Reflections on the Citizen’s Assembly (4): The Presentation of Dr. Dónal O’Mathúna

 

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 fourth of a series of posts Donnchadh is writing on presentations of ethicists to the Citizens Assembly.

In the context of debates about abortion, autonomy is often appealed to by those promoting greater legal access. Those who wish to restrict access to abortion must either argue that autonomy is not as ethically significant as is often assumed, or that in the specific case of abortion the autonomy of pregnant women should be limited. Dr. Dónal O’Mathúna explores each of these lines in his presentation to the Citizen’s Assembly.[1]

O’Mathúna’s initial characterisation of autonomy is very similar to that offered by Dr. Joan McCarthy: “our freedom to make decisions about our own lives”.[2] He acknowledges that in general it is a good thing that personal autonomy has become more widely respected, but cautions that it is also possible to pay too much respect to it. Furthermore, he argues that this form of autonomy, which he terms ‘self-rule autonomy’, is inadequate when it comes to thinking about abortion. He offers in response a notion of ‘relational autonomy’, in which our autonomy should be limited by other ethical principles, such as the responsibilities we have towards others:

Self-rule autonomy leads to isolation because our focus is on ourselves, not our relationships. Relational autonomy involves those around the pregnant woman and reminds them of their ethical responsibilities.

The first problem with O’Mathúna’s argument is that he seems to mischaracterise self-rule autonomy and its role in ethical thinking. The principle of autonomy concerns the individual agent: if a decision concerns his or her own life, then he or she should be the person to decide what to do. O’Mathúna also makes claims about the autonomous agent, namely that he or she will be concerned only with his or her own interests or desires: “Self-rule autonomy means I choose what I want”. But this is not what the principle says. An autonomous agent is free to make decisions concerning her own life, but it does not follow that she will not (or should not) take anyone else’s interests or opinions into account. Autonomy does not require us to be either selfish or focused on ourselves.

The second problem is that O’Mathúna does not distinguish two very different points which one might raise about self-rule autonomy. First, one might point out that this form of autonomy is of little help in determining which choices are morally speaking better than others. Second, one might argue that autonomy does not apply in certain cases, or can be limited, in that certain actions should not be permitted by law.

The difference between these points is crucial in the context of discussing whether and in what way autonomy should be legally limited. The first point is of little use in such discussions. Appeals to autonomy are not usually intended to help decide what we ought to do, but rather to decide who ought to be allowed to choose. The fact that autonomy does not determine what we should do does not show that it should be limited; rather, it suggests that autonomy should be supplemented in our ethical decision-making by other ethical principles, reasoning, and empathy. Also, note that this supplementation concerns ethics, a person or persons deciding what they ought to do; it does not concern how the law should be framed. Of course, the law should not be completely divorced from ethical concerns, but nor should it simply mirror our ethical views, and not only because many of us in fact disagree concerning different ethical issues.[3]

O’Mathúna raises this first point at a number of places in his article, without seeming to realise that it is of doubtful relevance to the legality or illegality of abortion. He also seems to run together the first and second points, as in the following passage:

The whole basis of society is that certain autonomous acts are neither ethical nor legal. I can lie, cheat, hurt others, or just refuse to help them, but just because I freely chose those things does not make them ethical. We may have the freedom to choose, but still we must decide if our choices are ethical.

It is true that certain autonomous acts are neither legal nor ethical. However, that certain actions are unethical does not by itself mean that they should be illegal. In general, many acts which most of us agree are unethical are permitted by law, in large part out of respect for personal autonomy. Indeed, some O’Mathúna’s examples illustrate this. In Ireland there is no law against lying (except in specific circumstances, such as when one is under oath), nor against hurting others (unless one does so in certain ways, e.g., violently), nor against refusing to help others. These actions may be unethical, but on its own this does not seem a good basis for arguing that they should be illegal.

O’Mathúna is on firmer ground when making the second point, as when he gives examples where certain actions are proscribed: “We put limits on people’s autonomy legally, by insisting they pay taxes or obey the rules of the road”. However, if we regard respect for autonomy as an important part of deciding which laws should hold, limits to autonomy need in each case to be supported by appropriate ethical argument. And there is surprisingly little of this in O’Mathúna’s presentation. In support of limiting the autonomy of pregnant women, he briefly mentions that abortion both harms the foetus and constitutes an injustice to it. But in neither case does he engage in any detail with the substantive ethical and philosophical issues which such claims raise: e.g., how morally significant is the harm which abortion causes to the foetus? Is a foetus the kind of entity for which questions of justice or fairness can arise? If abortion is unjust to the foetus, does it always outweigh the possible injustice of forbidding women access to abortion? Without discussion of these and related issues, O’Mathúna’s defence of the need to limit the autonomy of pregnant women is sketchy at best.

As mentioned earlier, O’Mathúna puts forward a notion of relational autonomy, on which autonomy is balanced by other ethical principles, such as “the responsibilities intimately linked to our choices”:

If we get into bed with someone, we take on certain responsibilities whether we acknowledge them or not. Intended or unintended, a pregnancy may result. This is partly why becoming sexually active is such a momentous decision, with most societies urging that it be reserved until a committed, permanent relationship exists to welcome a child into society.

By agreeing to sex, one does take certain ethical responsibilities, most obviously towards the person with whom one is having sex. But it is not clear whether one also takes on any responsibilities to a person who is not yet conceived. Furthermore, it is not clear whether the responsibilities one takes on in agreeing to sex carry enough ethical weight that one should be legally prevented from acting in certain ways. In this context, it is worth noting that regardless of what responsibilities one thinks a person who has sex thereby takes on, relatively few societies, and none in the Western world, outlaw sex outside of a committed, permanent relationship.

Abortion in cases where the pregnancy is a result of rape presents a different challenge. O’Mathúna’s position is that this does not make a difference, ethically speaking, to the issue of whether or not to allow abortion: “If allowing the unborn to grow and experience life is the right thing in other situations, it does not matter how the pregnancy came to be.”

Many people would regard this view as doctrinaire, and as minimising or ignoring the moral plight of the woman who has been raped. This criticism may not be necessarily well-founded. For someone convinced that the life of the foetus is as morally significant as that of any other human, abortion is not the kind of action which could ever be permitted on the grounds of minimising suffering, even the suffering of someone who has been terribly wronged. By way of (an imperfect) analogy, it is illegal for relatives of a murder victim to kill the person responsible out of vengeance, no matter how grievous the loss they have suffered. This is compatible with understanding the completely human urge many people would have to do so.

However, whether or not it is defensible on its own terms, this view of abortion after rape seems to be quite unpopular in Ireland.[4] More generally, such cases present opponents of a referendum on abortion with a quandary. Arguing against abortion in such circumstances, even if it is consistent with their ethical views, risks presenting their position as at best unsympathetic and at worst downright callous. O’Mathúna’s notion of relational autonomy can be seen as in part an effort to present the anti-abortion case in a softer light, but it is doubtful whether he succeeds.

A final point about O’Mathúna’s notion of relational autonomy, in the context of discussing Ireland’s abortion laws. If the responsibilities pregnant women have towards others justify prohibiting abortion, it is reasonable to ask whether they would justify prohibiting women from travelling to access abortion in jurisdictions where it is legal. If they do not justify prohibiting travel, it is worth asking why this might be. It is not clear whether the notion of relational autonomy allows one to distinguish between these cases, or how it might do so. This suggests that relational autonomy is of limited use in considering the law around abortion, or at least that it stands in need of much greater development if it is to bear the weight of the argument O’Mathúna is asking it to carry.

[1] Dr. O’Mathúna’s presentation is available at https://www.citizensassembly.ie/en/Meetings/Third-Meeting-of-the-Citizens-Assembly-on-the-Eighth-Amendment-of-the-Constitution.html.

[2] Dr. McCarthy’s presentation is also available at https://www.citizensassembly.ie/en/Meetings/Third-Meeting-of-the-Citizens-Assembly-on-the-Eighth-Amendment-of-the-Constitution.html.

[3] One might disagree with this claim, but in that case it is hard to see how there could be a place for any substantive principle of autonomy in one’s view of either ethics or the law.

[4] In an Irish Times/Ipsos MRBI poll, 74% of people wanted abortion available in circumstances including where the pregnancy is the result of rape (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).

Reflections on the Citizen’s Assembly (4): The Presentation of Dr. Dónal O’Mathúna

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