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Is Abortion the Failure to Rescue?

As I have said, the entire line of argument considered above proceeds on Thomson’s assumption that if abortion is wrong, that is only because it is a violation of a positive duty to aid another. But much of the criticism of Thomson’s violinist analogy contests the very treatment of abortion as an issue of positive obligations. In the violinist scenario, your question is whether you can cause the death of the violinist by unplugging him, if that is what it takes to liberate yourself. But in some ways, ‘unplugging’ the violinist looks markedly different from many abortive procedures. It is plausible to describe the act of unplugging as one that does not kill the violinist as such, but only discontinues his life-support by disallowing him the use of your kidneys, making it inevitable that he will die. But what if you were unable to simply ‘unplug’ yourself from the violinist? What if freeing yourself from him required bringing about his death in some other way? Would you be permitted to kill the violinist by poisoning him, taking an axe to him, suffocating him, or putting him through an incredibly powerful suction machine that would kill him in the process of detaching him from you, if this is what it took? It is a fairly ubiquitous criticism of the violinist analogy that many abortion procedures do not resemble the clean- cut ‘unplugging’ in Thomson’s scenario, but involve something more like a direct attack on the body of the fetus.36 Abortion methods better fitting this description include the following:

Induction using a saline solution: A concentrated salt solution is injected into the amni- otic fluid, causing the fetus to die from acute salt poisoning. (This method is now obsolete in developed countries.)

Vacuum aspiration or suction termination: This is the most common early surgical technique. The cervix of the pregnant woman is stretched open and the surgeon inserts a plastic tube into the womb. The surgeon then uses a suction tube to evacuate the contents of the womb, in the process of which the fetus is dismembered by the vacuum machine.

Surgical dilation and evacuation or, ‘dilation and curettage’: The pregnant woman’s cervix is dilated and the fetus is scraped out using a sharp instrument, also killing the fetus by dismemberment. [1]

Intact dilation and extraction, or ‘partial-birth abortion: The pregnant woman’s cervix is dilated and the fetus’s head is delivered into the vaginal canal. The doctor then uses a sharp instrument to make an incision into the head, and evacuate its contents with a suction machine. The body of the fetus then passes easily out of the woman. The fetus is killed by the incision.

Perhaps the violinist analogy is misleading for failing to capture the direct nature of the attack on the fetus during many kinds of abortion. If this is so, what implications does it have for Thomson’s argument? As John Finnis described it:

... the whole movement of [Thomson’s] argument in defence of abortion is to assimilate abortion to the range of Samaritan problems on the basis that having an abortion is, or can be, justified as merely a way of not rendering special assistances7

Finnis maintained that Thomson’s Good Samaritan defence of abortion relied on the important distinction between killing and not keeping another person alive. However, Thomson could not deal with the whole of abortion as a Good Samaritan problem were she to acknowledge that in many instances, it is a positive act of killing rather than a mere failure to continue assistance which is under discussion. If abortion is frequently something very different from merely failing to rescue a fetus, this surely changes what is required to render it morally permissible, on the presumption that a fetus is a person. The negative duty to refrain from killing is largely thought to be far stricter and more general than the positive duty to give life-saving aid. Whereas one needs to locate a source of a duty to lend assistance, the duty to avoid killing applies all the time and in respect of everyone, unless it is displaced by a special justification. As Phillipa Foot explained, ‘there is worked into our moral system a distinction between what we owe people in the form of aid and what we owe them in the way of non-interference’.[2] [3] If the fetus is a person, and if aborting it really is to kill it, then it would take a particularly strong justification to make that killing permissible. Of course, there are recognized justifications for homicide in both law and morality. Such justifications are typically required to be proportionate to the harm inflicted by killing, and even then the mode of bringing about another person’s death may be subject to certain constraints, depending on one’s moral outlook. If abortion is a clear-cut example of homicide, only a recognized justification for homicide could vindicate it in morality and law.

Still, there are some abortive procedures that seem to fit the ‘unplugging’ analogy more comfortably. Abortion by hysterotomy, for instance, is performed through a surgical incision into the pregnant woman’s abdomen through which the living fetus is removed. Once outside the womb, the non-viable fetus dies. Abortion can also be (though rarely is) carried out by means of a hysterectomy, whereby the woman’s entire uterus is removed and the fetus with it. Again, the fetus subsequently dies not as a result of any direct attack on its body, but because of its expulsion from the environment it needs to survive. We might call these kinds of abortions in which the fetus is ejected but not directly attacked ‘extraction abortions’. Another example of a possible ‘extraction abortion’ is medical abortion procured using the ‘abortion pill’ (RU-486), an increasingly favoured method. The pill works by triggering contractions which cause a miscarriage, again expelling the embryo or fetus from the only environment in which it can survive. In these examples, there seems to be more scope for characterizing abortion as the discontinuation of life-support rather than the act of killing.

Even in the case of extraction abortions, however, it is possible to challenge the unplugging analogy. The analogy suggests that abortion by these methods merely allows the fetus to die. Is that correct? The matter is not settled simply by pointing to the fact that extraction abortions do not involve a direct attack on the body of the fetus, for there are clearly cases where disconnecting life-support without such an attack amounts to killing, not failing to rescue. If a hospital attendant decides to switch off all of the life-support machines on an intensive-care ward without relocating the patients depending on them, she will surely be killing the patients and not just omitting to save them.[4] As in this example, the abortion procedures in question are not pure omissions; in each case there is an action being performed which results in the death of the fetus. So the absence of a direct interference with the fetus’s body does not appear to settle the question about whether abortion is killing or failing to save.

Those who characterize ‘extraction abortion’ as allowing death rather than killing tend to claim that the fetus dies not because of the abortion, but because of its own underlying pathology, this being its unsuitability to life outside of the womb—in particular, its underdeveloped lungs. But as an argument for why abortion equates to letting die rather than killing, the claim is not persuasive. If one astronaut aboard a space station ejects another astronaut out into space without a space suit, she has surely killed him rather than just allowed him to die. It is immaterial to the killing description that there is also a physiological explanation for the death of the astronaut, having to do with the unsuitability of his body for survival in space without a space suit.

There is a problem here, however. If one maintains that abortion by extraction kills the fetus rather than fails to rescue it, what is one to say of the violinist case? David Boonin thinks we will not consistently be able to hold that while abortion by hysterotomy or hysterectomy (extraction abortion) kills the fetus, unplugging the violinist only allows him to die.40 In both cases, the victim is disconnected from vital life-support and is not subject to a direct bodily attack. If the violinist’s underlying ailment is the significant cause of his death, why is the same not true of the fetus’s underdeveloped lungs?

One way a critic of GST might respond to Boonin’s challenge here is to accept that unplugging the violinist does indeed kill him, albeit indirectly—meaning, without a direct attack on his body—and to hold out the possibility that there is a justification for killing the violinist that might not be available for many extraction abortions, if the fetus is a person. Alternatively, one might concede that if unplugging the

40 Boonin (n 11) 196—9.

violinist is only the discontinuation of aid, so also is abortion by extraction, and that Thomson’s analogy is successful in respect of those kinds of abortions. However, one might still maintain that all non-extraction abortions are acts of killing.

But there may yet be further reasons for thinking that extraction abortion and unplugging the violinist are on either side of the killing-letting die divide. Boonin apparently sees no significance whatsoever in the fact that the fetus’s biological inability to survive outside the womb is true of all early human life, whereas the condition threatening the violinist is an extraordinary ailment. This probably has something to do with his rejection of the ‘weirdness’ objection in general. As Boonin sees it, both the violinist and the pre-viable fetus have genetic dispositions which mean that they cannot survive when the bodily support of another is taken away, and in both cases those genetic dispositions have the same bearing on whether the dependent party is killed or not rescued when that support is withdrawn. The fact that the violinist’s condition happens to be out of the ordinary is beside the point.

But Boonin may be too quick here to dismiss the relevance of the fact that unsuitability to life outside of the womb is a condition in which all human beings begin their existence. Without wanting to delve into difficult questions of causation, including whether omissions can be causes, it is at least clear that what is ordinarily required for human beings to remain alive does not usually suffice as an explanation for death. Even a paradigmatic direct killing could be given an alternative description that is purely physical and causal. Consider: ‘He didn’t die because I stabbed him; he died because he couldn’t continue to oxygenate his body having lost so much blood from a gash in his skin’. Physical descriptions of inevitable biological failings do not give rise to any doubt about whether a killing has taken place in clear cases. In my stabbing example, the victim’s pre-existing need for enough blood to oxygenate his body does not preclude the attacker’s actions from being actions that kill.

Pre-viable fetuses are innately incapable of surviving outside the uterine environment, and their dependence on that environment is nothing out of the ordinary; it is the only way in which human beings begin their existence. We do not usually redescribe acts of killing as failures to rescue as soon as it is pointed out that the relevant actions only caused the deprivation of normal conditions for sustaining human biological life. Considering this, it seems we would need a special reason for saying that expelling the fetus from the womb in an extraction abortion does not bring about its death, but only fails to rescue it from the natural consequences of its biological immaturity.

The violinist’s situation of dependence is, contrastingly, quite unique. Certainly, one could not very well explain the death of the violinist subsequent to his being unplugged from you without drawing special attention to his underlying condition. This is, however, every bit as true for the intensive-care patients whose death you cause by switching off their life-support machines. And you would surely be killing them. The predicament of the intensive-care patients is not truly extraordinary in quite the way that the violinist’s predicament is—it is more familiar and prosaic. But here Boonin might push us to state the exact reason why the sheer weirdness of the violinist’s case has a bearing on our assessment of what amounts to killing and what letting die.

One thing to come out of the comparison with the intensive-care patients case is that the accuracy of the killing-versus-letting-die description seems to depend upon more than whether the act is in one clear way just the discontinuation of life- sustaining aid. It seems there must be more involved when applying that distinction properly than looking only to the precise structure of the acts resulting in death, and what the prospects of the victim would have been if left unaided by anyone or anything. Unplugging the life-support patients is a clear act of killing, whilst unplugging the violinist’s support seems not to be. Both are alike, though, in being acts which bring about death only by cutting off vital life-sustaining aid. What, then, are we to say about extraction abortion, where the fetus is ejected from a life- sustaining environment by means of a positive act which does not attack it directly? This much seems clear: the determination cannot be made solely by pointing to the fetus’s pathological dependence on the uterine environment.

  • [1] 6 See, for example, Kaczor (n 22) 151—4.
  • [2] Finnis (n 22) 125. My emphasis.
  • [3] Philippa Foot, ‘The Problem of Abortion and the Doctrine of Double Effect’ (1967) 5 OxfordReview 5, 9.
  • [4] See Airedale NHS Trust v Bland [1993] AC 789.
 
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