Both Sara and the redoubtable Eve Tushnet flatter me with responses to the previous post. I hope neither will object to a combined response-to-the-responses. I’ll note by way of preface Sara’s reference to Stanley Fish, who observes that pro-choice folks now seem to focus on metaphysical questions, and a distinction between “biological” and “moral” life, whereas pro-lifers are concerned with the former. That is certainly true in terms of our relative arguments, but I think both camps are ultimately concerned with “moral life.” What I mean is that, as I was trying to get at last time, when biological life begins is only important if we assume that moral life begins at the same time. It is easy to conflate the two, because for most practical purposes, a human body which is alive in the biological sense is also a moral person. But we cannot simply fall back on that rule of thumb when contemplating moral “hard cases” which are thorny precisely because the overlap has ceased to be clear. Despite the public rhetoric associated with the debate, I think that most responsible pro-choice thinkers will grant that a fetus is biologically alive. If this were not clear, then certainly much more of the debate would be on the scientific than philosophical terrain, since most plausible ethical theories would converge on the conclusion that, if the fetus were totally internally inert, lacking both brain and organ activity until birth, it did not count as a moral person. So, on to the substance.

Is Human Life Valuable? Of course, it’s clear that lots of human life is valuable. But is the life of a biologically human organism always, ipso facto, valuable? Sara writes that the she assumed most people accepted this; it is the implicit value premise to which I referred last time. Sara offers an argument for thinking that it is, which I’ll take up later. But I’ll note for the moment that even there, biological humanity is acting as a sort of proxy for certain other morally weighty traits. That is, her argument relies on the link between biology and the other things I think are important — moral agency, rationality, a subjective “inner life,” reflective consciousness, etc. If human DNA very frequently produced creatures without these features, the link would vanish.

The Link Is it, then, the case, as Sara writes, that biology and rationality are “inevitably and inextricably linked”? I hold that they clearly are not. There is an argument familiar to students of the philosophy of mind which relies on the idea of “multiple realization.” This is the idea that the functional “program” which constitutes human persons is distinct from its biological base, in much the same way that a program running on a computer of metal and silicon could, in principle, be run on a strictly mechanical computer along the lines of Babbage’s “analytical engine.” The program, in other words, is an abstract set of relations distinct from its particular realizer, or physical base. Now, as John Searle has emphasized, we cannot simply assume that, for a given set of functional relations, the subjective qualities supervening on one physical realizer (a human brain) will supervene on a different realizer of the same relation set (in Searle’s famous example, an elaborate “Chineese room”). But neither is there any good reason to think that mind-supervenience is a unique property of carbon based biological realizers. So biology is not necessary for rationality: there could, as far as we know, be conscious silicon or pure-energy minds. Neither is it sufficient, as the existence of brain-dead humans shows. So again, biology is at best a proxy for the existence of a mind, which is admittedly more difficult to directly observe. The real thrust of Sara’s argument does not come here, but in the next section.

Comas, Corpses, and Fetuses Sara and Eve both attempt to turn my argument towards my own criteria: Is it not the case, they ask, that a comatose (or sleeping!) person is not, at that moment, exercising rationality? Might not a cryogenically frozen person, though capable of being revived, not have any brain activity at all? Eve approvingly cites Maggie Gallagher, who holds that for this reason, the moral personhood of the fetus should not rely on the presence of brainwaves. I assume, as they do, that we would shrink from murdering the comatose or frozen person, despite the absence of mental activity. They infer that brain activity is not, therefore, a necessary condition of moral personhood, and only biological humanity is left to explain our intuition. Or rather, I think it is biological continuity with a being which has the features I take to be important. Notice, though, that Eve’s argument, based on Gallagher’s, makes the following observation: that if brainwaves, once stopped, could typically be restarted, we would regard the destruction of a (temporarily) dead person as equivalent to the murder of a sleeper. What the argument shows is that the link between a physical body at an instant and a person-process extended in time is important. Sever the link, say by brain death, and you have a corpse which may be freely disposed with. Reestablish that link, even as a possibility, and disposal becomes murder. (We can imagine technology becoming so advanced that what is now “killing” becomes mere assault, whereas the cremation of what we consider a “corpse” is the true murder.) The fetus, then, is supposed to be like the “temporarily dead” person. But this is ethics which fails to look both ways before crossing the temporal street. Continuity in one direction — into the future — matters enough to distinguish corpse from sleeper. But might continuity in the other direction be no less important?

The frozen man is a placeholder for a recoverable self, a full set of life plans and values which would be lost if the body were destroyed. The crucial difference is that in the case of the fetus, we are dealing with a person-stage which is linked to none of those. Nobody’s consciously formulated ends are frustrated by the destruction of the fetus, no prior flow of thought and desire is ended for good. I think another thought experiment is helpful here. Imagine that we have a comatose person, whose brain is quite dead, but whose basic life functions persist. Now, imagine that the brain could be reconfigured in such a way that, several hours from now, “the person” would awaken with all previous memories and dispositions erased, and a new personality in place. I put “the person” in quotation marks because, by my lights, it would not be “the” person at all, but a distinct person who happened to occupy the same body as another. In this interim stage, someone proposes to kill the body and transplant its organs to others. Would this be wrong? My sense is that it would not: who are we mistreating here? Not the previous occupant: his self is gone, not to be recovered. What about the future occupant? One might argue that he exists as a “mere possibility” in a sense no different from that in which the cryogenically frozen man’s mind exists as a “mere possiblity.” But here, I hold that continuity with that previous self makes all the difference. It is that past mind which willed its own future resurrection, which projected itself into the future, that demands our respect (in the same way that we may be bound to honor a promise to a friend now dead), and not the potential future mind alone. That backwards-looking continutity is present in the case of the frozen person, but not in that of the fetus — yet it is, I think, that continuity that is the source of our revulsion at his murder. Continuity in one direction alone is as insufficient in the case of the fetus as in that of the corpse.

As a sort of corollary thought experiment, imagine a world in which our brains could be scanned and stored, making it possible at any time to recreate my precise psychophysical state as of, say, three minutes ago, in the event that I were killed. Murder would still, of course, involve a repugnant failure to treat people as ends, and possibly also the infliction of pain and fear. But I wonder, would we regard it as the heinous crime we now do? Or would we come to regard killers as, to be sure, thugs, but also as little more than an annoyance, eliminating a kind of covering ultimately not much more important than a favorite sweater? Would you look upon your impending death in that world with trepidation, or rather nonchalantly, confident that nothing truly important would be lost?

Several Slippery Slopes Defenders of abortion rights are frequently challenged to distinguish their reasoning from lines of argument which appear to support repugnant conclusions. In the case above, I think I have a distinction, which allows me to avoid being committed to the position that the temporarily comatose or frozen can be killed. But in one case, I will bite the bullet. Eve asks what momentous moral difference exists between the fetus a few weeks before birth, and the newborn child. There is none. In terms of inner life, and all the features I’m claiming are morally salient, the two may well be identical. I believe that the emergence of a moral person takes place sometime after birth. The selection of birth rather than, say, the moment precisely 24 hours after birth, as the place to draw the line is a matter of pragmatism, not principle. Birth is significant in the following way: it is the time at which the fetus-cum-child begins to experience and interact with the world in a much more way, the time at which the preconditions for the development of a self are in place. The world begins to place demands on the child — it sends signals of pain, pleasure, and all the sensations in between, in response to which the child begins to learn, to exercise volition, to choose behaviors. Whatever actions are hardwired into the fetal neural structure prior to this point, and there are plenty, are still just unrealized capacities and dispositions. Of course, that is precisely what they are five minutes after birth as well, and probably several hours, or even weeks afterwards. But the transformation is unobservable, so birth is a convenient marker.

Another sort of slippery slope looks to history and sees the horrors perpetrated by those who thought they knew which human lives were worthy of respect, and which were not. Certainly, we should be wary in light of that experience. But here too, the problem is not that slave owners and racists attempted to draw a distinction between biological humans, but that they drew it incorrectly. The persons they killed and abused really did have complex inner lives and all the rest. That they were horribly mistaken should give us pause, but neither should it dissuade us from thinking that we can get it right. Consider, after all, that “deep ecologists” make an analogous argument. The Nazis (they say) thought they knew which life was valuable, and we, similarly blinkered, imagine that humans are deserving of more moral respect than trees and amoeba. In terms of logical form, these arguments are identical. There is no reason “human life” uniquely fits, but “life as such” does not. Again, it is only because we associate human life with all those other important mental capacities that one argument seems better than the other. If we foolishly draw the moral circle too narrowly, we will commit bad acts. But if we draw it too broadly, then we will sacrifice the interests of real persons in order to protect the imagined rights of mere things. Both are undesirable, so we can’t let the example of others’ failure to draw the line relieve us of the responsibility of trying to draw it better.

Better Safe Than Sorry? One final argument trades on this sort of admitted ambiguity. Perhaps all I’ve said above is compelling; perhaps you think it very probable that the fetus does not have any of the morally important capacites. Still, if taking a life is a supremely wrong act, not the sort of thing one weighs in a utilitarian calculus, then mustn’t we avoid even the smallest risk of killing a full-blown moral person? I don’t think so. In the case of abortion, imagine we think it extraordinarily unlikely that the fetus, at a given stage of development, is a moral person — we estimate the odds at one in a few thousand. That is, I think, rather like the case in which we know of a person, and take a one in a thousand chance of bringing about their death. While I tend to resist utilitarian thinking, Eve’s “hunter analogy” seems relevant here, but I’m not sure it cuts in her direction. Any time we fire a gun, drive a car, throw a rock, open a door, whatever, there is some tiny probability, however minute, that we will inadvertently cause a death. And yet, to coercively prevent these actions (as by criminalizing abortion), we would unambiguously restrict the liberty of unambiguous persons. Now, I’m not particularly fond of these numbers-game sorts of arguments in ethics. Killing one person to save ten is not a “net gain to society” or any such rubbish. Yet the absolutist stance with respect to risks of harm strikes me as unbelievable and impracticable in the most literal senses of those terms. So I am forced to say that it must make some difference how probable we think it is that the fetus has the relevant mental traits. Here again, there is a problem of fuzz. Where to draw the line, exactly? What probability would be “too much,” and how are we estimating that probability? Here, I have no theory worked out at any great level of precision. But I am certain that pointing to the difficulty there does not settle the question in favor of the most risk averse strategy — the ban on abortion. Uncertainty, in short, cuts in both directions: if I misjudge, I risk killing a genuine person. But if they misjudge, they risk coercively imposing a kind of de facto slavery on another human being for nine months. It may be objected that the first is the greater evil, but my antipathy to the utilitarian calculus is precisely what leads me to reject that sort of argument. A possible unjust coercion to save a possible life is as repugnant as the enslavement of a definite person to save a definite life. We can’t rely on the difference in the magnitude of the harm, but instead have to deal with that messy question: how probable is it that the fetus really has a developed enough inner life that it seems right to consider it an honest-to-gosh person? The best I can say is that the considerations I outlined when I gave my reasons for “biting the bullet” incline me to say “improbable enough that we should permit abortion.”

Well, that all was far too long; I’ll wait and see if either Eve or Sara is masochistic enough to respond to this ramble.