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.

What: STAANZ Conference on Eschatology and Pneumatology
When: Thursday 19 November – Friday 20 November 9:00am-5:30 pm
Where: Ponsonby Baptist Church, 43 Jervois Rd, Auckland
Cost: $15

Pre-conference prayer will be held at 8:00am at All Saints in Ponsonby, 284 Ponsonby Rd, Auckland.
Dinner at a local restaurant will be organised for the Thursday night.

Speakers are as follows: [UPDATED]

Thursday
“Holy Spirit in the theology of Walter Kasper” – Hugh Bowron
“Backgrounding Walter Kasper’s Early Thought”- John Dunn
“Wandering between two worlds: 19th Century Reflections on Hope and Hell” – Carolyn Kelly
“Conscious Awareness of the Spirit in Symeon the New Theologian” – Jim McInnes
“Searching for Embers” – Susan Adams & John Salmon

Friday
“Abortion, Harm and Eschatology” – Matthew Flannagan
“Infant Salvation: Is God’s Mercy Enough?” – Myk Habets
“Participatory Glory : The Eschatological Direction of Karl Barth’s Theology of the Cross”— Rosalene Bradbury
“The Spirit and Longing” – Judith Brown
“Filioque, Personhood and Ecclesiology” – Scott Kirkland

The abstract for Matt’s topic “Abortion, Harm and Eschatology” is as follows:

In No Harm No Foul: Abortion and the Implications of Fetal Innocence Kenneth Einar Himma offers what I shall call ‘the eschatological argument for abortion rights.’ Himma argues that because a fetus lacks the mental capacity to be culpable for any sin, a plausible Christian eschatology entails that a person who kills a fetus does not actually harm the fetus. Instead feticide benefits the fetus by sending the person killed straight to the afterlife, thus avoiding the possibility of any risk of future sin and consequent damnation. Given abortion does not harm the fetus, and as one should only legally proscribe harmful actions, it follows that abortion should be considered a woman’s right. In this paper I will criticise the eschatological argument for abortion, arguing it has absurd implications that entail infanticide and killing the disabled. Further, that even if one grants the eschatological assumptions implicit in Himma’s critique, abortion does, in fact, harm the fetus.

Whilst Matt’s paper will find its way onto this blog, it is always nicer to hear it delivered in person so if you are free Friday morning he will be delivering it from 9:00-10:00 am.