FIU Warren on The Moral and Legal Status of Abortion Essay: Philosophy Answers 2021

FIU Warren on The Moral and Legal Status of Abortion Essay: Philosophy Answers 2021

FIU Warren on The Moral and Legal Status of Abortion Essay: Philosophy Answers 2021

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FIU Warren on The Moral and Legal Status of Abortion Essay

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not, in itself, show that the restrictions are unjustified,
since murder is wrong regardless of the consequences of
prohibiting it; and the appeal to the right to control ones
body, which is generally construed as a property right, is
at best a rather feeble argument for the permissibility of
abortion. Mere ownership does not give me the right to
kill innocent people whom I find on my property, and
indeed I am apt to he held responsible if such people
injure themselves while on my property. It is equally
unclear that I have any moral right to expel an innocent
person from my property when I know that doing so will
result in his death.
On the Moral and Legal Status of
Abortion
Mary Anne Warren
The Monist, Vol. 57, No. 4, 1973. Part II reprinted,
with postscript, in The Problem of Abortion, 1984,
Joel Feinberg, ed., Belmont: Wadsworth
1
2
3
We will be concerned with both the moral status of
abortion, which for our purposes we may define as the act
that a woman performs in voluntarily terminating, or
allowing another person to terminate, her pregnancy, and
the legal status that is appropriate for this act. I will argue
that, while it is not possible to produce a satisfactory
defense of a woman’s right to obtain an abortion without
showing that a fetus is not a human being, in the morally
relevant sense of that term, we ought not to conclude that
the difficulties involved in determining whether or not a
fetus is human make it impossible to produce any
satisfactory solution to the problem of the moral status of
abortion. For it is possible to show that, on the basis of
intuitions which we may expect even the opponents of
abortion to share, a fetus is not a person, hence not the
sort of entity to which it is proper to ascribe full moral
rights.
Of course, while some philosophers would deny the
possibility of any such proof,1 others will deny that there
is any need for it, since the moral permissibility of
abortion appears to them to be too obvious to require
proof. But the inadequacy of this attitude should he
evident from the fact that both the friends and foes of
abortion consider their position to he morally self-evident.
Because proabortionists have never adequately come to
grips with the conceptual issues surrounding abortion,
most if not all, of the arguments which they advance in
opposition to laws restricting access to abortion fail to
refute or even weaken the traditional antiabortion
argument, i.e., that a fetus is a human being, and therefore
abortion is murder.
These arguments are typically of one of two sorts. Either
they point to the terrible side effects of the restrictive
laws, e.g., the deaths due to illegal abortions, and the fact
that it is poor women who suffer the most as a result of
these laws, or else they state that to deny a woman access
to abortion is to deprive her of her right to control her
own body. Unfortunately, however, the fact that
restricting access to abortion has tragic side effects does
1
For example. Roger Wertheimer, who in “Understanding the
Abortion Argument” (Philosophy and Public Affairs I:1) argues
that the problem of the moral status of abortion is insoluble, in
that the dispute over the status of the fetus is not a question of
fact at all, but only a question of how one responds to the facts.
4
John Noonan is correct in saying that “the fundamental
question in the long history of abortion is, How do you
determine the humanity of a being?”.2 He summarizes his
own antiabortion argument, which is a version of the
official position of the Catholic Church, as follows:
… it is wrong to kill humans, however poor, weak,
defenseless, and lacking in opportunity to develop
their potential they may he. It is therefore morally
wrong to kill infants. Similarly, it is morally wrong to
kill embryos.3
5
Noonan bases his claim that fetuses are human upon what
he calls the theologians’ criterion of humanity: that
whoever is conceived of human beings is human. But
although he argues at length for the appropriateness of
this criterion, he never questions the assumption that if a
fetus is human then abortion is wrong for exactly the
same reason that murder is wrong.
6
Judith Thomson is, in fact, the only writer I am aware of
who has seriously questioned this assumption; she has
argued that, even if we grant the antiabortionist his claim
that a fetus is a human being, with the same right to life as
any other human being, we can still demonstrate that, in at
least some and perhaps most cases, a woman is under no
moral obligation to complete an unwanted pregnancy.4
Her argument is worth examining, since if it holds up it
may enable us to establish the mural permissibility of
abortion without becoming involved in problems about
what entitles an entity to be considered human, and
accorded full mural rights. To be able to do this would he
a great gain in the power and simplicity of the proabortion
position, since, although I will argue that these problems
can be salved at least as decisively as can any other moral
problem, we should certainly be pleased to be able to
avoid having to solve them as part of the justification of
abortion.
7
On the other hand, even if Thomson’s argument does not
hold up, her insight, i.e., that it requires arguments to
2
John Noonan, “Abortion and the Catholic Church: A Summary
History,” Natural Law Forum, 12 (1967).
3
John Noonan, “Deciding Who Is Human,” Natural Law
Forum, 13 (1968), 134.
4
“A Defense of Abortion.”
2 / Mary Anne Warren / “On the Moral and Legal Status of Abortion”
show that if fetuses are human then abortion is properly
classified as murder, is an extremely valuable one. The
assumption she attacks is particularly invidious, for it
amounts to the decision that it is appropriate, in deciding
the moral status of abortion, to leave the rights of the
pregnant woman out of consideration entirely, except
possibly when her life is threatened. Obviously, this will
not do; determining what moral rights, if any, a fetus
possesses is only the first step in determining the moral
status of abortion. Step two, which is at least equally
essential, is finding a just solution to the conflict between
whatever rights the fetus may have, and the rights of the
woman who is unwillingly pregnant. While the historical
error has been to pay far too little attention to the second
step, Thomson’s suggestion is that if we look at the
second step first, we may find that a woman has a right to
obtain an abortion regardless of what rights the fetus has.
8
Our own inquiry will also have two stages. In Section I,
we will consider whether or not it is possible to establish
that abortion is morally permissible even on the
assumption that a fetus is an entity with a full-fledged
right to life. I will argue that in fact this cannot he
established, at least not with the conclusiveness which is
essential to our hopes of convincing those who are
skeptical about the morality of abortion, and that we
therefore cannot avoid dealing with the question of
whether or not a fetus really does have the same right to
life as a (more fully developed) human being.
9
In Section II, I will propose an answer to this question,
namely, that a fetus cannot he considered a member of the
moral community, the set of beings with full and equal
moral rights, for the simple reason that it is not a person,
and that it is personhood, and not genetic humanity, i.e.,
humanity as defined by Noonan, which is the basis for
membership in this community. I will argue that a fetus,
whatever its stage of development, satisfies none of the
basic criteria of personhood, and is not even enough like a
person to he accorded even some of the same rights on the
basis of this resemblance. Nor, as we will see, is a fetus’s
potential personhood a threat to the morality of abortion,
since, whatever the rights of potential people may be, they
are invariably overridden in any conflict with the moral
rights of actual people.
Part I
10
We turn now to Professor Thomson’s case for the claim
that even if a fetus has full moral rights, abortion is still
morally permissible, at least sometimes, and for some
reasons other than to save the woman’s life. Her argument
is based upon a clever, but I think faulty, thinking. She
asked us to picture ourselves waking up one day, in bed
with a famous violinist. Imagine that you have been
kidnapped, and your bloodstream hooked up to that of the
violinist, who happens to have an ailment that will
certainly kill him unless he is permitted to share your
kidneys for a period of nine months. No one else can save
him, since you alone have the right type of blood. He will
he unconscious all that time, and you will have to stay in
bed with him, but after the nine months are over he may
be unplugged, completely cured, that is provided that you
have cooperated.
11
Now then, she continues, what are your obligations in this
situation? The antiabortionist, if he is consistent, will have
to say that you are obligated to stay in bed with the
violinist: for all people have a right to life, and violinists
are people, and therefore it would be murder for you to
disconnect yourself from him and let him die.5 But this is
outrageous, and so there must he something wrong with
the same argument when it is applied to abortion. It would
certainly be commendable of you to agree to save the
violinist, but it is absurd to suggest that your refusal to do
so would be murder. His right to life does not obligate
you to do whatever is required to keep him alive; nor does
it justify anyone else forcing you to do so. A law that
required you to stay in bed with the violinist would
clearly be an unjust law, since it is no proper function of
the law to force unwilling people to make huge sacrifice
for the sake of other people toward whom they have no
such prior obligation. Thomson concludes that, if this
analogy is an apt one, then we can grant the
antiabortionist his claim that a fetus is a human being, and
still hold that it is at least sometimes the case that a
pregnant woman has the right to refuse to be a Good
Samaritan towards the fetus, i.e., to obtain an abortion.
For there is a great gap between the claim that x has a
right to life, and the claim that y is obligated to do
whatever is necessary to keep x alive, let alone that he
ought to be forced to do so. It is y’s duty to keep x alive
only if he somehow contracted a special obligation to do
so; a woman who is unwillingly pregnant, e.g., who was
raped, has done nothing which obligates her to make the
enormous sacrifice which is necessary to preserve the
conceptus.
12
This argument is initially quite plausible, and in the
extreme case of pregnancy due to rape, it is probably
conclusive. Difficulties arise, however, when we try to
specify more exactly the range of cases in which abortion
is clearly justifiable even on the assumption that the fetus
is human. Professor Thomson considers it a virtue of her
argument that it does not enable us to conclude that
abortion is always permissible. It would, she says, be
“indecent” for a woman in seventh month to obtain an
abortion just to avoid having to postpone a trip to Europe.
On the other hand, her argument enables us to see that “a
sick and desperately frightened schoolgirl pregnant due to
rape may of course choose abortion, and that any law
which rules this out is an insane law” (p. 65). So far, so
good, but what are we to say about the woman who
5
Judith Thomson, “A Defense of Abortion,” Philosophy and
Public Affairs I:1.
3 / Mary Anne Warren / “On the Moral and Legal Status of Abortion”
becomes pregnant not through rape but as a result of her
own carelessness, or because of contraceptive failure, or
who gets pregnant intentionally and then changes her
mind about wanting a child? With respect to such cases,
the violinist analogy is of much less use to the defender of
the woman’s right to obtain an abortion.
13
Indeed, the choice of a pregnancy due to rape, as an
example of a case in which abortion is permissible even if
a fetus is considered a human being, is extremely
significant; for it is only in the case of pregnancy due to
rape that the woman’s situation is adequately analogous to
the violinist case for our intuitions about the latter to
transfer convincingly. The crucial difference between a
pregnancy due to rape and the normal case of an
unwanted pregnancy is that in the normal case we cannot
claim that the woman is in no way responsible for her
predicament; she could have remained chaste, or taken
her pills more faithfully or abstained on dangerous days,
and so on. If on the other hand, you are kidnapped by
strangers, and hooked up to a strange violinist, then you
are free of any shred of responsibility for the situation, on
the basis of which it would he argued that you are
obligated to keep the violinist alive. Only when her
pregnancy is due to rape is a woman clearly just as
nonresponsible.6
14
Consequently, there is room for the antiabortionist to
argue that in the normal case of unwanted pregnancy a
woman has, by her own actions, assumed responsibility of
the fetus. For if x behaves in a way which he could have
avoided, and which he knows involves, let us say, a 1
percent chance of bringing into existence a human being,
with a right to life, and does so knowing that if this should
happen then that human being will perish unless x does
certain things to keep him alive, then it is by no means
clear that when it does happen x is free of any obligation
to what he knew in advance would he required to keep
that human being alive.
15
The plausibility of such an argument is enough to show
that the Thomson analogy can provide a clear and
persuasive defense of a woman’s right to obtain an
abortion only with respect to those cases in which the
woman is in no way responsible for her pregnancy, e.g.,
where it is due to rape. In all other cases, we would
almost certainly conclude that it was necessary to look
carefully at the particular circumstances in order to
determine the extent of the woman’s responsibility and
hence the extent of her obligation. This is an extremely
unsatisfactory outcome, from the viewpoint of the
6
We may safely ignore the fact that she might have avoided
getting raped, e.g., by carrying a gun, since by similar means
you might likewise have avoided getting kidnapped, and in
neither case does the victim’s failure to take all possible
precautions against a highly unlikely event (as opposed to
reasonable precautions against a rather likely event) mean that
he is morally responsible for what happens.
opponents of restrictive abortion laws, most of whom are
convinced that a woman has a right to obtain an abortion
regardless of how and why she got pregnant.
16
Of course, a supporter of the violinist analogy might point
out that it is absurd to suggest that forgetting her pill one
day might be sufficient to obligate a woman to complete
an unwanted pregnancy. And indeed, it is absurd to
suggest this. As we will see, the moral right to obtain an
abortion is not in the least dependent upon the extent to
which a woman is responsible for her pregnancy. But
unfortunately, once we allow the assumption that a fetus
has full moral rights, we cannot avoid taking this absurd
suggestion seriously. Perhaps we can make this point
more clear by altering the violinist story just enough to
make it more analogous to a normal unwanted pregnancy
and less to a pregnancy due to rape, and then seeing
whether it is still obvious that you are not obligated to
stay in bed with the fellow.
17
Suppose, then, that violinists are peculiarly prone to the
sort of illness the only cure for which is the use of
someone else’s bloodstream for nine months, and that
because of this there has been formed a society of music
lovers who agree that whenever a violinist is stricken they
will draw lots and the loser will, by some means, be made
the one and only person capable of saving him. Now then,
would you be obligated to cooperate in curing the
violinist if you had voluntarily joined this society,
knowing the possible consequences, and then your name
had been drawn and you had been kidnapped?
Admittedly, you did not promise ahead of time that you
would, but you did deliberately place yourself in a
position in which it might happen that a human life would
be lost if you did not. Surely, this is at least a prima facie
reason for supposing that you have an obligation to stay in
bed with the violinist. Suppose that you had gotten your
name drawn deliberately; surely that would be quite a
strong reason for thinking that you had such an obligation.
18
It might be suggested that there is one important
disanalogv between the modified violinist case and the
case of an unwanted pregnancy, which makes the
woman’s responsibility significantly less, namely, the fact
that the fetus comes into existence as the result of the
woman’s actions. This fact might give her a right to
refuse to keep it alive, whereas she would not have had
this right had it existed previously, independently, and
then as a result of her actions become dependent upon her
for its survival.
19
My own intuition, however, is that x has no more right to
bring into existence, either deliberately or as a foreseeable
result of actions he could have avoided, a being with full
moral rights y, and then refuse to do what he knew
beforehand would be required to keep that being alive,
than he has to enter into an agreement with an existing
person, whereby he may be called upon to save that
person’s life, and then refuse to do so when so called
4 / Mary Anne Warren / “On the Moral and Legal Status of Abortion”
upon. Thus x’s responsibility for y’s existence does not
seem to lessen his obligation to keep y alive, if he is also
responsible for y’s being in a situation in which only he
can save him.
20
21
Whether or not this intuition is entirely correct, it brings
us back once again to the conclusion that once we allow
the assumption that a fetus has full moral rights it
becomes an extremely complex and difficult question
whether and when abortion is justifiable. Thus the
Thomson analogy cannot help us produce a clear and
persuasive proof of the moral permissibility of abortion.
Nor will the opponents of the restrictive laws thank us for
anything less; for their conviction (for the must part) is
that abortion is obviously not a morally serious and
extremely unfortunate, even though sometimes justified
act, comparable to killing in self-defense or to letting the
violinist die, but rather is closer to being a morally neutral
act, like cutting one’s hair.
The basis of this conviction, I believe, is the realization
that a fetus is not a person, and thus does not have a
full-fledged right to life. Perhaps the reason why this
claim has been so inadequately defended is that it seems
self-evident to those who accept it. And so it is, insofar as
it follows from what I take to be perfectly obvious claims
about the nature of personhood, and about the proper
grounds for ascribing moral rights, claims which ought,
indeed, to be obvious to both the friends and foes of
abortion. Nevertheless, it is worth examining these
claims, and showing how they demonstrate the moral
innocuousness of abortion, since this apparently has not
been adequately done before.
meaning, which serves to conceal the fallaciousness of the
traditional argument that since (1) it is wrong to kill
innocent human beings, and (2) fetuses are innocent
human beings, then (3) it is wrong to kill fetuses. For if
“human” is used in the same sense in both (1) and (2)
then, whichever of the two uses is meant, one of these
premises is question-begging. And if it is used in two
different senses then of course the conclusion doesn’t
follow.
24
Thus, (1) is a self-evident moral truth,7 and avoids
begging the question about abortion, only if “human
being” is u…

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