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)

The research started with a definition of the general ethical background to be applied in bioethical discussions, particularly regarding aspects of morality that have to be enforced by the community. Only those moral beliefs that can be accepted by consensus in a free discussion can be enforced. It follows that the basic principle of a well ordered society is the equality (and possible upwards extension) of the basic liberties. Therefore, whenever it is possible to respect the principle of autonomy in (...) matters of bioethics (here including questions of abortion, assisted procreation, genetics, organ transplantation and euthanasia) this must be done. On the other hand, there are some common values that can be defended in a free dialogue, values that are needed in order to guarantee stable cooperation in a political society. These values include the respect for human life, which implies the respect for human life in all its forms. This leads to the conclusion that people who are able to be part of the system of cooperation in a political society have rights which are dominant in moral considerations. In all cases where there is no conflict between these rights and the value of life as manifested in human individuals who are not able participate in social cooperation, considerations of the value of the life of the latter must be an important moral consideration. This implies that embryo experimentation should be permitted in order to develop scientific advances needed to save human life, but embryos must not be used for trivial reasons or for the cosmetic industry. (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)

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 [...].

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 [...].

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.

In their paper “Sixteen Days” Barry Smith and Berit Brogaard try to answer the question: when does a human being begin to exist? In this paper we will address some methodological issues connected with this exercise in ontology. We shall begin by sketching the argument of “Sixteen Days”. We shall then attempt to characterize what is special about the ontological realism of “Sixteen Days” as contrasted to the linguistic constructivism which represents the more dominant current in contemporary analytic philosophy. This (...) will allow us to infer guidelines for assessing the quality of ontological theories of various types. We shall argue that ontological parsimony, groundedness, faithfulness to ordinary language, consistency with science, coherence, and fruitfulness are at least part of the adequacy criteria for such theories. These criteria will then be applied to the theory presented in “Sixteen Days”, and they will lead us to some revisions of this theory as well as to some reflections on its ethical implications. (shrink)

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)