Abortion Public Policy: What is the author's position and what is he/she doing with it? Why?HIP_91
ABORTION AND ARGUMENT BY ANALOGY
Lisa Sowie Cahill Boston College
The purpose of this essay is to examine the consistency and coherence of some arguments about abortion. Theological, philosophical, and public policy discussions of abortion are linked by the necessity of understanding the legitimate claims of the fetus on the woman who bears it, as well as on the larger human community. The tools of moral philosophy widely are employed, whether directly or indirectly, to evaluate abortion as one solution to problematic preg- nancies. In particular, theologians examining the problem of abor- tion from the standpoint of normative ethics find it necessary to take into account some of the seminal work in recent moral philosophy. However, the logic of the moral arguments adduced is not always given fully critical attention in either "pro-choice" or "pro-life" posi- tions, whether they be essentially religious, philosophical, or politi- cal in character.
One logical implement used broadly is the analogical argument. Burdensome pregnancy can be compared to other situations in which the duty of one individual to protect the rights of another either is sustained or is modified. Differences in evaluations of the morality of abortion can be clarified and perhaps reduced by probing the ways in which the morally significant features of fetal dependency, and of maternal and societal obligation, are partly revealed yet partly hid- den by the analogical mode of moral argument.
In recent discussions of abortion, especially those by philosophers advocating its justifiability, the method of analogy has been used to highlight the morally relevant features of killing a fetus. The claim often is made that to require a woman to complete a pregnancy against her will, particularly one begun without her consent, is to require her to bear a burden heavier than others would bè required to assume in analogous circumstances. Moral argument by analogy is, of course, not a new phenomenon, even in regard to abortion; one traditional Roman Catholic analogy likens the fetus to an "unjust aggressor."1 Among the more
^ h i s comparison, however, has never been endorsed by the magisteri um. For an exhaustive discussion of the history of this analogy and other elements of the abortion debate among Catholic theologians, see John Connery, S.J., Abortion: The Development of the Roman Catholic Perspective (Chicago: Loyola University Press, 1977).
Lisa Sowie Cahill received the Ph.D. (1976) from the University of Chicago Divinity School, with a dissertation on "Euthanasia: A Protestant and a Catholic Perspective.*' An Assis- tant Professor of Theology at Boston College (Chestnut HiJl, MA 02167) since 1976, her teaching and research interests are foundations and method in theological ethics, medical ethics, and sexual ethics. Articles in these areas have appeared in Religious Studies Review, The Journal of Medicine and Philosophy, Chicago Studies, The Journal of Reli- gious Ethics, and Theological Studies. She is an Associate Editor of The Journal of Religious Ethics and Religious Studies Review.
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notable, and more ingenious, new analogies to burdensome pregnancy are Judith Jarvis Thomson's "famous violinist" and "people seeds."2
Others who have commented on Thomson's comparisons or developed their own include Mary Anne Warren,3 Susan Teft Nicholson,4 Michael Tooley,5 and John Noonan.6
The purpose of this essay will be to indicate some of the assets and, especially, the liabilities of the analogical method in ethics, with special attention to the problem of abortion and to the more frequently cited analogies to it. Insofar as the analysis exposes this method's shortcom ings it will constitute a critique of some arguments favoring abortion as a resolution of conflictual pregnancies. However, its major objective is not to develop a final or definitive moral perspective on abortion, or on the use of analogy in ethics. Rather it is more generally to amplify both our perceptions regarding abortion and the adequacy of normative judg ments about it, and to improve our sense of the usefulness of moral warrants involving analogies.
I. Analogical Argument
The term "analogy" (άνχλογία) had for its original context the theories of the philosophers and mathematicians of ancient Greece, who used it to indicate a direct proportional relation, such as that between a number and its multiple. Although subsequent usage retained the sense of a likeness of relations, it also came to include the sense of a similarity between terms,7 so that the meanings now commonly associated with the term "analogy" are proportion and attribution. In the analogy of attribution, a comparison is made of two terms or analogates, to both of which is attributed a common property, the analogon. The analogon is primarily in one analogate, and only secondarily or by relation in the other. The property is thus attributed to both nonunivocally, i.e., in ways which are neither precisely the same nor yet simply equivocal or differ ent. The classic example (used by Thomas Aquinas) is "healthy" as
2 "A Defense of Abortion," Philosophy and Public Affairs 1 (1971), 47-66. 3"On the Moral and Legal Status of Abortion," The Monist 57 (1973), 43-61. 4Abortion and the Roman CathoJic Church (Knoxville, TN: Religious Ethics, Í978). 5"Abortion and Infanticide," PhiJosophy and Public Affairs 2 (1972), 37-65. 6"How to Argue About Abortion" in Contemporary issues in Bioethics, ed. Tom L.
Beauchamp and Le Roy Walters (Encino and Belmont, CA: Dickenson, 1974), pp. 210-16. Originally published by the Ad Hoc Committee in Defense of Life, 1974.
7 Frederick Ferré offers a concise introduction to the history and problems of analogi- cal argument and a short bibliography in The Encyclopedia of Philosophy, ed. Paul Edwards (New York: Free Press and Macmillan, 1967). Brief discussions may also be found in William L. Reese, The Dictionary of Philosophy and Religion (New Jersey: Humanities Press, 1980) and in the Dictionary of Philosophy, ed. Dagobert D. Runes (16th ed.; New York: Philosophical Library, 1960). George P. Klubertanz, S.J., gives a thorough discussion of Thomas Aquinas' use of analogy in St Thomas on Analogy: A Textual Analysis and Systematic Syntehsis (Chicago: Loyola University Press, 1960).
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applied to a person, to medicine, and to urine.8 It is used of a person in a state of health primarily, and secondarily of those things which create health or manifest it in the person.
In the analogy of proportionality, there is no direct relationship between the analogates themselves. There exists instead a relationship within or in respect to each of the analogates, and these relationships are similar, even though the analogates are dissimilar or incomparable to one another. The synoptic gospels attribute to Jesus the analogous com- parison of a rich man aspiring to the Kingdom of Heaven and a camel trying to move through the eye of a needle. Analogies often are intro- duced into theological discussions as a way to knowledge of God. It might be affirmed, for instance, that God's qualities are to God's nature (infinite) as human qualities are to a creature's nature (finite), even though the infinite and the finite are in themselves incomparable.
Frederick Ferré, in the Encyclopedia of Philosophy, notes that the two meanings of analogy are not clearly or entirely distinct. In a sense, the analogy of proportion or relation is rooted in an analogy of attribu- tion; we assume that relations will be similar because of a similarity in the terms to which the relations apply. We affirm that God's goodness is to God as humanity's goodness is to humanity because we assume a similarity between God and humans.
Analogies used in arguments about abortion are a case in point, for they generally combine the attributive and proportional meanings of analogy. The final result of the arguments about abortion which I intend to discuss is a spectrum of conclusions about proportionality: the mother is related to the fetus as an adult is to a baby, as a victim is to an unjust aggressor, as a perfect tissue match is to a violinist with failing kidneys, etc. The point of these arguments is that the mother has a right to protect herself from the demands of the fetus, or, conversely, an obligation to sustain it, which is in proportion to the analogous relation between the terms in the comparable pair. However, the presupposition of the argu- ment about proportional responsibility is a similarity of the fetus to the violinist, unjust aggressor, or baby; and of the mother to those persons to whom she respectively is compared. My critique will be premised upon the generally acknowledged fact that analogous ascriptions of qualities are by definition nonunivocal. As a result they afford positive but in- complete knowledge. The analogical approach to the abortion situation does afford some real grasp of its morally relevant elements, but it is
8The central Thomistic text on analogy is found in the Summa Theologiae I,Q. 13, a. 5. Thomas Aquinas was primarily interested in that similarity between God and his creatures which is due to their relation as cause and effect. Much subsequent analysis of analogy has been a commentary on his. Aquinas and his followers would maintain that some properties, such as being or goodness, can be attributed to God because they are evident in his creatures, who possess them by participation in the First Cause, who alone possesses them perfectly.
inadequate if taken alone, and thus stands in need of augmentation by more direct forms of analysis.9 I hope to advance the latter sort of analysis, though not to complete it, by considering some of the respects in which the relation of the mother and fetus may be incomparable.
II. Abortion and Analogy
The two crucial aspects of the abortion dilemma which analogies usually address are the status of the fetus in the human community, and the relation or duty of the mother (and others) to the fetus. This essay will focus on the latter aspect, rather than on the former question of "personhood."10 The precise status of fetal life is a pivotal but unsettled problem in the abortion controversy. Proponents of limited justifiability for abortion frequently argue that even if the full "human" or "personal" status of the fetus is granted, abortion still ought not be prohibited absolutely. Their premise is that the obligation of the mother to support the life of the fetus is a limited one. Analogies are employed to show why this is the case and where those limits lie.
A further comment about fetal status may help to clarify the follow- ing discussion, particularly in light of the fact that not all will agree that that status is fully personal from conception (i.e., in basic respects the same as that of postnatal human life). Those unwilling to grant this premise may still agree that at some time during gestation the fetus acquires full human value and rights. The abortion analogies which compare the fetus to a human person in other circumstances have force at least from that point onward. Once the fetus has full human status (whether from conception or later) the "dignity" or "sacredness" of its life, and hence its protectability, is as self-evident as that of any other person.
There is a further complication of the abortion discussion which ought not go unremarked, though it is not within the scope of this essay to resolve it. Some view the acquisition of value and rights by the fetus as a developmental process, during which a single definitive line may or may not be crossed. If one takes such a perspective, one might still
9Paul Camenisch also has addressed the issue of argument by analogy about abortion. He notes that dissimilarities in the primary and secondary analogates can obstruct the effectiveness of the analogy, and proceeds on the basis of his understanding of analogy to suggest that the position that the full value of human life emerges at conception is questionable. See his "Abortion, Analogies, and the Emergence of Value," Journal of Religious Ethics 4 (1976), 131-58.
101 have chosen the word "person" to represent human life which possesses full value or status in the human community, and thus is regarded as having basic human rights and protectability. It is my perception that the real controversy is not over whether the fetus is "human life," though that is how the debate is often phrased. Not many seriously mean to question whether the fetus is of the human species and is alive. The disagreement is instead over the exact status in the human community which human life occupies in its prenatal stages.
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perceive in the fetus's life some intrinsic value, perhaps considerable value, even before the decisive point or phase (or in the earlier stages of pregnancy, if there is no decisive line), even though in early pregnancy the fetus would not have a claim to protection equal to that of the mother. In such views, distinct moral arguments or analogies would have to be developed to account for the precise nature of moral obligation to the fetus during the time in which it is a protectable form of human life, but not yet one which has the full status of a human person. I intend to focus on those analogies to abortion which do regard the fetus as a human person; however, some of the remarks which I will make may also be relevant to any stage of pregnancy (e.g., remarks about the special nature of fetal dependency).
The difficulty in arriving at clear, commonly agreed upon descrip- tions of the morally relevant factors in abortion is notorious. Analogies have been used widely in addressing the problem of abortion precisely because it is not easily penetrable by rational analysis. Generally speak- ing, argument by analogy helpfully illumines those characteristics of morally problematic situations which are significant or decisive for choice. It does this through appeals to situations which are in important respects similar and in regard to which a reasonable moral consensus already exists. Thus analogies can both clarify those features of choice which might otherwise be overlooked in particular instances, and show the relevance of established moral principles which might assist in the resolution of conflicts which are either novel or under reconsideration.
Despite these advantages, argument by analogy also is hindered by intrinsic limitations, as we have seen. For one, the method inhibits consideration of, and occasionally even obscures, the distinctive or unique characteristics of the sort of choice primarily under considera- tion. In addition, analogous comparisons often involve connotative meanings as well as the denotative ones explicitly associated with the terms of the analogy. Even when these connotations remain implicit and undeveloped they nevertheless may be influential and even persuasive to judgment. These points will be specifically and substantially pursued in reference to the ethics of abortion.11
To the extent that our moral ''picture*' or any moral dilemma is narrowed by our method of apprehending it, our ethical response to it will be less than fully adequate. There are at least four interrelated ways in which analogies for harmful, unwanted pregnancy have functioned to circumscribe rather than enlarge our moral perspective on abortion.
"Credit and appreciation are due to graduate students who have contributed to this analysis, particularly Maureen Kemeza, Kathleen Stavely Fitzgerald, and Harold Miller, and to colleagues who read early drafts. Among these the most scrupulous was John Connery, S.J., whom I have no doubt not yet satisfied but from whom I have learned. Members of the American Academy of Religion Medical Ethics Working Group also criticized a version of this paper at our 1981 conference; one hearer, James T. Burtchaell C.S.C., was kind enough to provide an extended critique.
First, such analogies are often used to stress that the inception of pregnancy has an arbitrary character about it, and also to portray the fetus as alien or even hostile to the mother. Although these are logically distinct issues, they so frequently are associated in actual argument that they may be discussed together. It is true that conception is to an extent a random and unanticipated occurrence, particularly if subsequent to sexual intercourse which has been forced upon the woman, or in which one or both partners have availed themselves of contraceptive precau- tions. Even "planned" conception is not thoroughly predictable. Nonetheless, it must be questioned whether the arbitrary and incidental characteristics of the condition of pregnancy, and any incidental quality which properly can be attributed to the maternal-fetal relation, are deci- sive in understanding the situations of pregnancy and abortion. Analogies which portray intruders or at least strangers who break into, are forced into, or stray into, someone else's territory obscure the natural, essential, and intimate dependency of an intrauterine offspring on its maternal parent.
Judith Thomson likens pregnancy after rape to the situation of an individual who, having been kidnapped by the Society of Music Lovers, awakens to find himself or herself attached back-to-back in bed to a famous violinist suffering from renal failure and for whom the kidnapee is the sole matching blood type. Thomson appeals to the reader's sense of fair play to evoke agreement that even though detachment will mean death for him, the kidnapped individual has no obligation not to get up and depart, however commendable it might be for him or her to continue to render life support with his or her own body. Certainly a supporter of a famous violinist for nine months would be in a very extraordinary situation, one which we should not hesitate to characterize as unusual and extreme. It is only by unlikely and unlucky coincidence that this close yet onerous relationship with the musician exists at all. Further, the dependency in question is the result of abnormality and sickness, not a requirement of any normal path of organic health and development. We are thus liable to assess it as "intolerable" and oppressive and therefore to justify a refusal to permit it to continue.
Pregnancy after contraceptive failure is probed by Thomson via another bizarre scenario depicting persons as victims of circumstances largely beyond their control. Reproduction takes place via the sprouting of "people seeds" which float about out of doors and take root in rugs and upholstered furniture if not prevented from drifting into one's habitation. In the event of a conscientiously installed but defective window-screen, is one obligated to nurture a people-plant to maturity? Here pregnancy is pictured as a universal and accidental nuisance, the product of which has no special or intimate relation to the unfortunate in whose domain it roots.
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The case in which the life of the mother is at stake is compared by Thomson to an individual trapped in a very tiny house with a rapidly growing child who threatens to crush the adult, and to two persons quarrelling over a coat which belongs to one but which both need to keep from freezing to death. The two comparisons again represent the mother-fetus relationship as an accidental one, in which the woman has no particular obligation to the fetus over and above that which one might have to a needy stranger whom one is in a position to benefit only at tremendous cost to oneself.
In other instances, the dependent is characterized not merely as alien but also as decidedly hostile. Thomson analogizes to a burglar who enters a window by stealth. The earlier "unjust aggressor" image has similar implications. In traditional Roman Catholic ethics analogy is not as fundamental a mode of argument as it has been in some contemporary philosophical essays. Still, comparisons are not infrequently adduced to sort out controverted issues to which the applicability of agreed-upon moral principles is less than clear. Some nineteenth-century thinkers disputed whether the absolute prohibition of killing applied to the fetus as an "innocent person" in cases where the pregnancy endangered the life of the mother. Although the teaching authority of the Church never has promoted officially the position that there exists a "person" in the full sense from conception,12 the deliberate killing of what has been conceived generally has been viewed as a serious matter, both because it represents interference in the natural process of reproduction and be- cause the conceptus is of great dignity at least in view of its potentiality and destiny. While the Second Vatican Council avoids referring to the fetus as a "person", it enjoins, "From the moment of its conception, life must be guarded with the greatest care, while abortion and infanticide are unspeakable crimes."13 Nevertheless, while the life-threatening fetus certainly is not guilty of evil intent, or "formal" aggression, it might be considered guilty of "material" aggression in the same sense as an attacked who is insane or otherwise unaware of the likely results of his or her actions.14 Such analogies to assault serve simultaneously to protect
12John Connery, S.J., "Abortion and the Duty to Preserve Life," TheoJogicaJ Studies 40 (1979), 318.
""Pastoral Constitution on the Church in the Modern World" (Gaudiam et Spes), Art. 51, in The Documents of Vatican 11, ed. Walter M. Abbott, S.J. (New York: America Press, 1966), pp. 199-258. Among statements of the magisterium, that of Pope Pius XII makes the most direct reference to the "personhood" of the fetus: "The baby, still not born, is a man in thè same degree and for the same reason as the mother" ("Address to the Italian Catholic Society of Mid wives," Acta apostolicae sedis 43 , 839).
14Abortion: The Development of the Roman Catholic Perspective, esp. chs. 12-15. Daniel Viscosi, an Italian seminary professor, published in 1879 a defense of embryotomy in which, interpreting Tertullian, St. Thomas, and others, he proposes that the fetus could be considered an "unjust aggressor" both early and late in pregnancy (after "animation" as well as before it). This argument was later taken up by Joseph Pennacchi, another seminary professor, who published in 1884 a treatise on the ecclsiastical penalty for abortion, in
the mother and the fetus. As David Novak illustrates by the Jewish comparison of a fetus to a "pursuer," references to a victim-aggressor conflict imply that the fetus is to be killed if and only if there exists the gravest reason, i.e., threat to the mother's life.15
While the analogy to an attacker permits the consideration of the mother's right to self-protection when confronted with untimely death, it, like Thomson's examples, places the offspring in the role of an alien being who, with or without malice, now threatens another individual with equivalent and independent status in the human community. Knowledge of the biology of human reproduction remained remarkably confused until the nineteenth century. In light of theories that the sperm contains a minute preformed human ("homunculus"), which the womb merely receives and nurtures during maturation, it is credible to depict the fetus as "alien" to the pregnant woman. Given awareness of the maternal contribution to the physical being of the offspring, this cate- gory becomes more difficult to apply. Although the fetus's special rela- tion to the mother does not preclude her right to defense against it, its dependency on and physical derivation from her seem nonetheless to entail an obligation of the mother to act on its behalf, even to some extent of self-sacrifice (i.e., of interests less than life).
Other examples from the Catholic controversy, prolonged over sev- eral centuries, also compared the fetus to an obstruction to justice whose relation to the primary agent was unfortunate but incidental. The fetus was said to bear the same relationship to its mother as a child on a bridge over which a horseman escapes an attacker, or as a child which the aggressor grasps as a shield while pursuing the life of an innocent person.16 In neither case does the moral agent have any special commit- ment to the safety of the child who so haplessly is caught between victim and attacker. Although direct slaying of the child is forbidden in both cases, the mother is not seen to have any peculiar obligation to avoid causing her child's death "indirectly." Thomson similarly presumes absence of obligation, and, correlatively, points up the supererogatory character of foregoing an abortion to terminate an unduly stressful pregnancy. She refers to the parable of the Good Samaritan in Luke 10, to liken the continuation of maternal support to an act of unmerited com- passion for the enemy in need. The first point, in sum, is that abortion analogies overaccentuate the fortuitous aspects of pregnancy and mis- represent the fetus as essentially a stranger or enemy to the mother.
which he argues that killing a fetus does not clearly fall under the fifth commandment's prohibition of homicide.
15 David Novak, "Judaism and Contemporary Bioethics," The Journal of Medicine and Philosophy 4 (1979), 357.
16These examples were developed in particular by a Franciscan theologian, An- toninus de Corduba (1485-1578). Refer to Connery, Abortion: The Development of the Roman Catholic Perspective, esp. ch. 12, for a thorough discussion.
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Secondly, analogical approaches to abortion ethics frequently rely on the connotative meanings of the terms of the analogy, as well as on those features of the terms to which the mother, fetus, and period of gestation are explicitly compared. Analogies sometimes derive force from the fact that they are imbedded in a "story" constructed to create in the mind of the hearer an attitude of receptivity to the argument of the analogizer. The narrative context of an analogy enhances its connotative power. The negative connotations of analogies are most striking in those cases in which the fetus is understood as similar to a person for whom injury or death is generally anticipated and even accepted as appropri- ate. Such connotations are present in the above analogies of the burglar, the unjust aggressor, and even the violinist. They function to an even greater degree in the analogy Susan Nicholson makes of a fetus to a terminal patient on a life support system.
In Aborìion and the Roman Catholic Church, Nicholson accepts the premise that the fetus is human life worthy of protection, but, even so, challenges restrictive abortion legislation. The premise does not neces- sarily exclude therapeutic abortion in three cases: threat to the life of the mother, rape, and the diagnosis of a severely malformed fetus. A strength of Nicholson's argument is that she shifts the focus in the discussion of abortion from the death of the fetus to the preservation of the mother's life, or the protection of the mother against injustice, without denying the tragic character of fetal death, and the moral obligation to avoid it. Nicholson both criticizes the consistency of the traditional Roman Catholic prohibition of all direct abortions, and employs the method of analogy to evaluate abortion constructively. In so doing, she improves considerably on the abortion analogies of others, e.g., of Thomson.
Nicholson recommends that the termination of pregnancy through abortion in the three exceptional cases is analogous to withdrawing "extraordinary" life support systems from a dying or critically ill pa- tient.17 The most direct comparison exists in the case of a grossly defec- tive fetus. Such an abortion, it is claimed, can be justified on the same grounds that "indirect euthanasia" or "permitting to die" traditionally has been in Catholic teaching, e.g., by Pope Pius XII.18 In a pregnancy which results from rape or threatens maternal life, the death of the fetus is not sought in itself, but is the consequence of the withdrawal of support via a severance procedure, abortion. This withdrawal is claimed to be justified because of the unjust burden which assistance via invasive bodily support would place on the mother. Nicholson acknowledges that some abortion procedures destroy the fetus, rather than simply removing it from the mother's body. She allows that this is a relevant
"Abortion and thè Roman Catholic Church, Chapters IV, V, and VI. 18"The Prolongation of Life," The Pope Speaks 4 (1958), 393-98. See also Gerald
Kelly, S.J., …