Someone recently bought our

students are currently browsing our notes.


Abortion Article Summaries Notes

Law Notes > Medical Law Notes

This is an extract of our Abortion Article Summaries document, which we sell as part of our Medical Law Notes collection written by the top tier of Oxford students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Medical Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

NOTE: Kate Greasley's Arguments About Abortion has some pretty good arguments and critiques!!
About various abortion arguments!!
- I strongly agree with Greasley's views about a capacity-based conception of personhood, and her adoption of Warren's five cluster criteria

And also her views that even if the foetus and young infant is not a person, it can still be deeply immoral to harm them
- I also strongly agree that foetuses have interests independently of their personhood
- I think we can act immorally by aborting even if the foetus is not a person!
o For instance late term abortions - they seem to show a callous disregard for human life, and that is why we consider it so immoral (I think)
o Another similar example is abortion for trivial reasons (e.g. because you wake up one day and want to take a trip overseas, and can't do so because your belly is too big)
Kate Greasley and Christopher Kaczor, Abortion Rights: For and Against (Cambridge University Press 2017)
Chapter 1 - In Defense of Abortion (Greasley)
- Greasley argues that:
o Personhood turns on developmentally acquired capacities, namely higher cognitive capacities such as reasoning ability, consciousness, and a concept of the self.
o As such, she argues that there is no bright line or threshold of personhood, it is a gradual process

What about infants?
 Young infants are not yet moral persons, but we still have reasons not to infringe on their interests
 1) One might think that the avoidance of fetal pain is a serious moral consideration in abortion regardless of personhood status.
 2) The violent destruction of beings that possess so much human embodiment - a mode of embodiment shared with person-types - may be unsettling not only because it contravenes their interests, but because it manifests serious disrespect for the human form, which has significant meaning in being the requisite physical substratum for persons as we know them

What about the profoundly disabled?
 She argues that we have moral considerations for treating all human beings who could have been persons, but through some misfortune fail to be, with the same moral respect that is owed to actual persons oIn terms of legal personhood, she recommends birth as a concession to practicality,
she thinks that this is the clearest line which facilitates clarity and consistency in the law, and this also has clear social significance

Greasley's position 1 In the last section, I presented the prima facie case for believing that moral status -
or what we might call "personhood" - ultimately depends not on biological or genetic humanity but rather on developmentally acquired capacities, more specifically, higher cognitive capacities such as reasoning ability, consciousness, and a concept of the self.
o According to this view, although mature human beings are indeed persons, they are not persons because they are human but because of the capacities with which they are endowed. Equally, as the intelligent alien hypothetical demonstrates, a creature need not be human in order to qualify for personhood, so long as it is in possession of the morally relevant capacities.
Furthermore, some of the considerations for treating mature humans who lack personhood's constitutive features with serious moral respect may have to do not just with the good of those individuals themselves, but also with how our treatment of them influences and reflects our moral respect for all mature human beings and what is important in their lives.
o This may be true, for instance, of certain harmless behaviours directed at individuals with RCD (radical cognitive deficiencies) that, although they inflict no detriment on the individual, demonstrate a pernicious disregard for the dignity and value of all developed humans
In the case of human beings with radical cognitive deficiencies, I pointed out that the degree to which such individuals are excluded by a capacities-based account could be miscalculated when there is insufficient knowledge of what people with cognitive limitations are actually like, and the kinds of interactions of which they are in fact capable.
Second, however, I suggested that the main intuition that renders the NOTK theory compelling may indeed be reflected in the moral considerations we have for treating all human beings who could have been persons, but through some misfortune fail to be, with the same moral respect that is owed to actual persons. Inasmuch as it encapsulates this moral imperative, the kernel of the "flourishing like ours" account of moral status might be correct.
o Crucially, though, I suggested that fetuses do not, on this rationale, stand in the same position as mature human beings who lack the constitutive properties of personhood.
o The nature of their flourishing is not "like ours" and they are not
Supports birth as the line drawn for legal personhood, as a concession to pragmatism (even though in her view, moral personhood starts sometime after birth)
o But someone would be mistaken to claim that there are absolutely no significant changes that take place during birth. Early human beings in fact undergo extremely dramatic biological and physiological changes in the birth process itself to prepare them for survival in the extrauterine environment. These include numerous biological adaptions, such as changes in the circulatory system and the clearing of fluid from the lungs, which enables the newborn to breathe in air for the first time. Surges of hormones are released to regulate temperature outside the womb, new enzymes are activated, and the digestive system undergoes considerable adaptations.
Neonatologists Noah Hillman et al. describe the transition from intrauterine to extrauterine life as "the most complex adaptation that occurs in human experience

Some psychologists have even argued that entry into the extrauterine world is a condition for the development of subjective conscious awareness. Psychologist and pain specialist Stuart Derbyshire has suggested that the mass of mental content to which the neonate is immediately exposed on exiting the womb - the sights, sounds,
o--2 -smells, and tastes of the world - are in fact essential components for developing conscious experience, memory, and emotion
Rather than searching for a precise point that corresponds with the beginning of personhood,
the law need only look for a reasonable place to set an absolute boundary line, reasonable in the sense that it is within the range of reasonable limits and bears out the legal virtues of clarity, predictability, and transparency.
On these counts, I think there is much to recommend birth over closely neighboring thresholds. Birth has a high visibility and unmistakability that cater well to the need for clarity and consistency in the law.
o The birth event is utterly transparent and undeniable, and does not blend as seamlessly into earlier and later phases of development as do other benchmarks before and after birth. This means that there is no scope for uncertainty or mistake about whether the pertinent threshold has indeed been crossed, lending birth a practical workability that other thresholds may lack.
o Birth also has a universal social salience that makes it especially suitable as a legal boundary line. The fact of having been born has, in almost every society, enormous cultural implications regardless of the law.
o This again might be thought to render the birth threshold uniquely appropriate within the range of acceptable legal borderlines, since it mirrors the marker of unequivocal social personhood and leaves even less room for ambiguity or ignorance.To recap once more, I have suggested that there is genuine vagueness surrounding the beginning of personhood in human beings, and that persons do not begin instantly and completely on a sharp borderline as (what I have termed) the "punctualist" view suggests.
o Nevertheless, there are vitally important reasons for the law to settle on a clear and absolute benchmark, and the recognition of these reasons does not in any way plunge us into relativism about when persons begin. There remain clear conceptual constraints on what sorts of creatures can and cannot be persons, and those constraints will inform the margins within which it is reasonable to stipulate the minimum threshold. Finally, I suggested that, assuming that it is within this reasonable margin, there is much to recommend birth as the threshold of qualification for personhood.What arguments for not killing infants or late abortion?
o One might think that the avoidance of fetal pain is a serious moral consideration in abortion regardless of personhood status.
 We have general reason to avoid inflicting serious pain on other creatures,
human or nonhuman, without just cause. The capacity of fetuses to feel pain is in fact a fairly controversial matter.
 Contrary to the congressional findings cited in the Partial-Birth Abortion Ban
Act, medical and scientific opinion is divided on the question, with some psychologists claiming that subjective pain experience is distinct from purely physical responses to stimuli, such as flinching and the release of stress hormones, and is not possible in the absence of self-consciousness
(Derbyshire 2006).

3 o

The violent destruction of beings that possess so much human embodiment - a mode of embodiment shared with person-types - may be unsettling not only because it contravenes their interests, but because it manifests serious disrespect for the human form, which has significant meaning in being the requisite physical substratum for persons as we know them

1.1 Clearing the cobwebs
- Need to "clear the cobwebs" -> i.e. challenge the idea that our beliefs come in "package deals" (i.e. if we're Christian/respect sanctity of life, we must oppose abortion)
o For e.g. some think the commitment to the sanctity of human life quite naturally and obviously entails the immorality of all, or almost all, abortion.
o But is this quite so obvious?
o NOT REALLY - depends on what counts as human life and when this human life begins
 i.e. does a single-celled zygote count?
o Another question is what it looks like to respect the sanctity of human life when it comes to abortion (Dworkin 1994)
 Does respect for the sanctity of human life require the preservation of all biological human life, no matter how radically immature or radically degenerated?
 Could respect for the sanctity of human life not also be compatible with the sacrifice of some very nascent forms of human life so as to prevent a much more mature life, with far more investment, from being squandered?
 [i.e. Dworkin's distinction between different forms of investment in life]
 Supporters of sanctity of life may differ on the question about which is the more intrinsically valuable, or "sacred," part of human life: nature's pure biological creation or all of the human creative investment that goes into human beings throughout their lifetime?

1.2 The silver bullet
- I want to begin by conceding a very important proposition to the anti-abortion side.
o This is that, if the fetus is a person, equivalent in value to a born human being, then abortion is almost always morally wrong and legal abortion permissions almost entirely unjustified.
- Person -> a category of beings with strong moral rights, in particular, the almost inviolable right to life

Human being -> individual members of the human species

All embryos and foetuses are human beings but not necessarily persons

Also possible to be person without being a human being
 E.g. alien example
- If one regards the fetus as a person, in possession of the same fundamental right to life as you and me, abortion will be difficult to justify even in the most extreme cases such as pregnancy caused by rape, severe fetal disability, or serious physical risk to the health or life of the pregnant woman.
4 We do not ordinarily think that homicide is justified to avoid huge emotional distress,
the burden of disability, or even to avoid physical trauma, unless carried out in selfdefense. And this is to say nothing of the many lesser hardships that abortion might be chosen so as to evade.
Two arguments that the personhood question is irrelevant

1) Judith Thomson's argument that abortion does not really amount to killing the fetus, but only, rather, the refusal to save it with the use of bodily support
 Moreover, she argued, what it takes to sustain the fetus's life - continued gestation - is not something any pregnant woman can be morally obligated to provide. In other words, continuing to gestate an unwanted fetus is a supererogatory act, or a form of Good Samaritanism.
 And since no one is morally required to be a Good Samaritan, and certainly should not be so required by law, abortion rights are defensible.
o 2) A different sort of argument claims that even if abortion does amount to killing the fetus rather than failing to save it, almost all abortion could be subsumed into a recognized category of justified homicide. This argument points out that it is sometimes permissible to kill other persons, for example, in situations of self-defense or, perhaps, in exceptional circumstances where killing one person is the only way to avoid the deaths of a greater number. If it can be shown that all or most abortion mirrors these justified homicide scenarios, then the relevance of fetal personhood will be greatly diminished.
I am going to assume that both of these arguments ultimately fail

Insufficient space here to explain why I reject them
I will therefore assume in the following that abortion does indeed involve the deliberate killing of the fetus and that, were the fetus a person, hardly any abortion scenarios would meet the moral and legal conditions for justified homicide
Further attempts to displace the relevance of fetal personhood in the abortion debate might take a different tack.
o 1) It may be claimed that even if abortion is morally impermissible, the legal right to abort is still defensible for reasons to do with counter-productiveness or justified toleration.
 Claims about counter-productiveness of regulation point to the hugely harmful consequences of banning abortion practice, given the realities of imperfect compliance. Abortion practice does not disappear because it is banned. Rather, the argument goes, prohibiting or restricting abortion in law only drives women intent on procuring abortion to unregulated and unsafe practitioners - the "backstreet" abortionist - resulting in worse overall outcomes

2) it could be argued that even if abortion is morally impermissible, there exists, to some degree, a "right to do wrong" (Waldron 1981).
 There are many kinds of immoral conduct that are not the appropriate targets of legal sanction or regulation.
 E.g. Lying in one's personal life and infidelity

Still, I do not believe either of these considerations can show that abortion rights ought to exist even if the fetus is rightly considered a person
 This is because neither consideration can justify toleration of abortion if it amounts to homicide. Concerns about counterproductivity and endangering o-5 the participants would never be accepted as arguments against the prohibition of infanticide.
 Moreover, norms of justified toleration can never extend to conduct that seriously harms others, especially to homicide
- To reiterate, then, I am going to grant in everything that follows that if human beings really are full persons from conception, morally equivalent to born human beings, this would indeed be a silver bullet for the defense of abortion rights

1.3 What is at stake for women in abortion
- I think it clear that if the fetus has little or no moral considerability, then not only is abortion morally permissible, but denying women the abortion right is a serious injustice.
o This is because of what is at stake for pregnant women in securing abortion access.
- The potential interests that women have in obtaining abortion are threefold: the interest in procreative control, the interest in being free from the bodily burdens of pregnancy, and the interest in sex equality.
- Procreative control

Everyone has a significant and very personal interest in determining if and when he or she will become a parent. Undeniably, procreation is one of the most profound and meaningful (and, of course, irreversible) aspects of human life.
o Everyone has a significant and very personal interest in determining if and when he or she will become a parent. Undeniably, procreation is one of the most profound and meaningful (and, of course, irreversible) aspects of human life.
- One possible objection is that the interest in avoiding unwanted parenthood can be adequately protected so long as adoption is available as an alternative to abortion

Becoming the biological parent to a child from whom one is then separated, even through choice, is not without its emotional costs and, indeed, its ramifications for one's personal identity and self-conception
- More than this, though, assuming the fetus lacks the status of a person, preventing women from being able to exercise control over their bodies through abortion is a serious injustice.
o By passing abortion restrictions, states indirectly impose on women the considerable physical burdens and risks of pregnancy
- Third, abortion prohibitions harm women as a class. As feminist scholars have argued at length, the unavoidability of pregnancy and childbirth has particularly detrimental consequences for the status of women and their equality with men

Nevertheless, the class-based interest in sex equality will still not be enough to justify abortion morally if it is true that abortion is tantamount to homicide, because the enhancement of sex equality is not ordinarily accepted as a justification for homicide.
o Someone may reply here that the sex equality interest is not deeply implicated in abortion prohibitions since women do have the means to liberate themselves from the unequal burdens of pregnancy and childbirth either by abstaining from sex or by using contraception.
o But this is a wholly inadequate answer to the sex equality problem.
 Part of the reason for this is that women's control of sexuality itself, including the use of contraception, is compromised in conditions of patriarchy

1.4 Does abortion harm women?
- "Women-protective" anti-abortion arguments range from the claim that abortion is physically dangerous to women to claims that abortion is typically attended by negative psychological

6 and emotional sequelae, and that women are particularly prone to experiencing postabortion regret.
o Needless to say, I find these "women-protective" arguments deeply suspect both in terms of their claims and in terms of their authenticity.

1.5 Three Thought Experiments about Personhood
- Numerous views on personhoods, but useful to juxtapose two
- (SPECIES-BASED) The first view takes personhood to supervene on human species membership, and possession of human genes as the necessary and sufficient condition for inclusion in the category of persons and the right to life.
o It follows from this account of personhood's conditions that all human beings are persons from conception; newly formed zygotes as well as embryos and fetuses all qualify
- (CAPACITY-BASED) The second, antithetical view takes personhood or moral status to supervene on developmentally acquired capacities, most notably psychological capacities such as consciousness, reasoning ability, communication, independent agency, and the ability to form conscious desires.
o One well-known iteration of this kind of view is the philosopher Mary Anne Warren's contention that personhood is constituted by five key characteristics: (1)
consciousness (especially the capacity to feel pain), (2) reasoning ability, (3) selfmotivated activity (or, we might say, agency), (4) the capacity to communicate, and
(5) a concept of the self (Warren 1973).
- In the rest of this part, I want to introduce what I take to be a good prima facie case for believing that the core constitutive features of a person are developmentally acquired capacities, such as those enumerated by Warren, and for rejecting the view that pure human species membership, in the form of human genetic coding, is sufficient for the possession of personhood.
The Embryo Rescue Case
- You are on the ward of a hospital that is quickly burning down.
- In the ward with you are five frozen human embryos, stored for implantation in fertility treatment, and one fully formed human baby.
o You have time to grab and rescue either the five embryos or the one baby, but not both. What should you do?
- Most would intuitively rescue the fully formed baby
Intelligent Aliens
- I now want to turn to consider a second thought experiment, reflection on which, I believe,
strongly suggests that it is not human species membership per se that is constitutive of personhood, but rather other properties that are not possessed by all human beings from conception

1.6 Defending the Developmental View
- With regard to pre-born human beings, the upshot of this view of moral status is that they do not count as persons with the strong right to life if they do not bear out the morally relevant capacities, which, it seems, they do not.


Buy the full version of these notes or essay plans and more in our Medical Law Notes.

More Medical Law Samples