Reflections on the Citizen’s Assembly (3): The Presentation of Dr. Joan McCarthy

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 third of a series of posts Donnchadh is writing on presentations of ethicists to the Citizens Assembly; the first can be found here, and the second here

While debates over the status of the foetus are central to ethical and philosophical discussions of abortion, the freedom of women to choose to have abortions is crucial to political debates on this subject. Dr. Joan McCarthy presented a defence of this freedom, taking as her starting point “the body and the life of the woman or girl who is pregnant”, considered as a moral agent, i.e., as making ethical choices in concrete situations.[1] In assessing the choices such women face, McCarthy draws on two principles: autonomy and justice.

By autonomy, McCarthy means “an individual’s right to be free to live their lives according to their own values and beliefs without being arbitrarily restrained or limited by anyone else”. Respect for a person’s autonomy requires us to “not unreasonably restrict or constrain the life choices” he or she makes. Autonomy is the basis for respecting the bodily integrity of other persons and allowing them a large degree of control over their own bodies.

In the case of pregnancy, McCarthy notes that while it can give rise to moral concerns or dilemmas for both men and women, the pregnancy itself occurs within the body of the woman, and because of considerations of bodily autonomy “she has a special moral claim to make decisions about whether or not to continue the pregnancy”. This is the basis of the woman’s right to choose to have an abortion. McCarthy correctly notes that the sense of ‘choice’ which is relevant here does not connote anything the woman herself wants or finds attractive, but rather expresses her right to decide what to do with her own body and to live her own life. She articulates this view as follows:

Respect for their reproductive autonomy means respecting the choices that women or girls make in light of their values and goals and their views of the health and life risks that they feel able or willing to take […] Refusal to accept their decisions is to treat woman and girls as passive objects and their bodies as containers or mere life support systems – as means to achieving reproductive goals which are not their own.

This is a powerful argument, drawing on familiar and widely-accepted ideas of personal freedom, and noting just how drastically opponents of legal abortion are committed to restricting women’s freedom. Versions of this argument are perhaps the most commonly-articulated defences of legal abortion.

In assessing this argument, it is useful to consider the most common response offered by opponents of legal abortion. This response draws on a general point about autonomous actions, and a more specific point concerning the specific situation of a pregnant woman

First, as McCarthy herself notes, the principle of autonomy only applies in certain conditions. Autonomy should not be ‘arbitrarily’ or ‘unreasonably’ restricted, and part of what is at issue is which restrictions on autonomy count as unreasonable or arbitrary. More precisely, while moral agents are autonomous, they act in specific circumstances, which will often determine whether or not their action is morally or legally permissible. A familiar range of moral and legal debates concern circumstances which might held to limit our autonomy, ranging from the use of narcotics to driving while not wearing a seat belt to killing in self-defence. McCarthy is correct to draw our attention to the specific circumstances in which women are forced to choose concerning their pregnancy, but her opponents will point to other aspects of these circumstances, principally the life and moral status of the foetus.

Many opponents of abortion would accept that considerations of bodily autonomy mean that a pregnant woman “has a special moral claim to make decisions about whether or not to continue the pregnancy”. For instance, it is widely accepted that while the man who helped to conceive the foetus may have a genuine moral interest in whether or not the pregnancy continues, the final decision should be left to the woman: pregnancy affects her bodily and personal integrity in a way in which it can affect no man. But opponents of abortion will argue that while the woman has a special moral claim to make decisions regarding the pregnancy, for the same reason she also has a special moral burden or duty of care towards the foetus. This moral duty, the argument will continue, is the basis for a legal prohibition of abortion. Personal autonomy allows each of us to perform a wide variety of actions, but certain actions are not morally permissible under any circumstances. These actions often involve harming other persons, but not always (for instance, consider laws governing animal cruelty, or laws prohibiting actions which might cause harm to others but which do not necessarily do so, e.g., prohibitions on drink driving).[2] Abortion, it will be suggested, is one such action: in this case, it is the harm to the foetus which is the moral basis for its prohibition.

The balance between McCarthy’s appeal to autonomy and her opponent’s appeal to the moral status of the foetus might be weighed in two different ways. The first is that McCarthy has presented what is at least a strong prima facie case in favour of allowing women the freedom to have abortions; her opponent has raised what might be a counter-argument, but one which needs to be supported by further reasons for thinking that the foetus actually has a moral status which can outweigh the bodily autonomy of the woman.

The second is that McCarthy has offered at best part of an argument in favour of the right to choose: considerations of autonomy are relevant, but they only justify the right to an abortion in conjunction with some further reason to think that such an action falls within the woman’s sphere of autonomous action, those actions which her autonomy allows her to perform should she choose. In other words, on the first way of weighing the arguments McCarthy has at least done enough to place the burden of proof on her opponent; on the second, McCarthy still has a burden of proof to discharge.

The second principle to which McCarthy appeals is justice, “the right to be treated equally”, which “requires that pregnant women are treated on an equal footing with non-pregnant people”. McCarthy outlines two ways in which Ireland’s current legal regime places extra burdens on pregnant women: medical uncertainty and the need to travel to access abortion procedures. These burdens, she suggests, are “unequal” and “disproportionate”. Not only do laws prohibiting abortion infringe on the autonomy of women; in doing so, they require that pregnant women not be treated on an equal footing with other persons.

As with the principle of autonomy, how one understands these extra burdens will partly depend on one’s background assumptions. First, the principle of justice can only apply in the way McCarthy uses it if there is no morally relevant difference between pregnant women and non-pregnant people; but whether there is such a difference is part of what is at issue. Indeed, as we have seen McCarthy assumes that a pregnant woman is not, strictly speaking, on an equal footing with others when it comes decisions about whether or not to continue the pregnancy; on the contrary, the pregnant woman has a special moral claim to make such decisions. It certainly does not follow that the principle of justice does not apply to pregnant women, but an opponent of abortion can argue that it cannot be assumed that any difference in how pregnant women are treated is thereby unjust.

It is true that McCarthy’s opponent faces difficulties when it comes to the specific burdens she mentions. For instance, it is difficult to think of many other scenarios where a patient may be legally compelled to risk serious damage to her health for the benefit of anyone but herself. An opponent of abortion will find it hard to defend the justice or fairness of these specific kinds of case. But proponents of abortion will often face challenging cases of their own. If the right to choose is based on a woman’s autonomy, it is hard to see why she should not have the right to choose to have an abortion for any reason at all – and many people, by no means limited to opponents of abortion in all circumstances, will find it troubling that a woman could in principle chose to have an abortion because of the sex of the foetus, or because the foetus is diagnosed as having a condition such as Down’s Syndrome. The point is primarily not to do with how many women would actually choose an abortion on these grounds, but rather with the view that an abortion chosen on these grounds is itself an unjust act, or at any rate one which does not show respect for the life of the foetus. The possibility of these cases, even in principle, is arguably the greatest challenge facing a defence of abortion on the grounds of autonomy and justice.

 

[1] Dr. McCarthy’s presentation to the Citizen’s Assembly is available at https://www.citizensassembly.ie/en/Meetings/Third-Meeting-of-the-Citizens-Assembly-on-the-Eighth-Amendment-of-the-Constitution.html. Full disclosure: I know Dr. McCarthy from when we were both studying at UCC.

[2] McCarthy does note that “Autonomously chosen actions can justifiably be limited if it can be demonstrated that they cause harm to others” (fn. 4). But the above examples show that in many jurisdictions autonomy is limited on other grounds, and it is not obvious that none of these grounds provide a legitimate basis for limiting autonomous actions.

Reflections on the Citizen’s Assembly (3): The Presentation of Dr. Joan McCarthy

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