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The ‘Anti-Personhood’ Argument

Up to this point, I have been examining the proposition that prenatal personhood is not what public abortion argument is about. But one might well ask why, as philosophers or lawyers, we ought to be interested at all in the nature of public discourse, coherent, rigorous, or otherwise. After all, the terms of that discourse do not necessarily bear any relation to the philosophically and legally pertinent issues in abortion.

But Dworkin’s own claims about the nature of abortion controversy were not meant to be mere descriptions of the public argument. That is, he was also making the stronger claim that prenatal personhood—or, the ‘derivative’ question—is not what actually is philosophically and legally salient in abortion. One important argument for that claim came in the way of his contention that no one could sensibly regard the fetus as a person with rights and interests of its own, ‘in particular an interest in not being destroyed’, from the moment of its conception^4 This is because the fetus has never possessed any mental life, something Dworkin took to be an essential pre-requisite of having such interests. Comparing early fetuses to the assemblage of body parts on Dr. Frankenstein’s table before the lever is pulled, he insisted:

... it makes no sense to suppose that something has interests of its own—as distinct from its being important what happens to it—unless it has, or has had, some form of consciousness: some mental as well as physical lifeA

He may, of course, have been right about that. But as Frances Kamm has pointed out, Dworkin’s assertion here is not so much evidence for the irrelevancy of prenatal personhood in abortion as it is an ‘anti-personhoodargument'.[1] [2] [3] The fact that Dworkin himself found the notion of prenatal personhood quite implausible (a claim which, apart from asserting the necessity of mental states for interests, he did not accompany with a great deal of argumenTh) does not go to show that the per- sonhood-centred view of the abortion problem is false. This is because the primacy of the personhood question in our philosophical inquiries about abortion can still be demonstrated simply by attending to the fact that were the fetus a person, abortion would seem to be tantamount to homicide. Dworkin could therefore dismiss the theoretical importance of the derivative question only by arguing that no sensible individual would classify the fetus as a person.

But Dworkin could be understood to be making a different, even stronger, argument here. By saying that the notion of fetal personhood strikes him as scarcely intelligible, we might take him to be claiming that it is not just false, but conceptually incoherent. Perhaps our shared concept of a person can no more admit fetuses than it can admit rocks, trees, or rabbits. To be sure, someone might protest that a rock, a tree, or an insect is in fact a person, and that we have always been mistaken in thinking otherwise. To such a protest, there may be little to say except that the person voicing it does not grasp the concept of a person if she is willing to make such claims. If anything is true about persons, it is that a rock cannot be one. A dispute about whether or not rocks in fact are persons could not, therefore, be an argument about the constituent features of personhood, but only an instance of discussants failing to examine the same concept at all. And of course, if it is conceptually incoherent to think of fetuses as persons then it is hardly likely that opponents of abortion believe it. It is far more likely that abortion discussants are conflicted over something else.

If Dworkin were right about the conceptual absurdity of fetal personhood, then the derivative issue would indeed seem to lose much of its argumentative relevance for abortion. It would be pre-eminent only in the sense that something nobody believes, and which is hardly believable, would have serious implications for the legal and moral status of abortion if it happened to be true. This is surely irrelevance of an important kind. It invites the question of whether a fetus should even be considered a serious candidate for personhood. Is there more reason to investigate the possible personhood of fetuses than that of insects?

I have not wanted to commit myself so far to any substantive view about the conditions for personhood, taking instead as my subject the prior question whether the personhood issue is critical for our moral and legal calculations about abortion. One thing Dworkin’s enterprise may have revealed is just how difficult it is to form a judgement about this prior question that is hygienically separate from one’s beliefs about the conditions of personhood. If fetal personhood is an unintelligible proposition, the personhood question will seem to have little place in explaining the moral complexity of abortion, if indeed any complexity then remains.

Still, I believe Dworkin overstated the case if relegating the notion of fetal personhood to the realm of the conceptually incoherent. The human fetus is distinctly unlike rocks, trees, and insects in ways that render ascriptions of personhood more intelligible with respect to them. One obvious difference is that the fetus is a creature which, if left to develop and thrive and to be born, we believe will unequivocally come to possess personhood. It is at least a potential person, in a way that insects or inanimate objects are not. Given this potentiality, and given the biological continuity of fetuses with later humans, there is surely reason enough to consider whether the moral status we accord to developed human beings extends back to human beings pre-birth. If we believe that all humans, once born, are persons in the philosophical sense, the next natural question will be why that status is withheld from human beings in utero.

The mere fact that a creature will mature into a person if it thrives is not a ground for believing that it already is one. But such knowledge could ground an interest in the exact (or as the case may be, inexact) point when that moral status is acquired. Might that creature, which is certainly en route to personhood, reach that destination earlier than is entirely apparent? In this respect, unborn humans are much unlike rocks and other entities, which are not generally believed to be developing towards certain full-fledged personhood.[4] [5]

Another reason for taking the proposition of fetal personhood more seriously than that of, say, insect personhood, has to do with what constitutional lawyers call ‘suspect classifications’. In all other contexts, many now historical, in which the categories ‘human being’ and ‘person’ have been distinguished, and where legal systems and social orders have engaged themselves in separating out who is human in the simple biological sense, and who in the moral, rights-holding sense, those applying the distinction have fallen into grave moral error. Familiar examples abound. Genocide, slavery, and racial segregation are, all in a way, an expression of the view that some human beings are not persons, or not in the fullest sense. Our own moral failings in applying this distinction and the purposes to which it has historically been put ought to encourage extreme caution whenever invoking it. If we are right to do so with fetuses, this will turn out to be the only case in which a class of human beings has been correctly excluded from the personhood category. The classification ‘human sub-person’ is, in other words, a deeply suspect one, and this alone gives us considerable reason to pause and reflect before denying the per- sonhood of fetuses.

Let me emphasize that none of these points in any way go towards proving the personhood status of the fetus. My focus here is entirely with what is logically pre-eminent in abortion ethics, to which end all of the foregoing is only meant to establish this: if it really is the case that the moral status of the fetus is not the core inquiry in ethical argument about abortion, then the burden is still on the proponents of this position to show why.

  • [1] Dworkin (n 5) 15. 25 ibid 16.
  • [2] 26 Frances Kamm, Abortion and the Value of Life: A Discussion of Life’s Dominion’ (1995) 95Columbia Law Review 167. My emphasis.
  • [3] 27 Don Marquis remarked that Dworkin accompanied this ‘crucial assertion’—that interests requiresome form of consciousness—‘with no argument whatsoever’, even though ‘his analysis of the ethics ofabortion collapses if it is untrue’ (Don Marquis, ‘Life, Death and Dworkin’ (Review Essay) (1996) 22Philosophy and Social Criticism 127—31).
  • [4] I do not wish to presuppose here that no non-human animals could be persons. The point is onlythat mature human beings, at least, are uncontroversial examples of persons, and given that humanfetuses are the earlier forms of those same biological lives, it seems appropriate to question when, in thatbiological life, personhood begins. I also do not wish to entirely rule out here the possibility that thereborn human beings that are not persons.
  • [5] Dworkin (n 5) 13.
 
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