Mary Shivanandan reviews, Patrick Lee's, Abortion and Unborn Human Life, The Catholic University of America Press, Washington, DC 1996, 168 pages
Patrick Lee's book offers a philosopher's critique of arguments justifying abortion. It deliberately eschews any use of theological arguments. The moral question the author addresses is the syllogism:
With thoroughness, precision and clarity, Lee first presents the arguments of those in favor of abortion, then systematically undermines their accuracy and logic. His aim is to establish that "the prima facie case against abortion is ultima facie sound as well."
The proponents of abortion can be divided into two main groupings, those who argue the fetus is not a person or only comes to be a person sometime during gestation or after birth and those who grant the fetus is a person but maintain abortion is not always intentional killing or that it is sometimes right, using consequentialist arguments. Professor Lee chooses one main representative of each of these positions, for example, Michael Tooley, proponent of the no-person argument, and L.W. Sumner, author of Abortion and Moral Theory, who holds the "gradualist" position. In the introduction he establishes the foundation of his critique. From conception the embryo is a distinct individual and is human; it is not a part but a whole human being with a capacity to think and will. It is therefore an entity we should respect and treat as an end not a mere means.
Arguments that challenge the personhood of the fetus are disproportionately based on psychological
attributes. To be considered a person with a right to life the entity must possess consciousness or be able to
desire. Tooley's position has changed over the years but none of the adjustments adequately answers the objections
raised. When it was pointed out that unconscious sleeping adults are similar to the fetus in being in a state of
potentiality and of having desires at some future date, not actually in the present, Tooley made the distinction
between a capacity and a potentiality. One must have a capacity, not just a potentiality for higher mental functions.
But Lee points out that some comatose patients have reparable brain damage. They are in a potential state and do
not actually have a capacity for mental functioning.
The gradualist position appeals because of its apparent moderation between two extremes. Taking sentience, a psychological criterion, Sumner and others argue that the fetus has no moral standing in the first trimester, some in the second and full moral standing in the third. Again the argument hinges on the difference between function and the intrinsically valuable entity that is the source of the function. Choosing sentience as the criterion is also a hedonist position. People choose what truly fulfills them, not merely experiences. Furthermore, rational agents can think and will for themselves and choose their own goals, unlike animals who are also sentient beings, so that it is not moral to treat them as mere instruments. Again a finely argued section.
In dealing with Ronald Dworkin's charge, however, that most arguments against abortion are what he calls "detached" rather than "derivative," Lee appears to be inconsistent or, perhaps not to make himself clear. A "detached" objection is one based on "the intrinsic, cosmic value of a human life" which Dworkin calls a religious argument and therefore inadmissible in the public arena. A "derived" objection, on the other hand, rests on the entity having rights which must be respected but since a fetus does not have consciousness it cannot have rights. Lee has disposed of this argument already. Lee calls the position he takes in his book a "derived" objection since he does not appeal to any religious or theological arguments. His argument is "that human embryos and fetuses are subjects of rights and that it is wrong to kill them, for the same reason it is wrong to kill any human being." Yet in other sections of the book he frequently speaks of the unborn as being "intrinsically valuable" (cf. p. 27, 56). In those cases he seems to be arguing from a philosophical not a theological perspective.
Lee makes excellent use of the latest genetic and biological research to show that the human being comes to be at conception. This is important to refute such arguments as that a functioning brain is the criterion for personhood. Following Benedict Ashley Lee shows that inadequate scientific knowledge led Aquinas to postulate infusion of the soul some time during gestation. With today's knowledge he would have recognized conception as the moment when form and matter generated a new human person. He also convincingly argues that twinning does not mean the original zygote is not a distinct whole individual and he disposes of the "mass of cells" comparison with the hydatidiform mole because at no point is it a true zygote.
Many of the arguments in the final chapter are already familiar from Finnis, Grisez and Boyle. While Professor Lee clearly shows that there is no valid standard by which to measure consequences, in combating the consequentialist argument on its own terms, he introduces compelling evidence of the harmful effects of the abortion itself on the woman. The relationship of the woman to the fetus, it seems to me, is an area that needs much greater attention from philosophers as well as theologians. Lee disposes reasonably well of Judith Thomson's argument that the fetus is an aggressor and that the fetus, while having a right to life, does not have the right to support from the mother's body. While there is a distinction between direct and indirect killing and abortion can be a legitimate in some cases, such an act would not be morally justified in most cases and in this case would be equivalent to child abandonment.
Professor Lee concedes that in some cases the death of the child is justified to save the life of the mother or rather he does not have any philosophical arguments to oppose abortion in that case even though in a footnote he says the Church seems to condemn all direct abortion. The case he proposes is where the "state of being pregnant" threatens the mother's life because of a heart condition. This differs, in my view, from the case of an ectopic pregnancy where the death of the child is currently inevitable and its removal would save the mother's life. In one case a defective pregnancy is being removed which threatens the mother's life. In the other a healthy fetus is directly destroyed. The exception for the mother's health is a loophole that renders most anti-abortion statutes virtually ineffective.
To confirm this vital point, I consulted Ob-Gyn, Hanna Klaus. From the medical perspective, the example Lee chooses "has been moot for more than 50 years." In fact a woman with a severe heart condition is more likely to die from an abortion than from careful medical/hospital management of her pregnancy. Dr. Klaus further categorically states that "if a woman is systemically ill, her embryo or fetus will die naturally, and before her." Abortion may prolong her life for some months but not save it. Again in the case of a pregnancy which threatens blindness in a diabetic, abortion may delay but not prevent it. In such cases the woman needs to be counseled before conception. Professor Lee would benefit from the same careful medical and scientific research he brings to analysis of the events surrounding conception and gestation.
Another area calling for greater philosophical analysis is the individualist claim made by Thomson and other feminists that a woman has a pre-emptive right to her own body. The relational notion of the human person is gaining ground especially in theological but also philosophical circles (cf. W. Norris Clarke and Karol Wojtyla). Abortion destroys the fundamental relation between mother and child. The argument from child abandonment begins to address this issue but does not yet carry the weight it deserves. The relational dimension is also significant in various technological interventions such as in vitro fertilization.
The argument of the right of the unborn child to life, however, will always be paramount since without life no other goods can exist. Professor Lee has made a masterly refutation of the arguments in favor of a right to abortion. As the publisher's synopsis states, the book will be especially useful as a text book for seminary and graduate courses in bio-ethics. Since many of the same anti-life arguments are being used in the euthanasia debate, it will have even wider application in the years to come.
Mary Shivanandan, MA, STD
This version: 10th February 2003