abortion approach is precisely captured in the videotape, Ultrasound:A Window to the Womb. Aspects of this videotape are analyzed in order to tease out the assumptions about the (female) body and about the access to truth yielded by scientific technology (ultrasound) held by militant opponents of abortion. It is argued (...) that the ultrasound images do not offer transparent confirmation of the ontological status of the embryo and fetus. Rather, the window of ultrasound is constructed through a complex combination of visual and verbal devices: ultrasound images, photographic images, verbal argument, and emotional appeal. (shrink)

Imagine that your body has become attached, without your permission, to that of a sick violinist. The violinist is a human being. He will die if you detach him. Such detachment seems, nonetheless, to be morally permissible. Thomson argues that an unwantedly pregnant woman is in an analogous situation. Her argument is considered by many to have established the moral permissibility of abortion even under the assumption that the foetus is a human being. Another popular argument is that presented by (...) Singer and Unger to the effect that even those who are moderately prosperous are morally obliged to help the poor if they can do so at relatively small cost to themselves. The paper considers the question whether these two arguments can be simultaneously valid. (shrink)

o ne -taking -Life ana Oavmg .Life The Islamic Context Jonathan E. Brockopp The great ethicists of the western world, Augustine, Aquinas, Kant, and others, ...

We shall find that the metaphysical views offered on behalf of moral conclusions about abortion do nothing in defence of those conclusions. Other disputable assumptions separate each moral conclusion from the invoked metaphysical view. It is the defensibility of the other assumptions that is crucial. No metaphysical view cited on behalf of a moral conclusion substantially advances the argument in favour of the conclusion.

Against Subtle Abortion-Supporting Arguments," 1 intending to rebut Joel Feinberg's arguments for the morality of some abortions. 2 For several years now, I have regarded Feinberg's article to be one of the best on the topic, so it surprised me that DeCelles thought he could punch holes in it. In fact DeCelles does not succeed in rebutting Feinberg. One failure is that he misrepresents Feinberg's position. And the position that DeCelles does favor has disadvantages, pointed out by Feinberg, which DeCelles (...) doesn't bother answering. In addition DeCelles introduces irrelevant matters which have the effect of red herrings. My overall impression of.. (shrink)

In ‘An Almost Absolute Value in History’ John T. Noonan criticizes several attempts to provide a criterion for when an entity deserves rights. These criteria, he argues are either arbitrary or lead to absurd consequence. Noonan proposes human conception as the criterion of rights, and justifies it by appeal to the sharp shift in probability, at conception, of becoming a being possessed of human reason. Conception, then, is when abortion becomes immoral.The article has an historical and a philosophical goal. The (...) historical goal is to carefully present the probability argument in a charitable manner. The philosophical goal is to offer a unique criticism of Noonan's probability argument against abortion. I argue that, even on a very charitable reading of Noonan's argument for the conception criterion, this criterion is also susceptible to charges of arbitrariness and absurdity. Noonan's claim that probability shifts have anything to do with the moral rights of fetuses cannot be made coherent. I also show that there are problems with Noonan's assumptions about moral rights and the potential to become a being possessed of human reason. (shrink)

In early 2010, the Nebraska state legislature passed a new abortion restricting law asserting a new, compelling state interest in preventing fetal pain. In this article, we review existing constitutional abortion doctrine and note difficulties presented by persistent legal attention to a socially derived viability construct. We then offer a substantive biological, ethical, and legal critique of the new fetal pain rationale.

Conclusions about the morality of abortion have been thought to receive some support from metaphysical doctrines about persons. The paper studies four instances in which philosophers have sought to draw such morals from metaphysics. It argues that in each instance the metaphysics makes no moral difference, and the manner of failure seems indicative of a general epistemic irrelevance of metaphysics to the moral issue.

The contention that abortion harms women constitutes a new strategy employed by the pro-life movement to supplement arguments about fetal rights. David C. Reardon is a prominent promoter of this strategy. Post-abortion syndrome purports to establish that abortion psychologically harms women and, indeed, can harm persons associated with women who have abortions. Thus, harms that abortion is alleged to produce are multiplied. Claims of repression are employed to complicate efforts to disprove the existence of psychological harm and causal antecedents of (...) trauma are only selectively investigated. We argue that there is no such thing as post-abortion syndrome and that the psychological harms Reardon and others claim abortion inflicts on women can usually be ascribed to different causes. We question the evidence accumulated by Reardon and his analysis of data accumulated by others. Most importantly, we question whether the conclusions Reardon has drawn follow from the evidence he cites. (shrink)

The contention that abortion harms women constitutes a new strategy employed by the pro-life movement to supplement arguments about fetal rights. David C. Reardon is a prominent promoter of this strategy. Post-abortion syndrome purports to establish that abortion psychologically harms women and, indeed, can harm persons associated with women who have abortions. Thus, harms that abortion is alleged to produce are multiplied. Claims of repression are employed to complicate efforts to disprove the existence of psychological harm and causal antecedents of (...) trauma are only selectively investigated. We argue that there is no such thing as post-abortion syndrome and that the psychological harms Reardon and others claim abortion inflicts on women can usually be ascribed to different causes. We question the evidence accumulated by Reardon and his analysis of data accumulated by others. Most importantly, we question whether the conclusions Reardon has drawn follow from the evidence he cites. (shrink)

For now, the best way to select a child's genes is to select a potential child who has those genes, using genetic testing and either selective abortion, sperm and egg donors, or selecting embryos for implantation. Some people even wish to select against genes that are only mildly undesirable, or to select for superior genes. I call this selection drift– the standard for acceptable children is creeping upwards. The President's Council on Bioethics and others have raised the parental love (...) objection: Just as we should love existing children unconditionally, so we should unconditionally accept whatever child we get in the natural course of things. If we set conditions on which child we get, we are setting conditions on our love for whatever child we get. Although this objection was prompted by selection drift, it also seems to cover selecting against genes for severe impairments. I argue that selection drift is not inconsistent with the ideal of unconditional parental love and, moreover, that the latter actually implies that we should practise selection drift – in other words, we should try to select potential children with the best genetic endowments. My endowment argument for the second claim works from an analogy between arranging an endowment prior to conception to fund a future child's education, and arranging a genetic endowment by selecting a potential child who already has it, where in both cases the child would not have existed without the endowment. I conclude with some programmatic remarks about the nonidentity problem. (shrink)

of (from Oxford Uehiro Centre for Practical Ethics) Medical Journal of Australia, 188 (2) 100 - 102.

In England and Wales, there is significant controversy on the law related to abortion. Recent discussions have focussed predominantly on the health professional's right to conscientious objection. This article argues for a comprehensive overhaul of the law from the perspective of an author who adopts the view that all unborn human beings should be granted the prima facie right to life. It is argued that, should the law be modified in accordance with this stance, it need not imply that health (...) professionals should enjoy an unqualified right to object to participating in the provision of abortion. Indeed, it is proposed that – in some situations – women should be granted a positive right to abortion. While the focus of this article is on changing the law in England and Wales, it is hoped that the position developed here will also inspire legal debate and reform elsewhere. (shrink)

: Those who are morally opposed to abortion generally make several pivotal assumptions. This paper focuses on the assumption that we have full moral status throughout our existence. Coupled with the assumption that we come into existence at conception, the assumption about moral status entails that all human fetuses have full moral status, including a right to life. Is the assumption about moral status correct? In addressing this question, I respond to several arguments advanced, in this journal and other venues, (...) by Alfonso Gómez-Lobo. Gómez-Lobo's reasoning resolves into two basic arguments: (1) an appeal to the practical necessity of early moral protection and (2) an appeal to our kind membership and potentiality. I respond to these in turn before offering further reflections. (shrink)

This paper situates abortion in the context of women’s duties to themselves. I argue that Kant’s fundamental moral requirement (found in the formula of humanity) to respect oneself as a rational being, combined with Kant’s view of our animal nature, form the basis for a view of pregnancy and abortion that focuses on women’s agency and moral character without diminishing the importance of their bodies and emotions. The Kantian view of abortion that emerges takes abortion to be morally problematic, but (...) sometimes permissible, and sometimes even required. I first sketch Kant’s account to duties to oneself, highlighting duties to oneself as an animal and moral being. Next, I discuss pregnancy and the challenges it poses to women’s self-preservation, development, and efficacy as rational human agents. I then give my main argument: that abortion is morally problematic because it is antagonistic to an important subset of morally useful emotions that we have self-regarding duties to protect and cultivate. I argue that self-regarding moral considerations ground a rebuttable deliberative presumption against maxims of abortion for inclination-based ends. Finally, I consider three objections to this account of abortion: that it rests on implausible assumptions about the effects of abortion on women’s morally useful sentiments; that it portrays the virtuous agent’s reasoning about abortion as objectionably self-regarding; and that it fails adequately to recognize the moral significance of the fetus as a potential rational being. (shrink)

This paper situates abortion in the context of women’s duties to themselves. I argue that the fundamental Kantian requirement to respect oneself as a rational being, combined with Kanrs view of our animal nature, form the basis for a view of pregnancy and abortion that focuses on women’s agency and characters without diminishing the importance of their bodies and emotions. The Kantian view of abortion that emerges takes abortion to be morally problematic, but sometimes permissible, and sometimes even required.After (...) sketching Kant’s account of duties to oneself, I discuss the challenges pregnancy poses to women’s agency. I then argue that abortion is morally problematic because it is antagonistic to an important subset of morally useful emotions that we have self-regarding duties to protect and cultivate; thus, there is a rebuttable deliberative presumption against maxims of abortion for indination-based ends. I close by considering objections. (shrink)

The formula of universal law (FUL) is a natural starting point for philosophers interested in a Kantian perspective on the morality of abortion. I argue, however, that FUL does not yield much in the way of promising or substantive conclusions regarding the morality of abortion. I first reveal how two philosophers' (Hare's and Gensler's) attempts to use Kantian considerations of universality and prescriptivity fail to provide analyses of abortion that are either compelling or true to Kant=s understanding of FUL. I (...) then turn to some recent interpretations of Kant=s FUL contradiction in conception (CC) and contradiction in will (CW) tests. I argue that none of the interpretations of the CC testBincluding the practical interpretation favored by KorsgaardBdoes much to reveal moral problems with maxims of abortion. The CW test (as developed by Herman) is more helpful. Nevertheless, I argue that neither by considering abortion maxims as a subset of maxims of convenience killing, nor by considering such maxims as maxims of refusing to aid, can the CW test generate a general prohibition of abortion. At best, the CW test illuminates the abortion issue because by forcing us to think about how killing a fetus differs from killing other human beings, what attitudes we may reasonably have toward a fetus, and whether Kant's moral theory must be amended to do justice to the problem of abortion. But to pursue these questions, we must look beyond FUL; Kant’s formula of humanity and doctrine of virtue may well have more to offer. (shrink)