A Critique of Mary Anne Warren’s On the Moral and Legal Status of Abortion, Part I
I recently gave an in-depth critique of one of the most important articles ever written on the abortion issue. I would like to turn my attention now to another popular essay written by Mary Anne Warren called On the Moral and Legal Status of Abortion. Whereas Thomson argued that pro-choice people can assume the unborn are full human persons and still justify abortion, Warren argued that the unborn certainly are not persons because they don’t fulfill the qualifications of personhood.
I think Thomson is a genuine philosopher. Warren, despite her essay being popular, does not seem to have been trained very well as a philosopher. Her essay is filled with logical problems, despite her attempt to show that it is actually the pro-life position that is fallacious. She spends much of her essay responding to John T. Noonan’s essay “Deciding Who is Human.” I have not read it. I tried to search the internet to see if there was a site that had it with no luck. I do have another Noonan essay, “Abortion is Morally Wrong,” which I did re-read to prepare myself for writing this article. So I’m going to assume that Warren is accurately representing Noonan’s words. Warren wrote her essay in 1973, but some 17 years later Stephen Schwartz wrote a book (now out-of-print) called The Moral Question of Abortion. This book contains a foreword praising the book by Dr. Bernard Nathanson, and contains a very compelling argument for embryonic/fetal personhood. I’m not sure what the state of pro-life arguments were at that time, but Schwartz has compiled a more compelling case for fetal personhood than Noonan did. It will be interested to see if Warren has ever responded to Schwartz.
Warren begins in her introduction with a brief word about Jefferson and how it may be fair to suggest he only meant to attribute those words to men when he wrote in the Declaration of Independence that “all men are created equal.” I find this incredibly dubious. The moral position of the Founders when they wrote the Declaration of Independence was that there was a natural law, and that government’s job was not to create rights, but to protect those that all human beings have by virtue of being created, that is, conceived. For a more fuller treatment on this issue, see the wonderful book Natural Rights and the Right to Choose by Hadley Arkes.
From here Warren springboards into a discussion of what makes us human.
1. On the definition of “human.”
Warren begins this section by looking at a common pro-life argument: P1: It is wrong to kill innocent human beings. P2: Fetuses are innocent human beings. C: Therefore, it is wrong to kill fetuses.
This is a perfectly valid deductive argument. However, Warren tries to invalidate it by claiming there’s a logical fallacy. She argues, correctly it would seem, that there are two different senses of the word “human”: the genetic sense, in which a human being belongs to the biological species Homo sapiens. Then there’s the moral sense, in which an individual is human enough to where human rights and value can be established. It would be wrong to kill you if you are human in the moral sense, but not if you’re not human in the moral sense.
She argues that one of these premises is question-begging because premise one is only self-evident if you mean “human” in the moral sense, and that premise two is not question-begging only if you mean “human” in the genetic sense. So the word “human” is being used in two different senses. So first, a premise can’t beg the question, only a person can. You beg the question if you are assuming the conclusion in one of your premises; in other words, you only accept the premise because you already accept the conclusion. So what Warren actually means is that pro-life people are equivocating on the term human. But are they really?
The whole purpose of deductive arguments is to reason from a large group to a specific case. Any deductive argument could be dismissed as question-begging for this reason. It’s mind-boggling how a philosopher could completely misunderstand the purpose of deductive arguments. It doesn’t matter whether a premise is “self-evident” or not. What matters is, can you support the premises? Of course we can. There’s no reason to suppose that the moral sense is not meant in the second premise of the argument. Human fetuses are genetically human, but we can also argue that they are morally human, as well.
Warren finishes up the section by chiding Noonan for arguing that because the unborn have the full genetic code, they are full human persons. He also argues that they have the potential for rationality, but Warren responds to that later. However, it seems to me that whoever wants to take human life has the burden of proof. It seems much more reasonable to assume that the unborn, because they belong to our species, are persons. If someone wants to argue that they are not a person, it seems to me that they actually have the burden of proof. For as long as there is any possibility that they might be full human persons, we ought not be taking their lives.
So far Warren is off to a less-than-stellar start. And to be honest, it’s pretty much all downhill from here. In the next part, we’ll examine her criteria for personhood and show how the unborn qualify.
this promises to be fun series. right on.
I can't wait for the next part!
Hopefully it wil be as fun to read as it is to write. 🙂 Despite how popular the article is, and considering that it was written by a philosopher, it's surprisingly poorly argued. In the future I'll turn my attention to philosophers who make a stronger case against fetal personhood.
Thanks for reading!
Nice article! I look forward to reading the other parts of it. While I have the same position that you do (prenatal human beings and human infants should be considered persons out of caution), I have not yet been able to formulate an effective response to someone who is willing to "take the risk" of not considering them to be persons.
Thanks! Essentially I think if someone is willing to "take the risk" of not considering them to be persons, they're either just biting the bullet to save face, or they're just inherently reckless. Consider this:
A construction worker is about to blow up a condemned building. Before he throws the switch, another construction worker comes up to the first and says that he thought he saw someone's silhouette in one of the windows. The second one doesn't know for sure, but thinks there may be someone in there. Would the first worker be justified in blowing up the building anyway, because the second probably didn't see anything? I would think not. He should take every possible precaution to make sure no one's inside before throwing the switch. The benefit of the doubt always go to life.
If you're driving late at night and see a jacket lying on the street in front of you, you would swerve in case someone is under it, rather than driving over it. At least one would hope. Or if you're a hunter and hear a rustling in the bushes, you're not sure whether it's a deer or another human being, unless you're Dick Cheney you don't take the shot.
It's just inherently reckless for someone to bite the bullet and say that we should take the risk anyway.
Now, there are some philosophers who have responded to this claim with a better argument than simply "you should take the risk," but I think their case is mistaken.
Your analogies are pretty good, especially the deer in the bushes one (which is the one that I think of most frequently when it comes to this issue). However, these pro-choicers (usually) do not claim that a risk should be taken without sufficient evidence beforehand. Rather, they claim that they have sufficient evidence and arguments to show (using your analogy) that it is indeed a deer in the bushes rather than another human being, and that thus it should be okay to take the risk of shooting in the bushes (since they think that the risk of a miscalculation is very small; you obviously disagree with them).
In regards to personhood for prenatal human beings and human infants (if they are indeed willing to go that far), they could claim that if the ability to think rationally and to think about distinguishing right and wrong makes us valuable/persons, then human beings who are incapable of rational thought should not be considered persons. They can then state that just like the future ability to (in one's opinion) analyse political events and political candidates very well does not and should not be used to justify giving minors the right to vote right now, the future mental abilities of prenatal human beings and of human infants should not be used to justify having them be legally considered persons right now.
Regarding prenatal personhood, the problem is that people tend to confuse natural rights with legal rights. Natural rights are rights that all human beings enjoy, regardless of age or development. Legal rights are rights that are rightly bestowed by the state and are granted after a certain level of maturity is achieved (and obviously people mature at different rates, so it's not really a perfect system). Legal rights include the right to drive and the right to vote. But it's a non sequitor to argue that just because a fetus can't vote, that also means it has no right to live. The right to life is a natural right, so all human beings have it, including the unborn.
I'll actually be addressing the question of rationality in the next part to this series, but it's also a non sequitor to argue that just because an entity isn't rational now, that it is not a person. There's a difference between a brain-dead person and a human fetus, in that the brain-dead person has forever lost its potential to function as a person, whereas the fetus, being in the early stage of life, just has not acquired the ability to function rationally yet. In that respect, a fetus is more comparable to a person in a reversible coma than to a brain-dead person.
"Regarding prenatal personhood, the problem is that people tend to
confuse natural rights with legal rights. Natural rights are rights that
all human beings enjoy, regardless of age or development. Legal rights
are rights that are rightly bestowed by the state and are granted after a
certain level of maturity is achieved (and obviously people mature at
different rates, so it's not really a perfect system). Legal rights
include the right to drive and the right to vote. But it's a non
sequitor to argue that just because a fetus can't vote, that also means
it has no right to live. The right to life is a natural right, so all
human beings have it, including the unborn."
I think that you misunderstood this argument. This argument states that just like someone needs to be capable (or perceived to be capable) right now in order to get the right to vote, one needs to have to be capable of thinking rationally right now in order to receive legal personhood and the right to life. Also, someone could simply refuse to recognize the concept of natural rights, or simply not think that fetuses have natural rights. Anyway, the only rights which the government recognizes are those which it bestows on us–all other rights which we might possibly have are worthless. This does not necessarily mean that the government is acting in a morally justifiable way in determining who gets and doesn't get which rights, though.
"I'll actually be addressing the question of rationality in the next part
to this series, but it's also a non sequitor to argue that just because
an entity isn't rational now, that it is not a person. There's a
difference between a brain-dead person and a human fetus, in that the
brain-dead person has forever lost its potential to function as a
person, whereas the fetus, being in the early stage of life, just has
not acquired the ability to function rationally yet. In that respect, a
fetus is more comparable to a person in a reversible coma than to a
The thing is that while you believe that someone who will become capable of rationality in the future is a person, someone else can claim that individuals need to be rational right now in order to be considered a person. Also, in regards to individuals in reversible comas, unlike prenatal human beings and human infants, they have already acquired the ability to think rationality in the past, still have brain waves, and their brains/minds are still capable of thinking rationally since the parts of the brain which are responsible for this already exist and are fully developed for them. This is not to mention the fact that their brains/minds still have memories inside of them. Here's how these people view it–an individual in a reversible coma is similar to a computer which is on suspend mode, an individual with global ischemia is similar to a computer which is turned off/shut down (but which can be re-activated with all of its (previous) information still on/in there in the future), and prenatal human beings and human infants are simply computers which are in the process of being built right now but which are not built and functional yet.
As I said, I'll be addressing the concept of rationality in the next part, but just because someone disagrees doesn't mean they're right. The question is, can they support their position? I believe that the best evidence is that personhood is based on the inherent nature of an individual, not on the functions they can perform now, and I do justify this in the next part. Mary Anne Warren doesn't even attempt to justify her position.
And actually, the Founders of the US based the laws of the Constitution on Natural Righs. The Bill of Rights were set out to protect those, and wrote that the role of government is not to estalish new rights, but to protect the natural rights of all of its citizens. So someone can reject the concept of natural rights all they want, but they would be wrong to do so. Without natural rights, no person has the right to live, defend themselves, etc. So that's a dangerous position take. There comes a point when someone just keeps bitng every bullet you give them because they're so desperate to defend their position. I've seen this in discussions with people, not just in the abortion issue but also when discussing morality in general.
One of my favorite TV series is the West Wing, and one of the quotes that stuck with me (though it was in the context of an entirely different political issue) is "In a free society you don't need a reason to make something legal. You need a reason to make something illegal." There is a long standing legal concept that life starts at birth, with the first breath. The pro-life side is the one that wants to make something else illegal, so it seems to me that the burden is on the pro-life side, not the pro-choice side.