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Does Abortion Benefit the Fetus? A Critique of Himma Part 2

December 24th, 2009 by Matt

In my previous post, Does Abortion Benefit the Fetus? A Critique of Himma Part 1, I discussed Kenneth Einar Himma’s argument that even if a fetus is a human being, laws permitting feticide are compatible with the harm principle.I elaborated an important objection to Himma’s argument, an objection articulated by Mark Murphy, which appeals to the common law doctrine of novus actus interveniens. In this post I will address three objections that Himma has made to this line of criticism to his argument.

Objection 1: Inevitability

One objection Himma makes to Murphy’s line of critique is to point out that there is an important disanalogy between Murphy’s illustration of the Good Samaritan and a person who aborts an innocent fetus. If a person aborts a fetus, it is logically inevitable that God will confer eternal life upon the fetus,

If God has resolved to confer eternal life upon moral innocents who die, eternal bliss is the inevitable outcome… Indeed there is no logically possible world in which a perfect God has made such a decision and acted contrary to that decision on any single instance.[1]

On the other hand,

Even if we knew that (1) the Samaritan would appear at the crime scene and (2) the traveller would have a transformative response to being rescued, we have no reason to think it inevitable, in any meaningful sense, that the Samaritan will rescue the traveller. Though it might be very unlikely that the Samaritan would do so, it is none the less possible.[2]

Himma’s point is that in the case of the Good Samaritan the benefits conferred upon the traveller were not logically inevitable; it was possible that the Samaritan would not rescue the traveller. This is why in this case we do not claim that the robbers benefited the traveller. In the case of abortion, however, salvation is inevitable.

This seems mistaken. First, it is not true that it is logically inevitable that abortion will result in the fetus receiving eternal life. If we are talking in terms of logical possibilities, as Himma is, then it is possible for the fetus to be aborted and yet not gain eternal life. It is possible for the abortion to be botched and for the fetus to survive; it is possible for the fetus to miraculously survive or to be risen from the dead post-abortion. These outcomes are very unlikely but they are, nonetheless, possible.

Secondly, the fact that it is possible that no rescue will be enacted by the Samaritan seems to have no bearing on whether the robbers are said to have harmed or benefited the traveller. Consider an analogous case that Himma himself mentions, the case where doctors perform a preventive mastectomy to prevent the development of breast cancer. Himma take this as an obvious case where a doctor benefits his patient. However, in this case the result is not logically inevitable. It is possible for the doctor to botch the operation and even if he did not it is possible that the patient would not have contracted cancer anyway. Moreover, if the patient had contracted cancer, it is possible that the cancer would miraculously disappear even if it was contracted. However, none of these possibilities led us to suggest that a doctor who performs such surgery does not benefit the patient. So it is hard to see why our judgement, that the robbers do not benefit the traveller but rather harm him or her, depends upon the mere possibility that the Samaritan will fail to carry out a rescue.

Objection 2: Equivocation between Harm and Blame

Himma’s second objection is to contend that the doctrine of novus actus interveniens “conflates two questions:

(1) The conceptual question as to whether A should properly be characterised as harmful; and,

(2) The normative question of whether the agent should be praised or blamed for A.[3]

Himma notes that these two questions are not the same thing; a person can, in certain circumstances, be punished for benefiting a person, such as when he performs life saving surgery on another person without their consent. Similarly, a person can be non-culpable for certain harms they accidentally inflict. Himma goes on to assert,

as far as our conceptual and moral practises are concerned it is uncontroversial only that the intervening act of a free agent insulates the performer of some proceeding act from moral responsibility of the consequences; it is not uncontroversial that the intervening act of a free agent necessarily figures into whether a proceeding should be characterised as beneficial or harmful.[4]

This response again seems irrelevant. First the fact that it is “not uncontroversial that the intervening act of a free agent necessarily figures into whether a proceeding should be characterised as beneficial or harmful” [emphasis added] is hardly an argument against this claim. Himma’s own argument is, after all, not uncontroversial but that fact alone does not suffice to refute it.

Secondly, I think the examples I cited previously do suggest that the intervening act of a free agent do factor into whether an action is characterised as harmful. Consider the example I cited from Augustine; it is not, in this case, that we think the person who refused to commit adultery actually killed the suicide victim in an innocent, non-culpable fashion; rather, our intuition is that the person did not kill the suicide victim at all.

Thirdly, in the context of the harm principle, it is unclear that the distinction Himma draws here carries much relevance. The harm principle, after all, is a principle about what actions the criminal law should punish by law and it requires that one should only punish harmful actions. In this context it seems the question then of what harms we can justly be punished for is the relevant question.

Objection Three: The Argument from Sharm

This brings us to Himma’s last objection. This involves granting Murphy’s point that the fetus is not benefited by the abortion but instead reformulating the harm principle in terms of what he calls “the sharm principle.”

I could respond simply by defining a new concept and reformulating the harm principle to include that concept in the following way. First, define sharm as follows: act a is sharmful to another person P if and only if a harms P and a does not make logically inevitable some benefit that would, from the standpoint of P’s self interest, infinitely out-weigh the harm to P from a. Second define the sharm principle as follows: the state may legitimately criminalise those acts that are sharmful to others.[5]

I will say two things in response to this fairly creative move. The first is that as Himma has defined his terms it does not entail that abortion should be permitted. For abortion to be permitted it would have to be the case that it does not sharm the fetus and this would be the case only if abortion makes it “logically inevitable” that the fetus will gain eternal life. But it does not. Even if the woman has an abortion it is logically possible for the fetus to not die. It is logically possible for the surgery to be botched or for the fetus to miraculously live or for God to raise the fetus from the dead post-abortion. Of course none of these things are terribly likely but they are logically possible and hence the outcome of fetal salvation is not logically inevitable.

Secondly, Himma’s move here seems to me merely an ad hoc manoeuvre. He has stipulated that the harm principle be reformulated a certain way precisely to ensure it gives him the result of justifying abortion rights. Apart from this, there seem no independent reasons for accepting the reformulated principle. If this is so then his argument is circular. He adopts a principle because it fits a given moral conclusion and then he uses the principle to justify that conclusion. Moreover, not only is there no independent reason for accepting the sharm principle, I contend that there are good reasons for not accepting it. This is because the sharm principle entails that infanticide should be permitted.

Himma himself anticipates and tries to circumvent this; he notes that his argument “ would justify a law permitting infanticide,” he notes, “since infants are no more capable of sin than fetuses, it follows, according to this line of analysis that, that premature death is also infinitely benefits an infant by providing her with a free pass to heaven.”[6] The sharm principle would then entail that women have a right to commit infanticide. Himma grants that this implication would constitute a reductio ad absurdum of his position but argues that he can avoid endorsing laws in favour of infanticide by focusing “on the harmful effects of allowing infanticide.” He contends,

On this line of reasoning, societal tolerance for killing of even new born infants would diminish the respect we have for human life in general and hence would be likely to increase the rates of violent crime. Thus, allowing infanticide, even in limited circumstances would have psychological effects that are likely to result in an increase in violent crime against people who are morally culpable and hence are at risk of damnation.[7]

Himma thinks this is likely because of the “physical similarities between infants and older adults.”[8] He maintains that “our ethical judgements about and behaviour towards non-infants are shaped in part by our ethical judgements about infants because of the physical similarities between the two.”[9] The basic idea here is that because infants look like adults (that is, they are physically similar to mature adult human beings) a development of an ethic justifying the killing of infants will, as a matter of human psychology, lead to increased killing of older human beings. For this reason infanticide is harmful and so should not be permitted.

I find this rejoinder implausible for two reasons. First, if it is sound then an analogous line of reasoning can be made with regard to fetuses. Fetuses, after all, from fairly early on in the pregnancy, physically resemble human being. Boonin notes that there is “a general consensus that the fetus is recognisably human after six weeks, and certainly after eight.”[10] If, as Himma claims, rules against killing adults require us to prohibit the killing of beings which look like and physically resemble human beings, despite the fact that they lack a grasp of moral concepts, then it follows that there should be prohibitions on killing fetuses from at least eight weeks gestation (most abortions are performed 8-12 weeks gestation).

The second and more serious problem, however, is that the argument relies on a questionable premise. Himma thinks that because infants physically resemble adult human beings, human psychology means that the allowing of killing one will inevitably lead to the killing of another. Unfortunately he provides no empirical evidence for this claim; he simply asserts it as being true. It is unclear however that it is true. Sociological studies show that historically most cultures widely practiced and endorsed infanticide throughout history.[11] It was the rise of Judeo-Christian and Islamic beliefs about homicide that led to Westerners having a divergent attitude. However, there does not appear to be any evidence that these pre-Christian cultures were any more violent towards adults than Christian societies were. Moreover, one can think of plenty of examples where people have been able to deprive rights of a class of human beings and seek passionately the welfare of another class of human beings despite the fact that the class “resemble people physically.” For centuries people enslaved Africans and did not enslave Caucasians, despite the fact that the Africans and Caucasians physically resemble each other. People have treated women in ways they would never have treated men, despite the fact that men and women physically resemble each other in numerous respects. Jews were put in gas chambers and fellow Germans were not. Human societies appear quite capable of depriving one class of people of their rights and exalting the status of another class, despite the fact that the two are physically similar. Prima facie, Himma’s psychological claim appears dubious.

Himma then cannot, it seems, consistently permit abortion and rule out infanticide on the grounds he gives. In fact, I am inclined to think that the implications of his position go even further than merely permitting infanticide. If the sharm principle is correct, it would follow not just that infanticide is permissible but that the killing of any human being who lacks moral culpability is permissible. However, it is not just infants and fetuses that lack moral culpability, as Himma himself notes, mentally retarded adults lack moral culpability for their actions. Similarly, the laws of most countries recognise that even up to their early teens, children are not moral agents who can be held culpable for their actions. Hence, it is difficult to see why Himma’s argument does not commit one to permitting the killing of not just fetuses but also infants, children and mentally retarded people. If a moral principle clashes so violently with our pre-theoretical intuitions as this one does, and there is no independent reason for accepting it, then I submit we have good reasons for rejecting it.

[1] Kenneth Einar Himma “Harm , Sharm and One Extremely Creepy Argument: A Reply to Mark Murphy” 21:2 Faith and Philosophy (2004) 251.
[2] Ibid.
[3] Ibid, 252.
[4] Ibid.
[6] Kenneth Einar Himma “No Harm, No Foul: Abortion and the Implication of Fetal Innocence” 19:2 Faith and Philosophy (2002) 186.
[7] Ibid, 187.
[9] Ibid, 187-188.
[10] David Boonin A Defense of Abortion (Cambridge: Cambridge University Press, 2003) 95.
[11] See Lalia Williamson “Infanticide: An Anthropological Analysis” in Infanticide and the Value of Life ed M Kohl (New York: Prometheus Books, 1978) 61-73.

Does Abortion Benefit the Fetus? A Critique of Himma Part 1

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7 responses so far ↓

  • Failure to distinguish one’s own actions from the entire sequence of events often leads to great evils.

    Presuming on the grace of God to justify wicked behaviour has a long history, but that good may or will eventuate from an action has long been condemned as false justification (Romans 3:8).
    .-= My last blog-post ..Herod’s slaughter of the innocents =-.

  • You wrote that “it is difficult to see why Himma’s argument does not commit one to permitting the killing of not just fetuses but also infants, children and mentally retarded people.”

    It’s even broader than that. The idea that murder victims will enjoy a delightful afterlife, as long as they were basically morally good and/or doctrinally sound Christians, could be used to justify killing huge numbers of people. Suppose your sister confides in you that she is tempted to commit a sin that you believe will endanger her chances at Heaven. Are you permitted to kill her – indeed, do you have a duty to kill her – before she can go through with it?

    The argument presented offers nothing interesting as specifically regards moral guidance on abortion. Instead, it demonstrates the strange conclusions made possible when we have the epistemic arrogance to assume we know anything about the afterlife and the hubris to assume that other people’s eternal abode is under our control.

  • Himma’s argument was from the beginning clearly stupid….
    Speaking of David Boonin, I will like to point out a potentially fatal hole in his sentience criterion argument. Boonin try to circumvent Don Marquis argument by making an ingenuous distinction between an “occurent ” desire and a “dispositional” desire argument.
    – the dispositional desire cannot be one that can be entertained by a cow or a dog. This mean that is it is a desire requiring higher mental function distinctive of a fairly mature human being.
    – let us call such a dispositional desire ‘X’.
    – clearly, to entertain X, one has to exercise a mental capacity ‘Y’ that is distinctive in KIND from that of another animal and having reached a DEGREE of development ‘Z’.
    – It clearly does not make sense to speak of a dispositional desire X of an entity A which, though it has a capacity Y, if that capacity Y has not reached a degree of development Z at which point A can then form such a desire X. For us to speak, like Boonin, of a dispositional desire X of A, A must have immediately exercisable capacity that can form such a desire. In other words, one cannot get something from nothing.
    – Comatose patient do not have such immediately exercisable mental capacity, hence cannot be said to have such a dispositional desire.
    – Infants and newborn do not have a defective capacity like the comatose. Instead their disctintively human mental capacity has not reached a level Z of development. Hence infants and newborn can’t entertain such a desire X immediately and speaking of a desire X in infants and toddlers’ case is hence nonsense.
    – Note that a mental capacity Y progress in its development from a stage a,b,c,d…,x,y,z. Hence, the potentiality for entertaining a desire X exist from stage a . It is not the fact that the “organized brain” of a 25 week fetus can entertain a desire
    that provides the fetus with the potential to eventually entertain a desire X. Instead, it is the fetus’ human nature that causes it to
    develop an “organized brain” and eventually a mental capacity capable of entertaining a desire X. The “organized brain” stage of development, say stage Y, is but one stage in a continum. Why that much development and not less or more (Y+) is morally relevant is an unanswerable question if arbitrariness is barred.
    Hence the distinction so ingenuously construed by Boonin has no bite.

  • MarkL, thanks for your interesting comments on Boonin, they raise another angle I had not thought of.

    I agree that Boonin’s argument fails, you may be interested in a critique of Boonin I had published in the Journal of Ethics and Medicine, a slighty abridged version of this article is here and
    .-= My last blog-post ..Top 10 NZ Christian Blogs – October 09 =-.

  • As for the “ideal desire” nonsense- it suffers the same fate as the “dispositional desire”. Indeed, Boonin can plausibly say that – as the cognitive capacity of entity A is hindered or distorted by (a) lack of information, (b) illness (depression), etc- A can only form a “distorted desire” whereas if A was fully rational and informed, A would have entertained an “ideal” desire, an ideal desire being “the content of a desire corrected to account for distorting and unfavourable circumstances”.
    However, in the case of the brain-damaged comatose and of infants, the capacity to form such an ideal desire absent “distorting influences and unfavourabe conditions” is simply lacking. There is nothing that hinders the formation of ideal desires in the comatose and the infant for there is no capacity to form such evolved desires in the first place. If Boonin is ready to speak of ideal desires in the infant and the comatose, why not in the case of dogs and cows for they too lack the capacity to form such desires. Note that Boonin cannot recoil back onto a “potential” to,in the future, form ideal desires in the case of infants and the comatose for he explicitly need to assert that ideal desires are possessed right now so as not to hold company with Singer,Tooley and al. If Boonin wish to go down the road of “potentiality”, fair enough, for then he will have to acknowledge that even the one second-old embryo possesses the radical capacity to form ideal desires, like the infant and the man in a reversible coma as the capacity to form ideal desires stems from who we are.
    Anyway, the whole desire-as-presonhood-criterion is a mere jest in question-begging for the capacity to form desires is nothing but one stage of a continuum of development: why that much development and not more or less is morally significant is a virtually unanswerable question if one is to avoid reasoning in a circle.

  • By the way, i have read your critique of Boonin and- surprise- we see that Boonin is engagaing in the usual ad-hoc argumentation. Anyway, by giving importance to desires, you allow your opponent to beg the question: why is the possession of so-called higher desires morally significant at all.