We are pleased to welcome this guest post from Donnchadh O’Conaill, of the Department of Philosophy, History, Culture and Art Studies at the University of Helsinki. This is the second of a series of posts Donnchadh is writing on presentations of ethicists to the Citizens Assembly; the first can be found here.
Debates about abortion can often be traced back to disagreements about the status of the foetus, e.g., whether it is a being with any independent moral significance. All parties to this disagreement share two assumptions: that ethical debates over abortion are primarily a matter of the moral importance of the foetus, and that the nature of the foetus is what determines its moral status. Hence many opponents of abortion will appeal to the fact that the foetus is a human being, e.g. it has a soul or has the potential to become a rational being; many proponents of liberal abortion laws will counter that the foetus, at least early in its development, lacks certain capacities which are crucial to having moral status. The arguments here are often complex and involve subtle points of metaphysics which are not easy to resolve. More generally, regardless of what one thinks about these issues, it might seem that such esoteric matters are not appropriate as a basis for legislation.
In her submission to the Citizen’s Assembly, Prof. Bobbie Farsides outlines an alternative approach: a way of justifying a pro-choice regime which seeks to avoid disputes about the nature or moral status of the foetus. Farsides starts by citing Mary Warnock’s observation that it is highly unlikely that an agreement on the moral status of the foetus will be forthcoming. Rather than trying to reach what is bound to be an elusive consensus on this issue, and basing the law on that agreed moral status, we should instead set this topic aside, and aim
to reach some form of societal consensus on the important question of how to treat the fetus in the full knowledge that we may never agree on its moral status.
Farsides’s suggestion is that once the different views on the nature and status of the foetus are set aside, each woman should be allowed to decide for herself what to do when pregnant. In this way each woman can be guided by her own views about foetus and about abortion, without any one such view being used as the basis for the law:
The pro-choice position also asks that in place of imposing a unitary approach on this most metaphysical of issues we should trust women to act morally and make choices that they can individually live with.
This position is obviously one which pro-choice advocates would support, but it is not based on any contentious claims about the nature of the foetus, or when it acquires moral status.
This kind of argument is likely to give rise to a dialectical dispute. Opponents of this argument will claim that it is only acceptable if one already tacitly accepts that the foetus has no genuine moral status. For suppose that the foetus does have such a status. In that case, allowing each pregnant woman (or anyone) to do what they wish with the foetus would be tantamount, morally speaking, to legalising the homicide of a particular class of persons. I take it that no-one would accept an argument in favour of allowing infanticide which appealed to the slogan ‘If you don’t agree with infanticide, don’t kill your child’. The reason we would not accept this argument is because we regard infanticide as gravely wrong, so wrong that it should not be left up to the child’s parents, or to anyone else, whether or not to commit it. When this position is contrasted with Farsides’ argument concerning abortion, the challenge becomes clear: what is the difference between the two cases which makes a moral difference, which justifies permitting abortion while prohibiting infanticide? What is it about infants which gives them a moral value which foetuses lack? There are various ways of trying to answer these questions, but most of them will involve engaging with precisely the questions concerning the status of the foetus which Farsides sought to avoid.
Proponent of Farsides’ argument would be well advised not trying to answer this last question. Rather than appealing to some difference between infants and foetuses which confers moral status on the first but not the second, they should appeal to the fact that, as a society, we have profoundly different attitudes to each case. While there is almost total consensus that infanticide is wrong, the fact is that no such consensus exists regarding abortion, in large part because no consensus exists on the nature or moral status of the foetus. In such a circumstance, it becomes all but impossible to determine what the law should be by determining what should, ethically speaking, be done in the relevant cases. So rather than trying to tie the law to some ethical standard, the best course of action is to trust individual citizens to make their own decisions as best they can.
Crucially, to make this response does not require that one regard the foetus as having no moral status. All it requires is that there not be an overwhelming case that the foetus does have moral status; and while there are numerous arguments supporting the moral status of the foetus, all rest on contentious assumptions and none are close to being conclusive. The same, it might be said, is true of arguments designed to show that the foetus has little or no moral status. It is because of this fundamental uncertainty that the position offered by Farsides may be plausible. This response will not of course satisfy many of those convinced that the foetus has full moral status – but it puts the burden of proof on them, to provide a convincing argument in support of their case.
However, the position offered by Farsides faces further challenges. First, it may be vulnerable to charges of subjectivism or relativism, of denying that there is any objective ethical standard by which abortion can be judged. As stated, this criticism does not seem correct: Farsides’ approach does not require that there be no objective ethical standard for abortion, only that the law governing abortion should not be based on any specific ethical view. However, this response raises a further question, concerning the degree to which the law governing an ethical issue can be divorced from what is ethical permissible or correct. Farsides is aware of this question; she describes her approach as taking a stand, not on the ethics of abortion, but on the dispute between “moral liberalism and absolutism” concerning the law. In other words, the question she is seeking to answer does not concern the ethics of abortion but how the law on abortion should be framed in a society with a variety of different ethical views. But it may reasonably be asked whether the law should be independent of ethical considerations in this way. After all, people disagree on a great number of different ethical issues, in many cases with little hope of compromise. Allowing individuals to do what they wish in each such case would seem to require a thoroughgoing libertarianism. This, it seems to me, is a genuine problem for Frasides’ approach: it threatens to apply far more generally than many people would be happy with.
The approach outlined by Farsides faces another problem, in the context of debates about repealing the Eighth Amendment. Philosophically, it seems to have the virtue of moderation, avoiding disputes about the nature or status of the foetus. However, when translated to the political context of contemporary Ireland, the position advocated by Farsides appears far from moderate. If legislated for, it would amount to recognising that every woman should be allowed to have an abortion should she wish, without having to cite any specific grounds for having one. Opinion polls suggest there is at present limited support in Ireland for such a regime. It may be that while Farsides’ approach is useful as an alternative to disputes about the status of the foetus, in the context of Irish public debate it may not be the best line for the pro-choice side to take.
 For an example of such disputes, see the presentation to the Citizen’s Assembly by Dr. Helen Watt (https://www.citizensassembly.ie/en/Meetings/Second-Meeting-of-the-Citizens-Assembly-on-the-Eighth-Amendment-of-the-Constitution.html), and my comments on Dr. Watt’s presentation (http://humanrights.ie/constitution-of-ireland/reflections-on-the-citizens-assembly-1-the-presentation-of-dr-helen-watt/).
 Prof. Farsides’ presentation is available at https://www.citizensassembly.ie/en/Meetings/Second-Meeting-of-the-Citizens-Assembly-on-the-Eighth-Amendment-of-the-Constitution.html.
 A variant on this objection concerns time limits. Most jurisdictions which allow abortion place limits on how far into the pregnancy a woman can access this procedure (or at any rate, how far into the pregnancy a woman can access this procedure without having to cite some specific grounds, e.g., a grave threat to her health). The challenge for the proponent of Farsides’ approach is to justify some specific time limit, or indeed the need for any time limit prior to birth.
 A similar distinction was proposed by Dr, Mark Sheehan in his presentation to the assembly (https://www.citizensassembly.ie/en/Meetings/First-Meeting-of-the-Citizens-Assembly-on-the-Eighth-Amendment-of-the-Constitution.html).
 For instance, in an Irish Times/Ipsos MRBI poll, only 19% of respondents thought that abortion should be available “in all cases requested” (Stephen Collins, ‘Irish Times Poll: Majority Want Repeal of the Eighth Amendment’, Irish Times 7/10/2016, http://www.irishtimes.com/news/social-affairs/irish-times-poll-majority-want-repeal-of-eighth-amendment-1.2819814 ).