Downloaded from http://jme.bmj.com/ on November 19, 2015 - Published by group.bmj.com
Author meets critics: response
DeGrazia on abortion law and policy Sheelagh McGuinness INTRODUCTION In Creation Ethics, David DeGrazia deals with a range of questions that challenge our understanding of ethical reproduction.1 In this short commentary, I wish to focus on DeGrazia’s treatment of the ethics of abortion and specifically his views on whether abortion should be publically funded.
DEGRAZIA ON THE ETHICS OF ABORTION In Chapter 2, entitled ‘Prenatal Moral Status and Ethics’, DeGrazia outlines his views on the ethics of abortion. DeGrazia deals thoughtfully and in a nuanced way with the ethics of prenatal moral status and it is to his credit that he strives to give the fairest reading to a range of pro-life arguments. Aside from scholarly integrity, DeGrazia has a principled commitment to taking seriously those who believe that the foetus/embryo has moral status. His liberal pluralism regarding the permissibility of abortion means that ‘[u]nlike nearly every philosopher I know who holds a liberal view on prenatal moral status and/ or the ethics of abortion and embryo research’ he believes ‘that a broadly pro-life approach remains standing as a reasonable option’ ( p.43).1 Specifically, DeGrazia ends up endorsing the view that abortion is generally permissible but is it not necessary to publicly fund such care. DeGrazia’s arguments on the ethics of abortion rest on his defence of a tripartite framework for understanding prenatal moral status. The three prongs of this framework are: 1. A biological essentialist account of identity ( p.24).1 2. Sentience is a relevant criterion for moral status ( p.29).1 3. A form of the time relative interests argument whereby ‘a right to life depends on a strong interest in remaining alive’ ( pp.33–34).1 It is not the purpose of this commentary to engage in a critique of DeGrazia’s arguments on these points. Rather, the above is outlined so that the reader gets a sense of the basis of DeGrazia’s position. However, I would like to highlight the Correspondence to Dr Sheelagh McGuinness, School of Law, Centre for Health Law, Science & Policy, University of Birmingham, Birmingham B15 2TT, UK; [email protected] 422
fact that DeGrazia seems to accept at least some sense of there being ‘no uniquely correct view’ ( p.45)1 when it comes to the permissibility of abortion, as there are a range of reasonable views about prenatal moral status. Once DeGrazia has set out these arguments he moves on to a more applied critique of abortion law and policy and it is on this I would like to focus my criticism of his position.
DEGRAZIA ON ABORTION LAW AND POLICY DeGrazia’s position can be summarises as saying that ‘The principle that people should not be coerced on the basis of reasonably rejectable philosophical or religious doctrines rules out as illegitimate the prohibition of early abortion. That principle does not rule out as illegitimate restrictions on late abortion, however, or public funding of abortion. Nor does it require these things — whatever the democratic majority decides is legitimate’. Suppose DeGrazia is right that a Rawlsian principle of public justification would rule out as illegitimate the prohibition of early abortion, but does not require any particular policy on public funding. If this is correct, the question of public funding is to be settled not by appeal to the idea of public reason, but by appeal to more familiar considerations about interests, justice, equality, and autonomy. DeGrazia offers a case against public funding of abortion based on concern for the interests of pro-life citizens in not contributing financially to a practice which they find morally abhorrent. I believe, however, that that case is both implausible, and inconsistent with what he says shortly afterward on stem cell funding and prenatal genetic interventions.i Let me start by outlining DrGrazia’s views on the funding of abortion, which result from his views about abortion and reasonable disagreement. He argues that:
i
Thanks to Jeremy Williams for the helpful discussions and suggestions. For a detailed critique of Rawlsian public reason and abortion see Jeremy Williams, Public Reason and Prenatal Moral Status. Journal of Ethics, forthcoming. He argues that Rawlsian public reason is far more permissive of abortion than is often presumed.
The pro-life community is a substantial minority of persons whose views are not unreasonable and who have to tolerate very permissive policies on abortion. From the standpoint of their sensibilities, it likely would seem to add insult to moral injury to have to pay for abortions with public funds. ( p.51)
DeGrazia’s position faces the classical critique of many feminist writers in the field of reproductive justice. He is condoning a policy that makes abortion something that is available to those who can afford it and inaccessible to the poor. As Dorothy Roberts has argued ‘[f ]ar from being impartial, this view of reproductive liberty privileges the choices of the wealthiest and most powerful members of society’.2 And while it may fit with liberal arguments that frame abortion simply is an issue of privacy and a negative entitlement, it overlooks concerns for equality and social justice. And based on arguments that DeGrazia posits at other stages in this book it is clear that these are concerns that DeGrazia takes seriously in other spheres (eg, p.131 and p.209); so, why not in relation to abortion? DeGrazia’s position begs the question of how we should understand the nature of public funding. The account proposed by DrGrazia privileges a minority view in how public funds are allocated. He seems to posit this as a form of compromise. But what is the nature of this compromise? The views of the minority are the starting point for this policy rather than the rights of women as equal citizens. DeGrazia’s position means that the well-being of those with less wealth is being sacrificed in order to ease the feelings of those who lost the public debate over the legality of abortion. The compromise here does not restrict certain types of abortion as many indication-based statutes on abortion do by allowing abortion in only a specific class of cases (cf. the Abortion Act 19673, which regulates abortion in England, Scotland and Wales). Indication-based regulations create classes of cases in which abortion is more or less justified; for example, abortion in situations when a woman has been raped. Similarly, time-limit models show that there is a point at which the status of the foetus outweighs the needs of the pregnant woman. These regulatory models encompass different regulatory goals and values and so involve some level of compromise on these.4 But the ‘compromise’ that DeGrazia suggests means that a minority are allowed to thwart a decision that was made by the public—that abortion should be legally permissible. As such, it seems to me to create a system where the abortion J Med Ethics May 2015 Vol 41 No 5
Downloaded from http://jme.bmj.com/ on November 19, 2015 - Published by group.bmj.com
Author meets critics: response debate needs to be won twice—at a principled level of law and then at the practical level of accessibility. Public funds are just that—public. And the ‘public’ that DeGrazia is referring to is one that includes the majority view that abortion is permissible. Access to abortion can be understood as a public good in the way that access to other forms of healthcare is. It is the poor women who bear the brunt of ‘the insults and injuries’ of DeGrazia’s proposal; in the words of abortion provider Dr Willie Parker: ‘It’s the poor women who have to come here, who have to do the perp walk.’ii A final concern that I have is with DeGrazia’s model is who exactly is being represented. It fails to take a woman’s interest in controlling her body as a starting point for shaping a policy that places restrictions on her ability to act in certain ways. It instead takes as a starting point the feelings of those whose views were already over-ruled in the decision to make abortion legal. Poor women are being denied their agency and the right to construct themselves as full citizens. As Drucilla Cornell states, women’s ‘reproductive capacity has, throughout human history, been used to justify treatment of
ii
As quoted in John H. Richardson “The Abortion Ministry of Dr Willie Parker”. http:// www.esquire.com/ features/abortion-ministry-ofdr-willie-parker-0914 (accessed 28 Sep 2014).
J Med Ethics May 2015 Vol 41 No 5
us as less than persons’ and specifically under DeGrazia’s model women with less money are prevented from equivalent protection of their bodily integrity.5
Competing interests None. Provenance and peer review Commissioned; internally peer reviewed.
IS THIS A COMPROMISE OR LACK OF COMMITMENT? DeGrazia seems to view his position as one of compromise and something that is necessary in a liberal democracy. What is the nature of this compromise though? The situation that DeGrazia is condoning is one where although abortion may be theoretically permissible it is, in fact, beyond the reach of many; particularly many who may need it the most. This means it is, in fact, a situation where the will of the majority is thwarted in that although it is permissible abortion is not accessible for most. Ultimately, DeGrazia’s position highlights the failure of arguments from reproductive liberty to take seriously the interests and needs of women. DeGrazia’s model is one of disincentive. It allows for a system where abortion is permissible but difficult to access. As DeGrazia states very clearly, the status of the foetus is metaphysically uncertain. The status of women is not. And the social reality of lack of access to abortion care is a very real social fact. We should therefore err on the side of what is most likely and ensure that women have real access to safe and legal care. Acknowledgments Thanks to John Coggon, Adrian Viens, and Jeremy Williams.
To cite McGuinness S. J Med Ethics 2015;41:422– 423. Received 30 September 2014 Accepted 8 October 2014 Published Online First 4 February 2015
▸ ▸ ▸ ▸ ▸
http://dx.doi.org/10.1136/medethics-2013-101917 http://dx.doi.org/10.1136/medethics-2013-101956 http://dx.doi.org/10.1136/medethics-2013-101957 http://dx.doi.org/10.1136/medethics-2013-101958 http://dx.doi.org/10.1136/medethics-2014-102531
J Med Ethics 2015;41:422–423. doi:10.1136/medethics-2014-102048
REFERENCES 1
2 3 4 5
DeGrazia D. Creation ethics: reproduction, genetics, and quality of life. New York: Oxford University Press, 2012. Roberts D. Killing the black body. New York, Vintage Books, 1999:297. Abortion Act 1967. http://www.legislation.gov.uk/ ukpga/1967/87 Eser A, Koch HG. Abortion and the law. The Netherlands: TMC Asser Press, 2005:29. Cornell D. The imaginary domain. London: Routledge, 1995:37.
423
Downloaded from http://jme.bmj.com/ on November 19, 2015 - Published by group.bmj.com
DeGrazia on abortion law and policy Sheelagh McGuinness J Med Ethics 2015 41: 422-423 originally published online February 4, 2015
doi: 10.1136/medethics-2014-102048 Updated information and services can be found at: http://jme.bmj.com/content/41/5/422
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Articles on similar topics can be found in the following collections Ethics of abortion (158) Ethics of reproduction (296) Sex and sexuality (158) JME Author meets critics (37)
Notes
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Author meets critics: response
DeGrazia on abortion law and policy Sheelagh McGuinness INTRODUCTION In Creation Ethics, David DeGrazia deals with a range of questions that challenge our understanding of ethical reproduction.1 In this short commentary, I wish to focus on DeGrazia’s treatment of the ethics of abortion and specifically his views on whether abortion should be publically funded.
DEGRAZIA ON THE ETHICS OF ABORTION In Chapter 2, entitled ‘Prenatal Moral Status and Ethics’, DeGrazia outlines his views on the ethics of abortion. DeGrazia deals thoughtfully and in a nuanced way with the ethics of prenatal moral status and it is to his credit that he strives to give the fairest reading to a range of pro-life arguments. Aside from scholarly integrity, DeGrazia has a principled commitment to taking seriously those who believe that the foetus/embryo has moral status. His liberal pluralism regarding the permissibility of abortion means that ‘[u]nlike nearly every philosopher I know who holds a liberal view on prenatal moral status and/ or the ethics of abortion and embryo research’ he believes ‘that a broadly pro-life approach remains standing as a reasonable option’ ( p.43).1 Specifically, DeGrazia ends up endorsing the view that abortion is generally permissible but is it not necessary to publicly fund such care. DeGrazia’s arguments on the ethics of abortion rest on his defence of a tripartite framework for understanding prenatal moral status. The three prongs of this framework are: 1. A biological essentialist account of identity ( p.24).1 2. Sentience is a relevant criterion for moral status ( p.29).1 3. A form of the time relative interests argument whereby ‘a right to life depends on a strong interest in remaining alive’ ( pp.33–34).1 It is not the purpose of this commentary to engage in a critique of DeGrazia’s arguments on these points. Rather, the above is outlined so that the reader gets a sense of the basis of DeGrazia’s position. However, I would like to highlight the Correspondence to Dr Sheelagh McGuinness, School of Law, Centre for Health Law, Science & Policy, University of Birmingham, Birmingham B15 2TT, UK; [email protected] 422
fact that DeGrazia seems to accept at least some sense of there being ‘no uniquely correct view’ ( p.45)1 when it comes to the permissibility of abortion, as there are a range of reasonable views about prenatal moral status. Once DeGrazia has set out these arguments he moves on to a more applied critique of abortion law and policy and it is on this I would like to focus my criticism of his position.
DEGRAZIA ON ABORTION LAW AND POLICY DeGrazia’s position can be summarises as saying that ‘The principle that people should not be coerced on the basis of reasonably rejectable philosophical or religious doctrines rules out as illegitimate the prohibition of early abortion. That principle does not rule out as illegitimate restrictions on late abortion, however, or public funding of abortion. Nor does it require these things — whatever the democratic majority decides is legitimate’. Suppose DeGrazia is right that a Rawlsian principle of public justification would rule out as illegitimate the prohibition of early abortion, but does not require any particular policy on public funding. If this is correct, the question of public funding is to be settled not by appeal to the idea of public reason, but by appeal to more familiar considerations about interests, justice, equality, and autonomy. DeGrazia offers a case against public funding of abortion based on concern for the interests of pro-life citizens in not contributing financially to a practice which they find morally abhorrent. I believe, however, that that case is both implausible, and inconsistent with what he says shortly afterward on stem cell funding and prenatal genetic interventions.i Let me start by outlining DrGrazia’s views on the funding of abortion, which result from his views about abortion and reasonable disagreement. He argues that:
i
Thanks to Jeremy Williams for the helpful discussions and suggestions. For a detailed critique of Rawlsian public reason and abortion see Jeremy Williams, Public Reason and Prenatal Moral Status. Journal of Ethics, forthcoming. He argues that Rawlsian public reason is far more permissive of abortion than is often presumed.
The pro-life community is a substantial minority of persons whose views are not unreasonable and who have to tolerate very permissive policies on abortion. From the standpoint of their sensibilities, it likely would seem to add insult to moral injury to have to pay for abortions with public funds. ( p.51)
DeGrazia’s position faces the classical critique of many feminist writers in the field of reproductive justice. He is condoning a policy that makes abortion something that is available to those who can afford it and inaccessible to the poor. As Dorothy Roberts has argued ‘[f ]ar from being impartial, this view of reproductive liberty privileges the choices of the wealthiest and most powerful members of society’.2 And while it may fit with liberal arguments that frame abortion simply is an issue of privacy and a negative entitlement, it overlooks concerns for equality and social justice. And based on arguments that DeGrazia posits at other stages in this book it is clear that these are concerns that DeGrazia takes seriously in other spheres (eg, p.131 and p.209); so, why not in relation to abortion? DeGrazia’s position begs the question of how we should understand the nature of public funding. The account proposed by DrGrazia privileges a minority view in how public funds are allocated. He seems to posit this as a form of compromise. But what is the nature of this compromise? The views of the minority are the starting point for this policy rather than the rights of women as equal citizens. DeGrazia’s position means that the well-being of those with less wealth is being sacrificed in order to ease the feelings of those who lost the public debate over the legality of abortion. The compromise here does not restrict certain types of abortion as many indication-based statutes on abortion do by allowing abortion in only a specific class of cases (cf. the Abortion Act 19673, which regulates abortion in England, Scotland and Wales). Indication-based regulations create classes of cases in which abortion is more or less justified; for example, abortion in situations when a woman has been raped. Similarly, time-limit models show that there is a point at which the status of the foetus outweighs the needs of the pregnant woman. These regulatory models encompass different regulatory goals and values and so involve some level of compromise on these.4 But the ‘compromise’ that DeGrazia suggests means that a minority are allowed to thwart a decision that was made by the public—that abortion should be legally permissible. As such, it seems to me to create a system where the abortion J Med Ethics May 2015 Vol 41 No 5
Downloaded from http://jme.bmj.com/ on November 19, 2015 - Published by group.bmj.com
Author meets critics: response debate needs to be won twice—at a principled level of law and then at the practical level of accessibility. Public funds are just that—public. And the ‘public’ that DeGrazia is referring to is one that includes the majority view that abortion is permissible. Access to abortion can be understood as a public good in the way that access to other forms of healthcare is. It is the poor women who bear the brunt of ‘the insults and injuries’ of DeGrazia’s proposal; in the words of abortion provider Dr Willie Parker: ‘It’s the poor women who have to come here, who have to do the perp walk.’ii A final concern that I have is with DeGrazia’s model is who exactly is being represented. It fails to take a woman’s interest in controlling her body as a starting point for shaping a policy that places restrictions on her ability to act in certain ways. It instead takes as a starting point the feelings of those whose views were already over-ruled in the decision to make abortion legal. Poor women are being denied their agency and the right to construct themselves as full citizens. As Drucilla Cornell states, women’s ‘reproductive capacity has, throughout human history, been used to justify treatment of
ii
As quoted in John H. Richardson “The Abortion Ministry of Dr Willie Parker”. http:// www.esquire.com/ features/abortion-ministry-ofdr-willie-parker-0914 (accessed 28 Sep 2014).
J Med Ethics May 2015 Vol 41 No 5
us as less than persons’ and specifically under DeGrazia’s model women with less money are prevented from equivalent protection of their bodily integrity.5
Competing interests None. Provenance and peer review Commissioned; internally peer reviewed.
IS THIS A COMPROMISE OR LACK OF COMMITMENT? DeGrazia seems to view his position as one of compromise and something that is necessary in a liberal democracy. What is the nature of this compromise though? The situation that DeGrazia is condoning is one where although abortion may be theoretically permissible it is, in fact, beyond the reach of many; particularly many who may need it the most. This means it is, in fact, a situation where the will of the majority is thwarted in that although it is permissible abortion is not accessible for most. Ultimately, DeGrazia’s position highlights the failure of arguments from reproductive liberty to take seriously the interests and needs of women. DeGrazia’s model is one of disincentive. It allows for a system where abortion is permissible but difficult to access. As DeGrazia states very clearly, the status of the foetus is metaphysically uncertain. The status of women is not. And the social reality of lack of access to abortion care is a very real social fact. We should therefore err on the side of what is most likely and ensure that women have real access to safe and legal care. Acknowledgments Thanks to John Coggon, Adrian Viens, and Jeremy Williams.
To cite McGuinness S. J Med Ethics 2015;41:422– 423. Received 30 September 2014 Accepted 8 October 2014 Published Online First 4 February 2015
▸ ▸ ▸ ▸ ▸
http://dx.doi.org/10.1136/medethics-2013-101917 http://dx.doi.org/10.1136/medethics-2013-101956 http://dx.doi.org/10.1136/medethics-2013-101957 http://dx.doi.org/10.1136/medethics-2013-101958 http://dx.doi.org/10.1136/medethics-2014-102531
J Med Ethics 2015;41:422–423. doi:10.1136/medethics-2014-102048
REFERENCES 1
2 3 4 5
DeGrazia D. Creation ethics: reproduction, genetics, and quality of life. New York: Oxford University Press, 2012. Roberts D. Killing the black body. New York, Vintage Books, 1999:297. Abortion Act 1967. http://www.legislation.gov.uk/ ukpga/1967/87 Eser A, Koch HG. Abortion and the law. The Netherlands: TMC Asser Press, 2005:29. Cornell D. The imaginary domain. London: Routledge, 1995:37.
423
Downloaded from http://jme.bmj.com/ on November 19, 2015 - Published by group.bmj.com
DeGrazia on abortion law and policy Sheelagh McGuinness J Med Ethics 2015 41: 422-423 originally published online February 4, 2015
doi: 10.1136/medethics-2014-102048 Updated information and services can be found at: http://jme.bmj.com/content/41/5/422
These include:
Email alerting service
Topic Collections
Receive free email alerts when new articles cite this article. Sign up in the box at the top right corner of the online article.
Articles on similar topics can be found in the following collections Ethics of abortion (158) Ethics of reproduction (296) Sex and sexuality (158) JME Author meets critics (37)
Notes
To request permissions go to: http://group.bmj.com/group/rights-licensing/permissions To order reprints go to: http://journals.bmj.com/cgi/reprintform To subscribe to BMJ go to: http://group.bmj.com/subscribe/
