The first is that the typical arguments in favour of abortion succeed only if it is assumed from the outset that feticide is not a form of homicide. A couple of examples will illustrate this. It is frequently asserted that women have a right to do whatever they like with their own bodies. This assertion is false. Women do not have a right to do whatever they like with their bodies; no one has such a right. Women cannot use their bodies to rape or commit homicide or set fires. The right to do as we please is limited by the morality of our actions, thus whether abortion falls into the category of an action we are free to choose depends on whether feticide is homicide. If it is, then this argument fails but as currently used it is just assumed that it is not.

Some might object that such an interpretation is an uncharitable reading of this contention. What is important from this perspective is that all people have a right to control what happens inside or to their own bodies. I have a right to control what happens to mine and you have a right to control what happens to yours. Hence, provided the decision I make does not involve me using your body in a way that you do not consent to then I have a right to do it. However, implicit in this argument is the claim that a fetus, at least until born, is part of a woman’s body, that it is not a separate, bodily-living, human being on its own. However, this claim is erroneous. To suggest that a fetus is part of a woman’s body entails that the mother of a male fetus has two heads, four arms and a penis. Once again this argument is successful only if one assumes a fetus is not a human being from the outset because if the fetus is human then it too has a right to not have its body harmed.

The infamous illegal “back-street” abortion argument fares no better. The allegation that “hundreds” (I put this in scare-quotes because actually the figures show it was significantly a lot less than this) of women died from illegal abortions can justify legalisation only if feticide is not homicide. If it is homicide then this argument reduces to the bizarre assertion that we should kill eighteen thousand children each year in order to prevent “hundreds” of women from harming themselves by breaking the law.

Typical consequentialist arguments also fail. Abortion prevents unwanted children who are likely to be poor, abused or engage in crime. It is hailed as a solution to over-population and the existence of more handicapped people. It prevents adult and teenage women from falling into economic hardship and stress. It enables them to complete their education, pursue their careers. However, all this is equally true of infanticide. Infanticide prevents the existence of unwanted children and their associated social costs, lowers the population, prevents the handicapped existing and saves women and teenagers from the economic and emotional stresses of parenthood. Yet infanticide, as convenient as it is, is condemned because it is homicide. Again, all these arguments assume that the fetus is not human without actually arguing for it.

This is not to say feticide can never be unjustified. Utilising the justification of self-defence, I think a case can be made for feticide where pregnancy constitutes a threat to a woman’s life or perhaps in cases of rape (space prevents me elaborating the casuistry here). Such cases are extremely rare and make up less than 0.5% of all cases (according to figures compiled by the Abortion Supervisory Committee). So, if feticide is homicide, the vast majority of abortions lack justification. To defend permissive abortion laws on these grounds is a bit like allowing people to murder on demand on the grounds that there exist rare cases of justifiable killing in self-defence.

My second point is the claim that feticide is homicide has considerable prima facie plausibility. Consider this scenario. A hunter is in the woods and notices some rustling in the bushes. Looking through his scope he sees a six-foot high, bi-pedal being with brown hair, blue eyes, wearing a swann-dri. He refrains from shooting. Here, the hunter makes the sensible and reasonable judgment that in firing he would risk engaging in homicide. He bases this on what the target looked like. In the absence of reasons for thinking otherwise he has good grounds for this claim. However, “[there is] a general consensus that the fetus is recognisably human after six weeks, and certainly after eight” (D Boonin A Defense of Abortion (2003) 95). This fact, conjoined with the above illustration, entails that, in the absence of good reasons to the contrary, there are good grounds for thinking that feticide is homicide.

My final point is that good reasons to the contrary are not forthcoming. Here I will focus on three common examples starting with the fetus not being viable.

The fact that a fetus cannot survive independently of its mother does not mean it is not a human being. Fetal viability is contingent upon the medical technology of a given culture. A fetus that is not viable in Chad is viable in Los Angeles. If viability is necessary for something to be a human then a woman pregnant with a viable fetus in Los Angeles who flies from Los Angeles to Chad carries a human being when she leaves but this human being ceases to exist when she arrives in India and yet becomes human again when she returns (Peter Singer Writings on an Ethical Life (2000) 148).

Similarly, while the fetus lacks consciousness, lack of consciousness does not make a being non-human. If it did, then a human being ceases to exist when asleep or unconscious and then pops back into existence upon awakening. Shooting someone would cease to be homicide provided we render him or her unconscious first.

Appeals to fetal consciousness face other problems. David Boonin notes that those who attempt to ground humanity in the amount of brain development an organism has undergone face a dilemma. “Any appeal to what a brain can do at various stages of development would seem to have to appeal to what the brain can already do. Or to what the brain has the potential to do in the future.” (David Boonin A Defence of Abortion (2002) 125). Either option leads to problems for a defender of the permissibility of feticide who does not also want to endorse infanticide. This is because “by any plausible measure dogs, and cats, cows and pigs, chickens and ducks are more intellectually developed than a new born infant”.(Boonin, 121)

Suppose, then, that one takes the first horn of the dilemma and appeals to what the brain can already do. However, unless one wishes to affirm that “dogs, and cats, cows and pigs, chickens and ducks” are human beings then “appeals to what the brain can already do” will “be unable to account for the presumed wrongness of killing toddlers or infants.”

Suppose, then, one takes up the second horn and appeals to “what the brain has the potential to do in the future.” Boonin notes that this will entail that feticide is homicide. “If [such an account] allows appeals to what the brain has the potential to do in the future, then it will have to include fetuses as soon as their brains begin to emerge, during the first few weeks of gestation.”(Boonin, 121)

Finally, while it’s true that fetuses are not ‘persons,’ where person is defined as “a thinking, intelligent being that has reason and reflection and can consider itself as itself, the same thinking being, in different times and places,” (J Locke Essay Concerning Human Understanding) neither are newborn infants. In fact, a newborn cow is more person-like than an infant is. The price of a cogent pro-abortion argument is the reduction of newborn infants to the ethical level of cows. It is difficult to understand, on this view, why killing a newborn infant is any more problematic than killing a calf.

In summation, except for a few rare cases, abortion is justified only if feticide is not homicide. However, there are good prima facie grounds for thinking feticide is homicide and these prima facie grounds are not overridden by reasons to the contrary. Jointly, these contentions demonstrate that feticide constitutes unjustified homicide, and, hence, should not be a practice that is tolerated or sanctioned by the state.

I write a monthly column for Investigate Magazine entitled Contra Mundum. This blog post was published in the January 10 issue and is reproduced here with permission. Contra Mundum is Latin for ‘against the world;’ the phrase is usually attributed to Athanasius who was exiled for defending Christian orthodoxy.

Letters to the editor should be sent to: editorial@investigatemagazine.DELETE.com

RELATED POSTS:
Is Abortion Liberal? Part 1
Is Abortion Liberal? Part 2
Sentience Part 1
Sentience Part 2
Viability
Abortion and Child Abuse: Another Response to Farrar
Abortion and Brain Death: A Response to Farrar
Abortion and Capital Punishment: No Contradiction
During, Sherwin & Hutchison on Backstreet Abortion
Imposing Your Beliefs onto Others: A Defence
Boonin’s Defense of the Sentience Criterion: A Critique Part I
Boonin’s Defense of the Sentience Criterion: A Critique Part II

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.
[5] 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.
[8] Ibid.
[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.

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

In Is Abortion Liberal? I suggested that one cannot simultaneously affirm the harm principle, accept that a fetus is a human being, and support permissive abortion laws. If abortion is homicide then it harms a human being, and the harm principle entails that we should prohibit harmful actions.

Kenneth Einar Himma contests this conclusion. Himma argues that even if one grants that a fetus is a human being, feticide (the killing of a fetus) does not harm the fetus. Consider the doctrine of final punishment which is articulated in chapter 33 of The Westminster Confession of faith.

I. God hath appointed a day, wherein he will judge the world in righteousness by Jesus Christ, to whom all power and judgment is given of the Father. … all persons, that have lived upon earth, shall appear before the tribunal of Christ, to give an account of their thoughts, words, and deeds; and to receive according to what they have done in the body, whether good or evil.

II. The end of God’s appointing this day, is for the manifestation of the glory of his mercy in the eternal salvation of the elect; and of his justice in the damnation of the reprobate, who are wicked and disobedient. For then shall the righteous go into everlasting life, and receive that fullness of joy and refreshing which shall come from the presence of the Lord: but the wicked, who know not God, and obey not the gospel of Jesus Christ, shall be cast into eternal torments, and punished with everlasting destruction from the presence of the Lord, and from the glory of his power.

Himma suggests that, to be plausible, this doctrine should be interpreted so that human beings who lack moral culpability, are saved directly by Gods mercy.

Insofar as culpability presupposes moral knowledge, someone who lacks moral knowledge through no fault of her own is incapable of culpability and is hence exempt from divine punishment. Thus, for example, someone who instantiates a severe cognitive disability is saved without regard to either her behaviour or her attitude towards Christian doctrine. Such a person is saved no matter how she behaves or what she believes.

The same is true of children before they have developed the capacity for moral reasoning. Such persons are incapable of culpability in either deed or belief and, as Abelard puts the point, “Are saved without merit of their own, as for instance, infants, and attain eternal life by grace alone.”¹

Himma is not alone in thinking this is the most plausible interpretation of this doctrine. Loraine Boettner, citing Charles Hodge, W. G. T. Shedd, and B. B. Warfield, notes “most Calvinistic theologians have held that those who die in infancy are saved,”² these theologians, “entertained a charitable hope that since these infants have never committed any actual sin themselves, their inherited sin would be pardoned and they would be saved on wholly evangelical principles.”³

The implication for feticide is obvious; fetuses have not yet developed the capacity for moral reasoning, hence, according to the Eschatological doctrines Himma has sketched, “fetuses that die before birth are, as a matter of moral necessity, saved without regard to personal merit”⁴ hence they are “as a matter of moral necessity saved without regard to personal merit.” Himma contends that abortion does not harm the fetus but, in fact, benefits it;

It can plausibly be argued that premature death conduces maximally to the fetus’s self-interest. To see this, imagine yourself in the following situation. While in the womb, you are temporarily made fully rational and offered the choice between premature death and the opportunity to live a worldly life. The choice is expressed as follows. Should you choose a premature death, you will immediately experience a profound and eternal bliss – an ecstasy beyond any possible in this world. Should you choose an opportunity to live a worldly life, you will be judged at the end of your life for your deeds and beliefs. If you are judged favorably, you gain eternal bliss; if not, you will suffer eternal torment. You are also told there are many temptations that may lead you down a path that culminates in an unfavorable judgment so that the risk of such torment at the end of your worldly life is substantial. Finally, you are told that, after having made our choice, you will forget everything you have been told. Assume that you have no idea whatsoever of what your post-natal circumstances will be. What should you do? ⁵

Himma suggest that a rational person would choose to be killed. This is because “the odds of a favourable judgment after a worldly life are probably not in [anyone’s] favor.”⁶ He notes that if the probability of a favourable judgment is “less than 1. The smallest chance of an unfavorable judgement”⁷ is multiplied by an infinite cost. Whereas any benefits one gains from a worldly life will be finite.

Consequently, even if one grants that a fetus is a human being, traditional Christian eschatology entails that a fetus is not harmed if it is killed via an induced abortion. The harm principle, however, affirms that the state should permit, and people should have a legal right to engage in, any activity that does not harm another person; consequently, there should be a legal right to procure an induced abortion.

Novus Actus Interveniens Objection

Mark Murphy has argued that Himma’s argument errs by suggesting that the thesis of infant salvation entails that fetuses and infants are not harmed by being prematurely killed. He writes,

If the fetus enjoys the beatific vision upon being aborted … the fetus’ enjoying that good is caused not by the agent’s act of aborting the fetus but by God’s graciously conferring the gift of eternal life on the child. For not every good or evil that occurs downstream from an act counts as a benefit or harm conferred by that act. This is particularly clear in those cases in which the benefit or harm would not have occurred but for some agent’s free intervention. That the causal chain from act to effect is broken by the intervention of a free agent is a standard view, both in common sense’s attribution of responsibility and in the law’s.⁸

Murphy illustrates the point with an example,

If … a traveler is beaten and left for dead by robbers, is rescued by a Samaritan, and by this transformative experience comes to have a much better life than he or she would otherwise have had, it is nevertheless incorrect to say that the robbers did not harm, or even benefited, the traveler. The robbers merely harmed the traveler; the Samaritan benefited the traveler.⁹

Murphy here appeals to the common law doctrine novus actus interveniens. He notes that there is a difference between what a person causes and what one foresees will be caused by others in response to what one does. In a discussion of the doctrine of double effect, utilised in post-reformation Catholic casuistry, Donagan suggests that Catholic and Kantian ethicists,

… and in general, all moralists who accept the freedom of the will in a non-combatibilist sense, limit an action’s effects, and a fortiori what its agent intends to bring about in doing it, to those that follow from it in course of nature and the ordinary operation of social institutions, and from the free reactions of others to it. (Thus actions in the ordinary course of business, for example, those of postal officers in delivering a letter that has been mailed, are not counted as free reactions.) The principle on which they do is that a free reaction to an action, is a ‘new action’ (‘novus actus’), the effects of which are their effects, and not those of the action to which they are reactions.¹⁰ [Emphasis added]

Donagan does note that another person’s actions can be considered an effect of one’s actions if they follow in the ordinary operation of social institutions. For example, if I mail poison to another person and this kills him or her then I have killed him or her despite the fact that numerous other people’s actions intervened between my action of placing the poison in the mailbox and the person’s death. This is because social institutions are in place whereby the mail service acts as an agent on my behalf and such institutional rules mean that my actions can be attributed to it.¹¹ For similar reasons, taking out a contract to kill another is culpable homicide because the institution of contract means that the killer kills on my behalf and hence I act in his or her actions. In the absence of such institutions, the free actions of others to my actions are not effects that I cause. Donagan notes that in some situations¹² a person is culpable of wrongdoing if he does something which he foresees will be met with an immoral action on the part of others. However, he does not cause these actions.

I think this is plausible. Augustine proposed the following example. Suppose a man approaches a woman and tells her that he will kill himself if she refuses to have sex with him. Does that mean that she is a murderer if she refuses?¹³ Her refusal would not constitute homicide even though his death is a foreseeable result of her choice. Although she foresaw his or her death, she did not cause it. It was caused by the free decision of the tempter to commit suicide. Similarly, a company knows that some people will use the roads they build to engage in reckless conduct that will kill innocent people.

Applied to the context under discussion, a person who kills a fetus causes the evils inflicted on the fetus, such things as, damage to the fetus’s bodily integrity and deprivation of their earthly life. However, these actions do not cause the fetus to attain eternal life; this is brought about by the gracious mercy of God. Hence when a person kills a fetus they do not benefit it, they only cause it harm.

In my next post in this series I will argue that Himma’s response to this line of argument.

1Kenneth Einar Himma “No Harm, No Foul: Abortion and the Implication of Fetal Innocence” 19:2 Faith and Philosophy (2002) 179.
2Loraine Boettner The Reformed Doctrine of Predestination by Loraine Boettner The Presbyterian and Reformed Publishing Company (Philadelphia, PA; 1963) 143.
3Ibid.
4Himma “No Harm No Foul” 179.
5Ibid 180.
6Ibid.
7Ibid.
8Mark Murphy “Pro-Choice and Presumption: A Reply to Kenneth Einar Himma” 20:2 Faith and Philosophy (2003) 241.
9Ibid.
10Alan Donagan “Moral Absolutism and the Double-Effect Exception: Reflections on Who Is Entitled to Double-Effect?” 16 Journal of Medicine and Philosophy (1991) 498.
11This is not to say that an agent acting unknowingly, such as the mail-man, is culpable for this action only that his actions are attributable to me. If I therefore do this willingly, I am culpable for his actions on my behalf while he is not.
12Theses situations are ones where one incites, induces or persuades a person to engage in wrongdoing or where in “pursuing his legitimate ends, a man finds that several effective courses of action are open to him, each legitimate in itself , but one of which will be foreseeable be met with a wrongful action by somebody else.” Alan Donagan The Theory of Morality (University of Chicago Press, Chicago; 1979) 48-50.
13 Augustine On Lying 9.

The show runs for 30 minutes; in this episode I appear as a panel member (last time I was an audience member). Panelists are host, Setita Millar, Family First’s Bev Adair, National Party MP Paul Hutchison, Reverend Tavale Matai’a, Ula Sangyum, Cushla McNabb and moi!

A lot of the dialogue made the editing room floor, some of which was frustrating, and the conversation did stray more onto sex education – state v home – but it was still all good.

NOTE:
In this footage I make a comment stating I used the pill as a form of contraception. I wish to make it clear that on learning of the pill’s abortifacient properties (this applies to both the mini and combined pills) I ceased using it some years ago.

As a protestant I have no issue preventing conception. However, the pill permits conception but prevents implantation (often sneakily worded on your pill packet or by your doctor as “preventing pregnancy” where pregnancy is re-defined as beginning at implantation and not conception).  I reject the common protestant argument that because plenty of conceptuses fail to implant anyway it is ok to actually cause that to happen by taking the pill – if you view life beginning at conception this is like saying it is ok to shoot children in 3rd world countries because plenty will die of hunger and disease anyway.

We’ll put a link up on this blog to the online video of the show when it becomes available tomorrow.

The panel features Dr Paul Hutchison, MP for Hunua and former member of the Abortion Supervisory Committee; Bev Adair, spokesperson for Family First, Reverend Tavale Matai’a, a couple of other women and Madeleine. In tonight’s episode Madeleine features as a panel member (last week she was an audience member who asked a question) so she gets a lot more speaking time (assuming she makes it past the editing room).

The show runs for 30 minutes; in this episode Madeleine features as an audience member  (panelists are Bev Adair, Paul Hutchison, Reverend Tavale Matai’a) and she goes a round with the Member of Parliament for Hunua, Dr Paul Hutchison. (Originally she went two rounds with him but her second spiel, where she dealt to his inadequate response to her question, only got as far as the editing room.)

In the next episode, Madeleine actually is a panel member and she gets a lot more speaking time. The second episode will air Tuesday 15 December at 7:30pm on Triangle TV also on Stratos (Freeview 21 & Sky Digital 89) on Wednesday 16 December at 8pm or you can catch it here next Wednesday.

Anyway, enjoy and feel free to make use of the button that permits you to make a comment to the show.

The episodes will also be aired on Stratos (Freeview 21 & Sky Digital 89) tomorrow (Wednesday 9 December) at 8pm and the following Wednesday at the same time.

The panel features Dr Paul Hutchison, MP for Hunua and former member of the Abortion Supervisory Committee; Bev Adair, spokesperson for Family First, Reverend Tavale Matai’a, a couple of other women and me! In tonight’s episode I feature as an audience member and go a round with Dr Hutchison. Next week, I am a panel member.

I have no idea how it will run. Panel discussions are frustrating because you cannot hit everything and you have to manage to get everything you want to say out cohesively in the little snippets of time you do get but nevertheless is was fun filming it!

Recommended Reading:
During, Sherwin & Hutchison on Backstreet Abortion

No one denies that if abortion is not made legal, safe, and accessible in our society, women will seek out illegal and life-threatening abortions to terminate pregnancies they cannot accept. Antiabortion activists appear willing to accept this cost, although liberals definitely are not; feminists, who explicitly value women, judge the inevitable loss of women’s lives that results from restrictive abortion laws to be of fundamental concern.[2]

In similar vein Dr Zoe During, former President of the Abortion Law Reform Association of New Zealand (ALRANZ), in a debate with the me, gave a paper entitled “Is Abortion Justifiable: An Examination of the Evidence”, in which she argued,

But the majority of women, poor women, have had to go to backstreet practitioners or swallow dubious potions or use knitting needles on themselves. Attempting illegal abortion by such means has always been dreadful and dangerous and greatly increased maternal mortality.

The World Health Organisation estimates that worldwide there are 20 million abortions each year, half or more being illegal, these causing up to 78,000 maternal deaths and hundreds of thousands of disabilities. A New York statistic is illuminating. For the three years before abortion became legal in that state, the maternal death ratio averaged 51 per 100,000 live births. For each of the three years immediately following legalisation it dropped to a mere 38, and there was the additional bonus of a 5% reduction in the neo-natal mortality rate. Thus not having access to legal abortion unjustifiably kills mothers and babies, while legalising abortion saves lives.[3]

During’s argument rests upon three contentions:

(a) That prohibiting feticide results in the death of women.
(b) That (a) entails that prohibiting feticide kills women.
(c) That killing of thousands of women in these circumstances is unjustifiable.

Firstly, this is an argument not to the conclusion that feticide is permissible but rather that it should not be a criminal action. The fact (if it is a fact) that there are reasons why an act should not be a criminal offence does not entail that the act is morally permissible. Strictly speaking, this argument is compatible with the position that feticide is morally wrong. However, even as an argument for decriminalisation it is unsound.

Many debates swirl around (a). As the citation shows During bases her conclusion on statistics from the World Health Organisation (WHO) and an un-referenced study about mortality in New York. These statistical claims are vigorously debated in the literature,[4] however, for our purposes this debate can be set aside. More interesting, I think, are the normative premises encapsulated in (b) and (c). If these are mistaken, the argument as a whole is unjust regardless of any merits of (a).

Regarding premise (b) During appears to think that if passing a law results in the death of large numbers of women then to pass such a law is to kill these women. This is false. It is an empirical fact that building motorways results in innocent people dying, yet it does not follow that a person who builds a road kills innocent people. It is also a fact that by allowing people to swim at beaches some people will drown yet in permitting people to swim at beaches the government cannot be said to have drowned these people. Even if it could be demonstrated that restricting feticide results in women dying it does not follow that such restrictions kill women.

During fails to distinguish between an action that foreseeably results in a person’s death and an action that causes that person’s death. Suppose that Parliament were to criminalise feticide and this led to a chain of events one of which was the death of a woman due to septic abortion. Somewhere in this chain, between the act of the legislature and the death of the woman, are the free actions of various people who choose to ignore or breach these laws. Parliament does not perform these actions; in fact they are done in defiance of Parliament’s will and hence without Parliament’s consent. Such actions include the choice of a woman to violate the law and procure an abortion and the choice of an abortionist to perform an abortion and to violate hygiene and safety standards. The death and injury that occurs is caused by these actions. It is the abortionist’s decision, acting as an agent of the woman, to perform unsafe surgery that causes the injury to occur. These facts make it evident that Parliament does not cause such deaths. The actions of the woman and abortionist are un-coerced. They are free, voluntary actions and as such not caused by someone else. It follows immediately that they were not caused by the state. If they were not caused by the state, then the effects that follow from them were not caused by the state either. The suggestion that one causes the free (and hence uncaused) reactions of others to decisions one makes is far fetched.

The failure to distinguish caused and foreseen effects is illustrated well by Augustine. In contending with the consequentialists of his day, Augustine proposed the following example. Suppose a man approaches a woman and tells her that he will kill himself if she refuses to have sex with him. Does that mean that she is a murderer if she refuses?[5]

One response to this kind of rejoinder is to claim that a woman’s choice is not free; rather it is made out of desperation and anguish. She feels compelled to abort given the psychological and economic pressures she faces. Three responses can be given to this argument.

Firstly, even if it is granted, the same cannot be said to be true of the abortionist and given that it is the abortionist’s actions that kill the woman, the fact that these are uncaused entails that Parliament cannot have caused them either.

Secondly, even if the woman’s actions were not free but caused in some way it does not follow that Parliament caused them. In some circumstances other people, such as the man’s decision to have intercourse and then to not support her or the family’s refusal to help, caused this desperation. Given that these actions are free, then Parliament cannot be held to have caused these either.

Thirdly, making the claim that a woman was not free to refuse an abortion makes this argument less plausible. Abortion is often trumpeted as a woman’s free choice. If this claim is correct then how can women be coerced into such an operation against their consent? Further, it seems odd to claim that we should legalise forced abortions.

Turning to (c), this claim is plausible only if it is true that feticide is not homicide. If feticide is homicide then to permit feticide is to permit homicide. Not only will the failure to permit feticide result in human beings dying, permitting it will also result in human beings being killed. If, as During contends, endorsing a rule that results in deaths is wrong then it will also be wrong to permit feticide.

It is worthwhile noting that the numbers of fetuses killed by legal abortion is significantly higher than the number of women killed by illegal ones. At its highest, the number of women who died from illegal abortion in New Zealand in any one year was 37.[6] The number of fetuses destroyed by legal abortion in New Zealand annually is approximately 18,000.[7] Moreover, according to the stats During cited from WHO, there are around 10 million legal abortions per year and 78,000 deaths resulting from illegal ones.[8] If we follow the argument During offers, then we are permitting the killing of 10,000,000 human beings per year to avoid killing 78,000 human beings.

During’s argument in favour of feticide is sound only if feticide is not homicide. However, if feticide is homicide she is arguing that in order to prevent thousands of people from harming themselves we should kill millions of people; a claim that on the face of it is absurd.

This absurdity is not unique to During; the same thing can be said about the arguments offered by Sherwin and Hutchinson.

[1] Susan Sherwin “Abortion a Feminist Perspective” in Ethical Issues in Modern Medicine ed Bonnie Steinbock & John D. Arras (Mountain View CA: Mayfield Publishing Co, 1999) 361.
[2] Ibid.
[3] Zoe During “Is Abortion Justifiable?” New Zealand Rationalist Humanist Spring (1999) 10-11.
[4] The debates on this issue are documented in Francis Beckwith Politically Correct Death: Answering the Arguments for Abortion Rights (Grand Rapids MI: Baker Books, 1993) 54-59.
[5] Augustine On Lying 9.
[6] Wayne Facer Criminal Abortion in New Zealand: Public Health Consequences; this study was distributed by the Abortion Law Reform Association of New Zealand in the 1970’s. Facer was an outspoken proponent of decriminalising abortion.
[7] New Zealand Abortion Supervisory Committee Report 2008.
[8] These figures are not current.

RELATED POSTS:
Is Abortion Liberal? Part 1
Is Abortion Liberal? Part 2
Sentience Part 1
Sentience Part 2
Viability
Abortion and Child Abuse
Abortion and Brain Death: A Response to Farrar
Abortion and Capital Punishment: No Contradiction
Imposing Your Beliefs onto Others: A Defence
Boonin’s Defense of the Sentience Criterion: A Critique Part I
Boonin’s Defense of the Sentience Criterion: A Critique Part II

Last week I finished my studies for 2009 with my Legal Ethics exam and enrolled to complete the final two papers of my LLB (bachelor of law) in 2010. This week Matt handed in his final piece of assessment for his post graduate diploma in teaching and I re-entered the workforce! … Kinda.

My pre-car-accident (neck injury) employer phoned me out of the blue last week to offer me a small job. They have a project that needs doing, they don’t have anyone spare who can do it and so they thought of me.

So cool!

:-)

They have set it up so there is no need for me to do the drive into work (which can be a good hour or more at the wrong time of the day) I can work from home. They have supplied me with a lap-top so I can work in my bean bag. Its all flexi-hours to get around the bad pain days/parts of the day. It basically works that as long as I finish the project by the specified date I can break the hours down into manageable chunks.

So I have been thoroughly enjoying myself this week working! The whole thing will be over by Dec 10 but hey it beats sitting around being unproductive!

In other news I am apparently appearing on a TV panel tonight to discuss parental notification/consent on abortion with Dr Paul Hutchison – MP for Hunua, Bev Adair – Spoke person for Family First, the Principal of either Tangaroa College or Kelston High and the Rev. Tavale Mataia. The show will apparently air on Triangle TV on Tuesday night at 7.30pm also on Wednesday nights at 8pm on Sky Digital channel 89 and on Freeview channel 21.

Then of course tomorrow Matt will give his paper “Abortion, Harm and Eschatology” to the STAANZ conference. On Sunday I am not only attending Filia Day‘s wedding but I am doing the makeup for her 4 bridesmaids and then the weekend after that Matt and I are flying to wellington to attend the Wellington Bloggers Drinks and to speak at the All for Life Conference.

[i] His own account appeals to only to one property of an individual to explain the wrongness of killing;
[ii] Marquis account however appeals to two properties; and,
[iii] Appealing to one property is more parsimonious than appealing to two.

Premises [i] and [iii] are correct, Boonin appeals to only one property—that of having an ideal desire to live. Moreover, it is correct that appealing to one property to explain something is more parsimonious than appealing to two. The crucial premise here is [ii], Boonin states that Marquis’s account appeals to two properties to explain the wrongness of killing. Boonin characterises Marquis as holding to the following proposition.

If an individual P has a future-like-ours F and if either (a) P now desires that F be preserved, or (b) P will later desire to continue having the experiences contained in F (if P is not killed), then P is an individual with the same right to life as you or I.23

Unfortunately, Boonin provides little justification for this interpretation of Marquis. His claim relies on two citations from Marquis’s work. The first comes from Marquis’s paper, “Why Abortion is Immoral,” where Marquis states,

When I am killed, I am deprived both of what I now value which would have been part of my personal future, but also of what I would have come to value, Therefore when I die I am deprived of all the value of my future.24

On the face of it, this citation suggests Marquis does understand a future of value in the way Boonin suggests. He understands a future of value to consist of both what one presently values and what one will come to value. The problem with this interpretation is that, as Boonin himself notes, later in the same essay Marquis explicitly repudiates this understanding. He states, “we desire life because we value the goods of this life, The goodness of life is not secondary to our desire for it.”25 Marquis concludes, “It is strictly speaking, the value of a human’s future [rather than the human’s future valuing of it] which makes killing wrong on this theory.”26 At best then, the evidence from Marquis is ambiguous, and at worst, he explicitly rejects the position Boonin attributes to him.

Boonin’s second citation of Marquis is from a more recent paper, “Reply to Shirley.”27 In this paper Marquis had previously been challenged to “produce an account of what it would mean to say that an individual’s future is of value to him.”28 Here Marquis’s answer is:

Consider some class of individuals at t1. Consider the hypotheses that those human individuals have a future of value of them at t2. Verify this by asking those individuals at t2 whether they believe their lives are worth living at t2 . Those who answer in the affirmative have a future of value at t1.29

Boonin takes this citation as offering support for his interpretation of Marquis. He seems to think that Marquis suggests here that what constitutes a future of value is either that one now desires it or will come to desire it. This is dubious. Nowhere in this quote does Marquis say anything about a present desire and a future desire; it states merely that a person has a valuable future if they would at a future time consider their life worth living. Moreover, it is unclear whether Marquis considers this to constitute what a future of value is or whether it confirms that someone has one. In a later article, Marquis suggests that the former is correct as follows,

How does killing victimize them? It harms them. Killing harms its victims by depriving them of all of the goods of life that they otherwise would have experienced. In other words, killing them deprives them of their futures of value. Their futures of value consist of whatever they will or would regard as making their lives worth living.30

Here Marquis construes a future of value in terms of what a person will, in the future, regard as worth living. Boonin then rests [i] on insufficient evidence.

Interestingly in his most recent article, Marquis makes it clear that he does not hold to the conjunctive account Boonin attributes to him. He states that his account,

[M]akes reference only to the value of one’s future, not to the value of one’s present or past. Accordingly, the lack of parsimony that Boonin find in the future of value account is really a function only of Boonin’s statement of that account of the wrongness of killing, not the account itself. Because there is no good reason to include present desires in the statement of the future of value account, other than for the purpose of rejecting the account on grounds of parsimony, I shall discard the unwieldy locution of present or future desires and refer the to the account Boonin rejects as a future of value account.31

Boonin’s argument here appears to attack a straw man. Premise [ii] is false and without [ii] Boonin’s parsimonious argument is unsound. Both Boonin and Marquis appeal to a single property.

Salience
Boonin’s second argument is that his account is more “salient.”32 By this he means that “it enables us to account for the prima facie wrongness of killing by understanding killing as one instance of a more general category of acts that are prima facie wrong: acts that frustrate the desires of others.”33 In support of this, Boonin cites a case of Hans who “has been dumped by his girlfriend and has plunged into a deep depression. He can think about nothing else and has no desire to go on living.”34 Boonin suggests that his account makes sense of this case in a straightforward manner. Hans would desire to live if he thought about his future rationally with full information in the absence of distorting influences like depression. On the other hand, he suggests that Marquis’s future of value account does not account for the case of Hans in a straightforward manner: “on [Marquis’s] account, the wrongness of killing is not explained by appealing to a feature that accounts for the wrongness of a more general class of wrongful actions. The wrongness of killing however becomes an anomaly.”35

This objection, like the previous one, appears to be based on a misinterpretation of Marquis’s position, as Marquis points out:

The future of value account makes killing Hans wrong for the same reason it is wrong to kill almost all other human beings. To kill Hans is to make him worse off than he otherwise would have been. To make him worse off than he otherwise would have been is to harm him.

On the future of value account the wrongness of killing is based on the harm of killing. A present action cannot affect one’s past. Strictly speaking, a present act of harming does not make another worse off in the present either, for the present is instantaneous and harm, involving, as it does, causation, requires at least a small temporal interval for its effect to occur. A present act of harm affects the victim’s future. It makes someone worse off in the future. To make someone worse off is to reduce that person’s welfare, to reduce the quantity or quality of the goods in his future that she would otherwise have possessed. On the future of value account killing is wrong because it harms a victim.36

Marquis’s account, then, “enables us to account for the prima facie wrongness of killing by understanding killing as one instance of a more general category of acts that are prima facie wrong,”37 that is, the category of acts that harm others. Moreover, I am inclined to think Marquis’s account provides a more plausible category of acts than that of Boonin’s. It seems to me far more obvious that killing is wrong because it harms another than that it is wrong because it prevents someone from doing something in the future that they presently desire to do.

However, there is a way of reading Boonin that leads to the conclusion that both he and Marquis understand killing as a subclass of the duty not to harm others. It is common in the literature to define an individual’s welfare in terms of what they would ‘ideally desire’. Philosophers such as Richard M. Hare and Richard Brandt for example have defined welfare in this way. Consider Marquis’s claim, “To make someone worse off is to reduce that person’s welfare, to reduce the quantity or quality of the goods in his future that she would otherwise have possessed.” If Boonin is understood as adopting an ideal account of welfare, then to reduce a person’s desires is to frustrate their ideal desires. On this reading, both accounts are equally salient. Both understand killing as harming a person and reducing his or her welfare, they simply disagree as to how welfare is defined.

Counter-examples
Boonin’s third argument is that his account “is able to account for a counter example that Marquis’s version is unable to account for.”38

[C]onsider, the case of Hans’ even more depressed brother, Franz. Like Hans, Franz does not currently value his personal future even though, as also in the case of Hans, his personal future contains many of the sorts of experiences that we take to be distinctively valuable. Due to a permanent and irreversible chemical imbalance in his brain, however, Franz is, and will always remain, completely unable to value the experiences that he has. Although he has a future-like-ours, he has no actual occurent desire to preserve it and he never will have such a desire.39

Regarding this case Boonin suggests three things:

[i] That it would be wrong to kill such an individual;
[ii] That Marquis’s account entails that it is not wrong to kill such a person; and,
[iii] That his own account, the ideal desire account, entails it is wrong to kill such a person.

Curiously, in his most recent article Marquis concedes [ii]; he grants that his account does have this implication but he suggests that [i] is false.40 I think this move is unnecessary on Marquis’s part. By citing this as a counter example, Boonin assumes that Marquis holds that possession of a future of value is a necessary condition for possessing a right to life. This assumption is false. In Why Abortion is Immoral, Marquis made it clear that he was contending that a possession of a future of value was only a sufficient condition for possessing a right to life. Given this, it is simply false to claim that it is permissible to kill a person who lacks a future of value. All it affirms is that it is wrong to kill those who have such a future.

Elsewhere, Marquis has argued there can be good reasons for extending the rule against homicide to cover those who do not have futures of value.41 While it may be true that an individual act of killing a person does not harm them, deprive them of a future of value, social endorsement and acceptance of a rule allowing such killing will harm people and, hence, for this reason, a rule against killing in situations like this is justified.

Boonin does have a possible reply to this response, while Marquis’s account does not entail it is permissible to kill Franz, it fails to account for the wrongness of killing Franz and needs to be supplemented in order to succeed. Hence, if Boonin’s account can explain killing in this context, his account is better. The crucial question then is whether [iii] is correct. Is it the case that Boonin’s account does entail that it is wrong to kill Franz? Boonin argues that it does.

[O]n the “present ideal dispositional desire” version of the future like ours principle, things look very different. For surely Franz’s desires about his personal future would include the desire that it be preserved if his desires were formed in the absence of the chemical imbalance that prevents him from having this desire. Although he has no actual desire to go on living, that is, it does make sense to attribute this desire to him as an ideal desire. And given this, my version of the principle implies that Franz does have the same right to life as you or I. . . . [M]y version of the future-like-ours principle is superior to Marquis’s.42

Here I think Boonin conflates two separate questions. The first is the question of what Franz’s ideally rational self would choose for itself (i.e., the ideally rational Franz), and what Franz’s ideally rational self would choose for Franz’s actual self (i.e., his non-ideally rational self).43 If one asks the former question, then Boonin is correct; Franz would not choose to die. Franz’s ideally rational self would not suffer from depression and so would not desire to die.
The answer to the second question is not so clear. Here we ask what an ideally rational self would choose if it knew that it would in fact have a future filled with miserable suffering and depression and be unable to enjoy any of the experiences that lie ahead. It is certainly not obvious that an ideally rational person would value a future made up of such circumstances.44

The question then arises as to which of these two questions is the appropriate one to ask. Carson argues that is the latter and not the former that is pertinent.

Suppose I have an irrational fear of dogs. A friend asks me to take care of his dogs while he is away on vacation. My ideally rational self would not fear the dogs and would not hesitate to look after them. Given my intense fear of dogs, however, things are likely to turn out badly if I look after the dogs. Why should I care that my ideal self wouldn’t be afraid of dogs? Wouldn’t it still be foolish for my actual self (with all of its phobias) to take care of the dogs? I might be incapable of adequately caring for them.45

Carson’s point is that something in a person’s future is not valuable to them if it is something their ideal self would choose for their ideal self; many such choices would be harmful to them. Only if ideal desires are understood in the latter sense can it be plausibly maintained that what a person ideally desires is valuable to them. On the face of it, then, it appears that Marquis’s account does not entail this counter example whereas Boonin’s account does, that is, at least if he intends his account to lay down both necessary and sufficient conditions needed for a right to life.46

At this point the defender of Boonin could make the following reply. Suppose one grants Marquis’s claim that there are good reasons for extending the rule against homicide to cover those who do not have futures of value. Presumably, a fully informed person would be aware of these reasons and, hence, Franz would, if fully informed, refuse to endorse a rule that allowed him to be killed. Franz would accept that his own future lacked value and was going to be miserable but he would also note that other people would be harmed if a rule allowing him to be killed were accepted and, hence, Franz would have an ideal desire not to be killed. If this response is cogent, then, one again, Boonin and Marquis’s accounts appear to be on par. Neither by themselves provide a reason for why it would be wrong to kill Franz and both can account for the wrongness of killing Franz when supplemented with Marquis’s other arguments on the topic. Boonin’s contention that his account provides a better explanation of the wrongness of killing appears mistaken. Both Boonin and Marquis’s accounts explain various paradigms of unlawful killing. Both appeal to a single property in doing so, “possession of a future of value.” Both explain killing in terms of reducing a person’s welfare and hence harming them. Both, by themselves, do not provide an explanation of why it is wrong to kill Franz and both can explain this when supplemented with the same further argument. The main difference between Boonin and Marquis is how they construe a ‘future of value’. Boonin understands this in terms of a future one has, a present ideal desire to preserve one’s future. Marquis understands this in terms of a future one will come to actually value in the future. The only other differences between them, at least on the factors Boonin cites, is that one entails that a fetus is human and the other does not. If one is to prefer one to another on the grounds Boonin provides, one can do so only by appealing to one’s beliefs about feticide. It seems, then, that Boonin has failed to provide a reason that is not itself “merely an ad hoc device for reaching the conclusion the defender of [sentience criterion] wishes to reach.”

Boonin’s Conclusion
A precisely analogous problem occurs when Boonin applies the modified FLO to the issue of feticide. Suppose, for the sake of argument, I grant that the modified FLO account provides necessary and sufficient conditions an organism must meet to posses a right to life. Why does it follow that a fetus does not posses a right to life? While it is true that fetuses lack actual desires to preserve their FLO’s, it is not at all clear that fetuses lack an ideal desire to do so. Marquis plausibly suggests that “If a fetus were rational and fully informed, it would desire to live” and concludes, “It follows that fetuses have an ideal desire to live.”47 Boonin takes exactly this line with infants. While infants lack the cognitive capacity to have any actual desire to exist, they have a right to life because they would have such desires if they were fully rational and able to engage in higher cognitive activities. Why can the same not be said of pre-sentient fetuses?

Boonin’s response is to define ideal desires a particular way. He states that “ideal desires . . . are simply the content of actual desires corrected to account for the distorting influences of imperfect circumstances.” 48 Once this definition is granted, it follows that only beings with actual desires can have ideal desires. And hence only a sentient fetus can have a right to life. This is however precisely where the problem arises. There are rival definitions of ideal desires proposed in the literature and, as Marquis points out,49 Boonin gives little or no argument for adopting this particular definition. Moreover, nothing in his arguments for the modified FLO account requires this particular definition of ideal desires to be adopted. This last point is important. Boonin makes use of ‘ideal desires’ to avoid various counter-examples to the desire account of the wrongness of killing, and he argues for the modified FLO account on the basis of its ability to plausibly explain certain paradigms of wrongful killing. However, nothing in this line of argument requires Boonin to adopt one definition of ideal desire over another. Almost any definition of ideal desires on offer will get around the counter examples aforementioned and most such accounts will explain the paradigms Boonin appeals to. Consequently, Boonin’s argument appears arbitrary. He recommends his account on the grounds that it explains various cases better than a rival account which he assumes is the best available.

However, there are other versions of the modified FLO account available which utilize other definitions of ideal desires, these accounts explain the cases equally as well as Boonin’s does. Some of these other versions entail that a fetus does have ideal desires. In the absence of some reason for preferring Boonin’s account over the others, the only factor that seems pertinent in deciding which version is correct is the accounts’ implications for feticide. It seems then that person’s beliefs about feticide will do most if not all the work in deciding which version to adopt. Once again, it appears that Boonin has failed to provide a reason that is not itself “merely an ad hoc device for reaching the conclusion the defender of [sentience criterion] wishes to reach.”

Conclusion
In Boonin’s Defense of the Sentience Criterion: A Critique Part I, I noted that a defender of the permissibility of feticide who does not also want to endorse infanticide and who defends the sentience criterion must “identify a reason for holding that the potential of a human brain is morally relevant after” the fetus acquires sentience “but is not morally relevant before that point.” I also noted that this reason must be “not itself merely an ad hoc device for reaching the conclusion the defender of [sentience criterion] wishes to reach.”50 It appears this challenge has not been met. Boonin’s argument for the modified FLO and his application of it to the issue of feticide appears arbitrary. His account is plausible only if one grants that feticide is not homicide from the outset.51