Abortion and Moral Theory.by L. W. Sumner

Abortion and Moral Theory. by L. W. SumnerReview by: Laurence ThomasNoûs, Vol. 17, No. 2 (May, 1983), pp. 323-330Published by: WileyStable URL: http://www.jstor.org/stable/2215153 .

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SUMNER'S ABORTION AND MORAL THEORY 323

Kantian argument depends on his continual acceptance of various Leibnizian notions is especially crucial here, but those more familiar than I am with the texts would be better placed to judge the adequacy of Buroker's textual evidence for her reconstruction. Certainly her version makes a good deal more sense of the importance Kant attributed to incongruent counterparts than more superficial accounts which ignore the Leibnizian background. Buroker's treatment also makes it very clear how much of the groundwork for the later critical views of Kant is independent of the argument from synthetic a priori propositions to transcendentally ideal manifolds of intuition and categories of the understanding.

Perhaps more of a critical investigation of the plausibility of Kant's argument from a modern point of view than is provided would be welcome. For this Buroker would have needed to give us a more extensive, and rather more careful, treatment of modern work on incongruent counterparts than she does. Some of the more subtle points of recent work (the degree to which the existence of global spatial properties is or is not relevant to issues of relationism, the degree to which enantiomorphism-the existence of incongruent counterparts-is and is not dependent on global topological properties of space, etc.) do not really receive as clear or exhaustive an account in her work as they might. A serious critical adjudication of Kant's argument, even giving him various Leibnizian presuppositions, would require getting all of these issues exactly right.

Buroker's book is a serious contribution both to Kantian scholarship and to the history of philosophical views about space, and well worth reading by anyone interested in either of these historical areas. The ideas of Leibniz and Kant outlined are also still of sufficient interest and importance that anyone interested in current philosophical ideas on space and time would benefit by getting a deeper understanding of these views from Buroker's redaction of them.

L. W. Sumner, Abortion and Moral Theory (Princeton, NJ: Princeton University Press, 1981), x + 246., $4.50 (paper).

LAURENCE THOMAS

UNIVERSITY OF NORTH CAROLINA. CHAPEL HILL

Neither Mill nor Sidgwick was dismissive of common sense moral views; on the contrary, both were concerned to show that, in fact, common sense morality has utilitarianism as its deep structure.' However, it is rather unlikely that either would have thought to address the issue of abortion, although both were systematic thinkers of the first rank. The common sense view on abortion hovers around the moderate position which, crudely put, is that abortion is sometimes, but not always, morally permissible, even when the mother's life is at stake. One aim of this book is to show that this position has utilitarianism as its deep structure and that the alternative rights-based positions, the liberal and the conservative positions, are unsatisfactory. The other aim of the book is to show that utilitarianism is superior to rights-based theories in general.



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This is a very rich and provocative book. Utilitarianism is elegantly defended and the book is lucidly written. It would be an awful mistake for any one not to read this book because she or he is weary of the abortion issue. Whether one finds his arguments convincing or not, one will benefit from working through and reflecting upon them.

Sumner so fully deals with both the issue of abortion and utilitarianism that in a review of the book one could easily focus on one to the exclusion of the other. But, I shall resist the temptation to do that. So, I shall pay less attention to details than perhaps is customary in a review. First, I shall consider the com- parison between utilitarianism and rights-based theories. Next, I shall consider Sumner's utilitarian defense of the moderate position on abortion. And, finally, I shall consider his assessment of the two alternative positions. (Sumner pursues matters in the reverse order.) Needless to say, I shall not be able to give any of these issues the full attention they deserve.

I

On a rights-based conception of morality, there must be some rights which are absolute, meaning that no violations are permissible whatever the consequences (41, 45, 168). However, many who claim to subscribe to such a conception of morality would claim that if the choice is between not violating a single individual's rights, whatever they may be, and preventing some catastrophic moral horror, then it is morally permissible to do the latter. In fact, some would claim that it can be morally permissible to violate or, at any rate, to infringe upon another's rights even when it is not a matter of preventing a catastrophic moral horror. For example, If A, who is dying from exposure to a fierce storm, stumbles upon B's unoccupied cabin, which is locked and boarded up for the winter, then A may gain entry into the cabin by force in order to obtain refuge from the storm.3

Now, Sumner thinks that we cannot have it both ways: subscribe to a rights-based theory and allow that the violation of rights may be morally permissible in order to avoid catastrophic moral horror. Only a moral fanatic, he claims, would do the former (171), it being understood that moral fanaticism is, ipsofacto, a bad thing. Thus, for him, a consideration which very much shows the superiority of utilitarianism to any rights-based moral theory is that utilitariansas ... cannot accept that there is any specific kind of action whose performance is absolutely forbidden under all circumstances" (167-8). Utilitar- ianism has no conceptual room for the moral fanatic, so we are asked to believe.

I agree with Sumner that moral fanaticism is a bad thing. I also agree that rights-based moral theorists must take the problem of moral fanaticism seriously. What I fail to see, however, is why this is not a problem for utilitarianism as well. Moral fanatics come in many stripes and colors. The temptation to think that subscribers to rights-based moral views, but not utilitarians, are open to the charge of moral fanaticism stems, in part, from the failure to realize that utilitarians make this charge on their very own turf. After all, the only grounds on which they can press for departing from a right is that happiness is maximized.4 Happiness, though, is but one among many ends which persons value. Thus, to insist that happiness must always be promoted above all others is surely to be fanatical about the promotion of happiness. And this is no less so because what maximizing happiness comes to is an open-ended matter. (186- 194)




Ex hypotbesi, the moral barometer of utilitarian theory takes differences in consequences as its only gradations, which clearly will not do for a rights-based theory. And it is undoubtedly this fact which makes utilitarianism seem so immune to the charge of moral fanaticism, since such fanaticism usually stems from the refusal to consider some consequence or the other. What must be remembered, though, is that utilitarians can only appeal to consequences which differ in their promotion ot happiness. And.while this is certainly one way of individuating consequences, it is hardly the only way. Of course, the utilitarian may claim that all other ways reduce to this. But that, I am afraid, remains to be shown. And until it is, to claim that utilitarianism is superior to rights-based theories on the grounds that it, unlike the latter, is immune to the problem of moral fanaticism is just so much waving of the hand-a case of trying to win a battle simply by declaring victory.

Whether or not there are irreducible ends which individuals value is a matter which I am hardly in the position to settle. However, if there are, then one might very well suppose that, other things equal, the superior moral theory is one which reflects this fact, which may mean that utilitarianism, with its uncompromising emphasis upon happiness, has a formidable strike against it.

Now, as a criticism of utilitarianism it has become fashionable to point out that the theory fails to take seriously the separateness of persons.5 Sumner thinks that this criticism would be telling if it were true that utilitarianism required us to be concerned with maximizing happiness at every turn. But this, he thinks, is false (189). He writes:

A utilitarian theory of law has two distinct levels. At the design level we aim at devising the system of rules and sanctions whose enforcement will maximize utility over the long run for a given society.... At the level of application direct appeal to utility (to what is best) is suppressed, since a system of rules will operate more efficiently (generate more social utility) if it defines offenses, sanctions, excuses, defenses, and so forth in a narrower and more specific manner. (189-90)

Sumner envisions a society in which utility is maximized, but where in their day-to-day living people do not, except in rare cases, have to sacrifice their lives, or some aspect of it, for the good of others. As Sidgwick saw ever so clearly, such a society is possible only if persons see their own good as part of the good of the whole ([12]: 497). And he went on to write as follows:

And it must be admitted that, as things are, whatever differences exists between Utilitarian morality and that of Common Sense is of such a kind as to render the coincidence with Egoism still more improbable in the case of the former. For we have seen that Utilitarianism is more rigid than Common Sense in exacting the sacrifice of the agent's private interests where they are incompatible with the greatest happiness of the greatest number .... ([12]: 499, emphasis added)

Well, things are still that way. Thus, it is just wishful thinking to suppose that utilitarianism can be manifested in the basic structure of a society of limited altruists without their feeling impinged upon. And it should be observed that when it comes to providing individuals with reasons why they should, in some instances, forgo some benefits for the sake of others (the greater good, in this instance), utilitarians have no trump cards which rights-based theorists lack. Indeed, the best evidence of this may be that utilitarians expend a great deal of energy trying to show that, in day-to-day application, utilitarianism looks very much like a rights-based theory anyway. Recall the lengthy passage from Sumner which I just cited.



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II

Turning now to abortion, let us assume that it makes sense to talk about an indirect application of utilitarianism.6 Let us also assume that, as Sumner maintains, "Morality requires the existence of sentience in order to obtain a purchase on our actions" (137) and that "The only form of [moral] standing in a utilitarian morality is full standing" (198). Is Sumner then correct in claiming that utilitarianism underwrites a moderate position on abortion?

His characterization of the three competing positions can be put as follows:

Conservative: From the moment of conception on the fetus has a right to life because it has full moral standing; thus, abortion is justified only when it is necessary to save maternal life (15-20; ch. 3);

Liberal: Throughout pregnancy the fetus lacks a right to life because it has no moral standing; thus, abortion is always morally permissible. It no more stands in need of moral justification than the removal of an ap- pendix (15-20; ch. 2);

Moderate: For early abortions (ones performed some time during the first trimester or early in the second one), the liberal position applies. For late abortions (ones performed late in the second trimester or any time during the third trimester) the conservative position applies (151).

Sumner writes:

An early abortion belongs in the same moral category as contraception: it prevents the emergence of a new being with moral standing. A late abortion belongs in the same moral category as infanticide: it terminates the life of a new being with moral standing (151).

In passing, let me just note that many people who think of themselves as moderates on the abortion issue would not accept the idea that early abortions belong to the same moral category as contraception. They think that those who do not want children have a moral, and not just a prudential reason for using contraceptives. Abortion, they maintain, should not be used as a form of birth control. Sumner, I think, believes that this position is inconsistent. I try to cast some doubt on this supposition in Section III.

In any case, the difficulty which Sumner has with the liberal and the conservative positions is this:

Each view ... invests one of the temporal boundaries of pregnancy with enormous moral significance. The liberal's problem is to show that birth can carry that moral weight, and thus to distinguish abortion from infanticide. The conservative's problem is to show that conception can carry that moral weight, and thus to distinguish abortion from contraception. (88)

Hence, a moral theory, such as utilitarianism, which has sentience as a criterion for moral standing, is on the following grounds, held to yield a view on abortion which is both moderate and superior to the alternatives:

It [sentience] is gradual, since it locates a threshold stage rather than a point [conception for conservatives; birth for liberals] and allows moral standing to be acquired incrementally. It is differential, since it locates the threshold stage during




gestation and thus distinguishes the moral status of newly conceived and full-term fetus. And it is moderate, since it distinguishes the moral status of early and late abortion and applies each of the established views to the range of cases for which it is appropriate [the liberal position for early abortions; the conservative position for late ones]. (153-154)

While I shall not be so foolhardy as to say that utilitarianism cannot underwrite the moderate position on abortion which Sumner develops, the argument that it can and does is, I am afraid, harder to make out than Sumner seems to have realized. This is so even if one assumes that (a) Sumner is, as I believe, right in claiming that the theory is not likely to require people to bear children, population growth being what it is, since raising children is but one of many ways of maximizing happiness and (b) that the greater amount of happiness is obtained if women are at liberty to have early abortions. At most, these considerations suffice to get us to the liberal position for early abortions. But what about the conservative position for late abortions? By Sumner's own arguments it is difficult to see why utilitarianism would not yield a more liberal position on late abortions. After all, while non-early fetuses may be more sentient than early ones, they are hardly rational creatures in Sumner's sense of the word (144). Therefore, it is not clear how the right to life of non-early fetuses can be as stringent as the right to life of fully normal adult human beings. Indeed, the fact of the matter is that Sumner does not give any compelling reasons why the right to life of non-early fetuses should be any more stringent than the right to life of an adult cat or dog, say. And I do not think that he can (see the following paragraph); for he unpacks rationality, at least in part, in terms of interest: ". . . rationality expands a creature's interests ... (144). Mature cats and dogs certainly have more interests than non-early fetuses. Why, some of the former, but none of the latter, even have offspring to look after! Either we morally ought to pay more attention to the lives of adult cats and dogs than many of us have been inclined to suppose or we are at liberty to pay less attention to the lives of fetuses than Sumner claims we are.

This brings me to what I take to be a quite serious tension in Sumner's book. On the one hand, he wants to say that, according to utilitarian theory, all sentient creatures have equal moral standing; on the other, he wants to say that the sensitivities and sensibilities of a creature are relevant to how we should treat it (198-9). And, as I noted in the preceding paragraph, Sumner claims that " . . . rationality [which is not distributed equally among sentient creatures] expands a creature's interests...." Now, when one considers the extent to which sentient creatures differ in these respects, one wonders why we do not, in fact, get a difference in moral standing. Consider, for example, that on the most charitable interpretation of the life of a minimally sentient creature such as a turtle, its interests will fail to trump the interests of a person. Thus, the full moral standing of turtles seems, at best, to be a mere shadow of the full moral standing of persons. If so, then the equality of moral standing which utilitarianism is said to accord all sentient creatures turns out not to be worth very much. It is an equality which pales very quickly in the face of reality. As the pigs: says in George Orwell's Aminal Farm: "All creatures are equal, but some are more equal than others." These considerations strengthen the claims of the preceding paragraph.

III

As we say in the preceding section, Sumner believes that birth cannot bear the



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moral weight that liberals want it to bear nor conception the moral weight that conservatives want it to bear. He is surely right in the first instance. In order to see that this is so, one need only to try coming up with a morally relevant difference between a very late abortion and a very premature birth. Therejust is not one to be had. And since most liberals do not endorse infanticide this clearly presents a problem for them. But conception, now: why cannot it be the moral watershed that conservatives want it to be?

Well, it cannot be that, so the argument goes, because (a) conservatives maintain that what we have from the moment of conception on-a zygote-has full moral standing or, in any event, its potential to be such a being is enough of a morally relevant factor to endow it with a right to life. But, (b) there is no non-arbitrary basis for thinking that zygotes have the potential to become beings which have full moral status, but that sperms and eggs do not. Thus, (c) they have whatever rights that zygotes have. However, (d) since talk about sperms and eggs having rights or any sort of moral claim on or against anyone is obviously silly, so too is talk about zygotes having any such things. (e) The conservatives' claim in (a), then, is false. Therefore, (f) conception cannot be the moral watershed they want it to be, since there is no way to get a morally relevant difference between what we have before and after conception (104). The crucial premise here is (b). Whether or not it is true cannot be settled in the absence of a satisfactory principle of potentiality. And Sumner does not even hint at what one might look like.

If (b) strikes one as so obviously true, then one should consider just how difficult it is to formulate a satisfactory principle which would entail it. Con- sider, for example, the following:

(P) (a)(,8)[ a is potentially a /8 if a is an ingredient which is indis- pensible to the very existence of 18 or any 3-stages].

(P) certainly entails that sperms and eggs have the potential to become beings which have full moral status. If it seems plausible enough, then note that it also entails that water is potentially every living thing. After all, a completely dehydrated person, animal, or plant is a very dead one, indeed! I cannot imagine anyone wanting to make this potentiality claim about water. So (P) clearly will not do. But if not, then on what grounds can a defender of (b) stand so confident that it is true? In fact, is it not plausible to maintain that if a person takes (P) to be false, then he really ought not to insist that (b) is true unless he can proffer independent considerations on behalf of (b)?

I have tried to cast some doubt on the truth of (b). Let me tempt you with an argument to the effect that even if (b) is true, (f) may nonetheless be false. Consider that whereas the sentence

(i) Prior to conception persons acquire a certain genetic make- up

is false, the sentence

(ii) At the moment of conception, persons acquire a certain genetic make-up

is certainly true. And since it is also true, as Sumner himself would seem to allow, that




(iii) The genetic make-up of a fetus can have a bearing on whether or not one morally ought to have an abortion or, at any rate, whether it is morally permissible to do so, as in the case of a genetic make-up which would give rise to spina bifida or Tay-Sachs disease,

then the suddenness with which conception occurs is. no bar to there being a morally relevant difference between what we have at the moment of conception and what we have immediately prior to that (53, 56). Hence, (f) is false. At no point in the argument have I supposed that (b) is false, though one might say that if (f) is false, then (b) must be that as well. If so, then we have more reason to doubt the truth of (b) then I have let on. In regarding conception as a moral watershed, conservatives may be on more secure ground than Sumner may want to acknowledge. And one does not have to be a conservative to arrive at this conclusion.

IV

Abortion and Moral Theory is a first-rate book. It is written with maturity of though and depth of insight. The author is keenly aware of the fact that philosophical arguments, especially those in moral philosophy are rarely without any point to them at all-that seldom are such arguments trounced. Thus, his book displays an enormous sensitivity to the issues. And though Sumner may, in the end, fail to persuade, he does much to sharpen and to refine the issues between utilitarians and rights-based theorists, on the one hand, and the three abortion camps, on the other. Moreover, those who are convinced that where they stand is precisely where they should stand will probably want to shore up the considerations which got them to stand there or, at any rate, which keep them from moving. And, finally, the book has this virtue: there is much in it that is most certainly right.7

REFERENCES

[1] Bruce Ackerman, SocialJustice and the Liberal State(New Haven, CT: Yale Univer- sity Press, 1980).

[2] Alan Donagan, The Theory of Morality (Chicago, IL: University of Chicago Press, 1977).

[3] Ronald Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977).

[4] Joel Feinberg, Rights, Justice and the Bounds of Liberty (Princeton, NJ: Princeton University Press, 1980).

[5] , "Voluntary Euthanasia and the Inalienable Right to Life," Philosophy and Public Affairs 7(1978): 92-123.

[6] Alan Gewirth, Reason and Morality (Chicago, IL: University of Chicago Press, 1978).

[7] H. L. A. Hart, "Between Rights and Utility," in Alan Ryan, The Idea of Freedom (New York: Oxford University Press, 1979).

[8] John Stuart Mill, Utilitarianism. [9] Thomas Nagel, The Possiblity of Altruism (New York: Oxford University Press,

1970). [10] Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974). [11] John Rawls,A Theory ofJustice (Cambridge, MA: Harvard University Press, 1971). [12] Henry Sidgwick, The Methods of Ethics, 7th ed. [13] Peter Singer, Practical Ethics (New York: Cambridge University Press, 1979).



330 NOOS

[14] L. W. Sumner, Abortion and Moral Theory (Princeton, NJ: Princeton University Press, 1981).

[15] Judith Jarvis Thomson, "Rights and Compensation," Nou-s14(1980): 3-15. [16] Bernard Williams, "A Critique of Utilitarianism," in J. J. C. Smart and Williams,

Utilitarianism For and Against (New York: Cambridge University Press, 1973).

NOTES

'Cf. Mill ([8]: ch. 1) and Sidgwick ([12]: BK IV, ch. 3). 2The kind of utilitarianism defended is classical (177-186). Rights-based theories

are, for Sumner absolute ones, so are natural law theories (168), which he regards as duty-based theories (83) which can be unpacked as rights-based ones (87). Absolute theories are to be contra ted with qualified ones (168), the claim being something like, but obviously not just thAt, any instance of the latter is better than any instance of the former, utilitarianism being an instance of the latter. For a most illuminating discussion on the difference between rights- and duty-based theories, as well goal based ones, see Dworkin ([3]: ch. 6).

3This example is owed to Feinberg ([4]) and receives mucb fruitful discussion by Thomson ([ Nozick, who subscribes to a rights-based conception of morality, appreciates the difficulty of insisting that a person's rights be respected though doing so will result in a catastrophic moral horror ([10]: note 30). What he would say about the Feinberg example, however, is not clear. I assume that for a libertarian, property rights are pretty absolute. But this need not be so with all rights-based theories.

4Happiness, for Sumner, is to be unpacked in terms of agreeable experiences rather than satisfaction of wants (179-183, esp. 182).

5See Hart's ([7]) most illuminating discussion of Dworkin ([3]) and Nozick ([10]) in connection with this point.

6That there are limits on just how indirect utilitarianism can be and still be regarded as such is masterfully developed by Williams ([16]).

7A number of the central ideas in this review were presented in the NEH Inter- professions Seminar, "Competing Rights Claims in a Complex Society," which I directed in the summer of 1981. The seminar participants, all of whom were from non-academic professions, proved to be a most gracious and instructive sounding board. Further refinement of the ideas presented here owes must to conversations with Terrance McConnell and Richard Nunan. Finally, I am indebted to L. W. Sumner, himself, for comments upon this review.

Hans-Georg Gadamer, translated and with an introduction by P. Christopher Smith,Dialogue and Dialectic: Eight Hermeneutical Studies on Plato

I. M. CROMBIE

OXFORD UNIVERSrTY

In addition to eight essays of Gadamer's on Platonic themes written at widely varying dates, this book contains an introduction (and some footnotes) by the translator, a glQssary of Greek words, and a not very comprehensive index. It is a pity that it does not contain a bibliography of Gadamer's other relevant writings. The essays vary considerably in weight; there is more to wrestle with in the last four than in the first four.

They are described as "hermeneutical" studies, and this may lead one to



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Abortion and Moral Theory.by L. W. Sumner