Beyond the Abortion Wars, Chapter 2: The Philosophical Question

Chapter 2 explores the question of the moral status of the fetus.  Here, a quick note--Camosy uses the term "prenatal child" in places as a substitute for "fetus."  He says that his use of the term is not a polemic, but I confess to a bit of skepticism on that point.  I have never encountered the term "prenatal child" before reading Camosy's book, whereas "fetus" is a real medical term.  Given the politicization of language in the context of abortion, I think Camosy's language choice is unfortunate, as it detracts from his attempt to forge some kind of middle ground.  I'm going to go with "fetus" throughout, because I think medically-approved terms are the closest we are going to find to neutral ground.

Anyway, Camosy begins by doing important work in defining the question that one is trying to answer with this exploration.  It is not, as many assert, an attempt to figure out whether the fetus is "alive," as telegraphed by the slogan "life begins at conception."  Of course the fetus is alive, but so are the egg and sperm cells that preceded the embryo and fetus.  In fact, the statement "life begins at conception" is, strictly speaking, false, and in any event irrelevant.  The real question is either "when does humanity or personhood begin?" (seen through a philosophical lens) or "when do human rights attach to a person?" (seen through a legal lens).  No one asserts that egg and sperm have "personhood" or "human rights," and the vast majority of folks (Peter Singer et al. excepted) believe that a newly born baby does have personhood and human rights.  The question then is (1) when does the transition between the two poles occur; and (2) how to we know that.

The first potential transition point is viability, meaning the point at which the fetus can live outside of the womb as an independent person.  The landmark U.S. Supreme Court case Roe v. Wade in 1973 (about which more will be said later) tried to stake out viability as the definitive point.  The problem with viability for Camosy is that it is a contingent condition, rather than something internal to the development of the fetus.  A fetus that could live outside its mother if the mother happened to be located at the Cleveland Clinic would not necessarily be viable if the mother was stranded alone on a deserted island.  One might object that this is an unnecessarily literal interpretation of viability; it's not whether some particular fetus is viable in its individual circumstances, but whether a fetus is hypothetically viable at a particular point in development.  Presumably, then, the Cleveland Clinic sets the standard for what is viability, since a mother could hypothetically be a patient at the Cleveland Clinic.

But that doesn't really fix the problem, because viability is still contingent on the state of medical knowledge and technology.  A premature baby born as young as 21 weeks has survived and thrived with the help of modern Neo-Natal Intensive Care procedures.  If he had been born 50 or 100 years earlier, he surely would have died soon after birth.  Thus, if viability is the standard for personhood, he was a person upon birth now, where he wouldn't have been a person upon birth 100 years ago, as a result of medical technology.  From a philosophical perspective, it seems bizarre and problematic that personhood is dependent on the state of technology--that technology is somehow making fetuses "a person" at an earlier point in time.

I get Camosy's philosophical objection.  But, as a pragmatic standard for determining when abortions could be authorized, viability has much to recommend it.  At the point of viability, there is a sense in which the interests of the mother and the interests of the fetus are no longer in necessary conflict.
 At the point of viability, if the mother decides she no longer wants to raise the child, she could be induced into labor and immediately give the child up for adoption, preserving both her autonomous choice and the life of the fetus.  Now, this doesn't actually happen because we, as a society, won't pay for the medical care necessary to nurse a 22 or 28 week old fetus to health.  But that, I am sure Camosy would agree, speaks to the broader problems with the way in which our society treats and supports vulnerable populations, not to the basic principle.  Roe, for all of its conceptual problems, is right about the fact that there is no real argument to justify a post-viability abortion.

Moreover, the advance of technology pushing the point of viability further back into the pregnancy, on this thinking, serves pro-life interests.  Imagine it would be possible to transplant a embryo of any level of development into some sort of artificial womb (let's put aside the moral objections that some, i.e. the Catholic Church, have to artificial reproductive technologies).  In my view, the existence of such a technology would make all abortions unjustifiable; there is no reason to terminate the embryo/fetus when it can develop and eventually live on its own without in any way impacting the mother.

Camosy would argue that I am conflating, or at least confusing, the question of the moral status of the fetus with the relationship between the mother and fetus, and in a sense he is right.  My point is only to highlight that, while viability may be problematic as a tool to discuss personhood, it nevertheless has great relevance to the abortion discussion.  Viability, for me, represents a firewall point both morally and legally.  Whatever one thinks about restrictions on abortion pre-viability, if the child can be born and live on its own, and such a birth would not place the mother's life in immediate danger, I see no conceivable justification for aborting it.  Viability, in my mind, serves as a "least common denominator" point of agreement.

Camosy also asserts that a viability-based approach is problematic because it makes "dependence"--in this case on the mother--a basis for denying the personhood.  In this, one sees hovering in the background questions like euthanasia, as well as Peter Singer-type arguments that infanticide is morally acceptable (as newborn babies are dependent on their parents in a radical way).  Fair enough, but the dependence of the pre-viability fetus on the mother strikes me as a quantum level above that of the newborn baby.  He also mentions that moral systems, especially the Catholic one, tend to place a special emphasis on protecting the rights of vulnerable, dependent people.  Again, fair enough, though it begs the question of the personhood of the fetus.  Despite these quibbles, I think Camosy is basically right that viability is not, in and of itself, a strong enough pole in which to ground personhood.

Another major philosophical approach is what Camosy calls the "Trait X" model--a fetus becomes a person once it obtains or manifests some specified trait associated with humanity, such as rationality or the ability to feel pain.  Of course, the question becomes "which trait?"  And, as Camosy shows, when you start searching around for traits, you end up with one of two problems.  Either you pick a "lower-end" trait, like feeling pain, in which case there is no cohesive argument for not providing full human rights to animals that experience similar traits.  Or you pick a "higher-end" trait, like certain accounts of rationality, and open the door to the idea that babies and those with certain disabilities are not really people after all.

Camosy instead advocates for "potential" as the touch-stone for personhood.  In essence, "potential" is a version of the higher-end Trait X argument ("create and pursue a life of meaning" seems to be the trait he has in mind), with added qualification that it includes those with the potential to accomplish such a thing.  That certainly avoids the newborn babies issue.  The difficulty, however, is what does one mean by "potential"?  And here, Camosy goes down the Aristotelian road--potential is something that "already exists inside a being as the kind of thing that it already is."  Or, said another way, potential exists when the thing can become the potential without a "nature changing event" that would change it into something else.

Among the examples he uses, the clearest is that of an acorn.  An acorn, in Camosy's view, has the potential to become an oak tree, but not does have the potential to become a desk.  Even though an acorn could grow into a tree, be cut down, and then made into a desk, cutting the tree down and making it into a desk changes it into something else, and so it cannot be said to be part of the acorn's potential.

The problem here, and it is my problem with Aristotelian arguments of this type, is that whether or not State A (i.e. the acorn) and State B (i.e. the oak tree) are the same "thing" depends entirely on how you define the "thing" in question.  Before you can figure out whether or not something undergoes a "nature changing event," you first have to define its "nature," and depending on how you define it, anything can either be or not be a "nature changing event."  Call me a post-modernist, but I think this kind of argument ultimately turns into a kind of word game.  Aristotelians like Camosy tend to present these arguments as if the definition of the "thing" is self-evident, but I think that is far from obvious.

I'm also not sure if this idea solves all the problems he thinks it solves.  For example, Camosy uses the example of a severely mentally disabled person "who has the cognitive and mental capacities similar to those of a high-functioning dog."  For Camosy, this individual has the potential to do everything any other person does, but for the disability.  That seems to stretch the meaning of potential beyond any reasonable bounds.  Is it meaningful to say that I have the "potential" to be an NBA power forward, but for being 5'5" and uncoordinated?  Only insofar as the NBA power forward and I are the same "thing," which leads us back to the definition question.  It is true that in a sense I am the same type of "thing" as an NBA power forward and in a sense I am a different type of "thing."  Which one counts here?

I don't mean to suggest that this argument from potential is meaningless or stupid.  But I also don't think it is a clear as Camosy would have us believe, because I think it is too malleable to produce a definitive answer.

Camosy ends the chapter with a discussion of the idea of a "grey area," or transitional phase between a person and a nonperson.  Under this approach, some or all of period of the life of the fetus is an intermediate period between no human rights (as with a sperm or egg) and full human rights (as with a newborn), and so the fetus has some rights but not full protections.  I find this to be a fruitful direction to explore, particularly as it is the direction (as I understand it) that Jewish thought tends to take.  Camosy punts on this question to Chapter 6, and when he gets there he doesn't really do much with it.  It's a bit of a lost opportunity, I think.

He also states that the Catholic Church does not take an official position on the personhood of an embryo.  That's news to me.  He cites to a Vatican document, Dignitatis Personae, paragraph 5.  I guess I just read that document differently than Camosy does.  Paragraph 5 does say "[i]f Donum vitae, in order to avoid a statement of an explicitly philosophical nature, did not define the embryo as a person, it nonetheless did indicate that there is an intrinsic connection between the ontological dimension and the specific value of every human life."  But then it ends by saying "[t]he human embryo has, therefore, from the very beginning, the dignity proper to a person."  Maybe they are using some technical definition of "dignity" that I am not familiar with, but that sounds like full personhood to embryos.

Now, I think there are solid reasons for concluding that an embryo, particularly before the end of the "twinning" period (which I will get to later), is not a person, so I am not arguing with Camosy here.  But one of Camosy's key claims is that his proposals will 100% pass muster with the Vatican, and I'm not sure he's on solid ground here.  Just saying.


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