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.
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.
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.
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.
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.
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.” 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.
Himma thinks this is likely because of the “physical similarities between infants and older adults.” 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.” 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.” 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. 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.
 Kenneth Einar Himma “Harm , Sharm and One Extremely Creepy Argument: A Reply to Mark Murphy” 21:2 Faith and Philosophy (2004) 251.
 Ibid, 252.
 Kenneth Einar Himma “No Harm, No Foul: Abortion and the Implication of Fetal Innocence” 19:2 Faith and Philosophy (2002) 186.
 Ibid, 187.
 Ibid, 187-188.
 David Boonin A Defense of Abortion (Cambridge: Cambridge University Press, 2003) 95.
 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