140

ABORTION AND THE LOGIC OF MORAL JUSTIFICATION 1

HAROLD F. MOORE

In this paper, I will assume that abortion is a moral problem. If the assump- tion is a reasonable one, then it would seem that understanding of the various divergent positions might result from an examination of the structure of moral argumention used to justify a particular position. I shall focus on three significant stances taken on abortion: Callahan's recommendation of a per- missive law, 2 the conservative position generally taken by Catholic philoso- phers and theologians, 3 and the recent Supreme Court decision. 4 My aim is the understanding of the respective positions. However, I will argue that a case can be made, at least in provisional fashion, for a permissive law. In doing this, I will sketch and criticize the logic of the respective positions.

II

If there is a recurrent theme among those who condemn abortion as im- moral, it is their utilization of biological data to argue for the humanity of the fetus. For many Catholics, the humanity of the fetus is the essential question. 5 Biological data, however, do not yield the conceptual distinctions desired by the moral philosopher. The bare existence of physical life is cer- tainly too broad a notion as a norm for protection. To argue that the fetus is a form of personal human life, with all the attendant rights of a human person seems to me an untenable position. Yet, I shall not press criticism along these lines. While it seems to me that there are differences between the life of the fetus and the life of an individual social being; I believe to press criticism on these lines is morally crude. Examine the claim made by Thomas Szasz:

During the first two to three months of gestation (when most abortions are performed), the embryo cannot live outside the womb. It may therefore be considered part of the

1 I would like to thank Mary Ann Moore and Jill Whitney for their helpful comments. 2 Daniel Callahan, Abortion: Law, Choice and Morality (New York: MacMillan, 1970). a In using the gross terms "conservative" and "Catholic," I am seriously oversimplify-

ing reality. I am not unaware of the serious differences that exist among the various con- servative positions. I am merely using a name to denote those who generally condemn abortion as an inherently immoral practice.

4 Roe vs. Wade, decision by Justice Blackmun. 5 R. F. Drinan, "The Inviolability of the Right to Be Born," D. T. Smith, ed., Abortion

and the Law (Cleveland: Western Reserve University Press, 1967), p. 107.

Discussions 141

woman's body. If so, there ought to be no special laws regulating abortion. Such an operation should be available in the same way as, say, an operation for the beauti- fication of a nose. 6

To equate the beautification o f a nose with the destruction o f a potential h u m a n life is a mind boggling claim that lends little insight into what is in- volved in the abort ion issue.

To be sure, the biological data and its interpretation are valuable. But since there are, at present, no decisive reasons for interpreting the data one way or the other; obfuscation, no t clarity, is the likely result. Much of the biological controversy can be avoided by finding a non-controversial "inter- pre ta t ion" of fetal life. I believe such an interpretation can be found; and that such an interpretation can be used as a basis for the strongest possible conservative position. The argument is as follows:

1. The fetus is clearly a potential human person. (Empirical Claim). 2. All forms of human life, actual or potential, have a fundamental right to their

continued existence. (Moral Rule). 3. No set of social or moral considerations ever constitutes a set of sufficient condi-

tions for the moral legitimation of direct killing. 7 (Moral Rule.) 4. Abortion is morally wrong.

I believe this is the strongest possible case that can be made for the conser- vative position. The argument is phrased in secular language. As such, it claims the at tention o f a large segment o f the human communi ty independent o f the t ruth o f moral theology, natural law and Church dogma. A Catholic, o f course, can add premises to the argument to show how his theological commitments provide the rationale for the moral position. But the argument is self-sufficient. I t is surely the bare shell o f a position. But simplicity has in its favor the addit ion o f conceptual force as the argument entails little in the way o f other substantive, more dubious commitments. Since this is the strongest argument, I take it to be a paradigm case. Objections that can be raised against it are almost surely to be decisive against arguments with more sweeping premises.

(4) is entailed by the conjunction o f (1), (2) and (3). (1) is an empirical claim that is no t at issue. I am not aware o f anyone, no matter how radical his posit ion on abortion, who has denied it; nor can I think of conceivable grounds for denying that a fetus is a potential human person. Consequently, the crucial points to be examined are (2) and (3): the moral rules on which the conservative posit ion is based.

6 Thomas Szasz, "The Ethics of Abortion," Humanist, September-October, 1968, p. 148.

7 For some conservatives, the principle of "double effect" can be used to justify abor- tion in certain limit cases as long as the killing is not "direct." The principle attempts to recognize that one action can have different effects; some good, some bad. At a later point, I will criticize the principle. For a discussion of the principle as related to the morality of abortion, ef. Germain Crisez, Abortion: the Myths, the Realities, and the Arguments (New York: Corpus Publications, 1970), p. 329.

142 The Journal of Value Inquiry

(2) is the strongest claim the conservative can muster. It is difficult to see what sense can be made of the notions of human life, human worth and the necessity of the moral point of view unless there is a clear commitment to the moral rule expressed here: human life is valuable. However, there is a problem involved in fleshing out general rules with concrete content. From the general claim that life is valuable two more specific rules can be formu- lated:

5. Potential mothers have rights. 6. Potential life has some intrinsic worth.

(2), while not strictly entailing (5) or (6) provides their rationale. To do away with either (5) or (6) would seriously downgrade the value expressed by the original moral rule. s The problem that arises in the dispute about the morality of abortion is to decide what is the appropriate course of action when moral claims like (5) and (6) (which both stem from a more general rule like (2)) conflict. 9 I suspect, although this is an empirical question, that there are cases in abortion decisions where a conflict of rights exists. It must be stressed that the rights of the woman must be morally significant rights: health, sanity, and other responsibilities would be examples of morally relevant con- cerns.

There are several moves that can be made at this juncture. One move would be to deny the reality of the conflict. A conservative, Josef Fucha, has taken this line.

The difficulty of a conflict of rights can easily be solved if one understands that there are no heterogeneous orders and demands of the natural law placed side by side with- out any relation to one another. There exists indeed an order of goods and values, of commands and demands through the very nature of things, so that there can be no true conflict of rights but at most an apparent conflict. 1~

Fuchs' metaphysical theory assures him that there can be no conflict of rights. The difficulty with an a priori approach of this kind, as Peirce noted,11 is that human experience does not readily submit to our a priori demands. In some cases, it is a crashing fact that a conflict of morally relevant rights is involved. Fuch's problem is that the claim of the existence of a clear value hierarchy has no cash value, since in fact people experience conflicts and

8 The reader should be aware of an assumption that I am laboring under: when two "right" claims exist, it is not sufficient to settle the question by pressing one right claim to the exclusion of the other. For, when faced with a disjunctive option, value "loss" is going to occur - no matter which path is taken. The question as to whether one set of rights always takes precedence will be discussed at a later point.

9 I am assuming, in line with a policy adopted earlier, that it makes sense to speak of the "rights" of the fetus.

lo Josef Fuchs, NaturalLaw (New York: Sheed and Ward Co., 1965), trans. H. Rechter

and J. Dowling, p. 123. 11 C. S. Peirce, "The Fixation of Belief", in J. Buchler, ed., Philosophical Writings of

Peirce (New York: Dover, 1940).

Discussions 143

disagree about priorities involved in solving them. His claim might even be true, but as long as the "order of values" is unknown, incompletely known to man, or widely contested, it carries very little conceptual weight.

But if this criticism is accepted, the pro-abortion position could then accept the moral rule expressed by (2), but argue that the possible conflict shifts the decisive burden of argument from (2) to (3). The point can be made with a thought-expefiment.

Let me sketch a conceivable society. The morality of this society is based on the sanctity of life and on the integrity and autonomy of the individual and his fights. Let us suppose that the morality is universally accepted in the society. Let us suppose that there is a subset of the set of human rights that can never, in principle, be exercised. It is clear that the described state of affairs would be deemed both strange and inconsistent. What sense does it make to speak of the existence of rights if they can never, in principle, be exercised?

Note that I am not saying that a right, to count as a real right, must be exercised. My right to defend my life, for example, is still a real fight, though I may never be forced to exercise it. What I am saying is that a right is a real right only if I am not forbidden, in principle (as a matter of policy for exam- ple), to exercise the right in question. Rights that can't be exercised, don't amount to rights at all.

I hope the story makes the thrust of my earlier remarks clearer. Women, forced to go on with an unwanted pregnancy, can be conceived of as members of our hypothetical society. There are only two possible ways to explain the situation by the members of our conceivable society; or mothers faced with restrictive abortion laws.

7. The members in the society really don't have the rights in question. 8. There are other rights in the situation that conflict with the non-exercisable right

that supersede any weight that the exercise of the non-exercisable right might carry.

Either (7) or (8) must obtain. The rejection of possible conflict (Fuchs' claim) would require asserting (7) of mothers. But Fuchs' claim, and conse- quently (7) has been rejected. This leaves (8) as the only possible under- standing of the situation. But (8) is really a restatement of (3). The assump- tion that women have fundamental rights, but can't exercise them is explained only by (8); or in different language: the fights of potential life always take precedence over the rights of the mother. But this move deprives the conser- vative of his strongest weapon. The recognition of the reality of the conflict situation neutralizes the moral force that can be assigned to (2) by a conser- vative. Given the reality of morally relevant rights of the mother; conser- vative appeals to a moral rule like (2) are simply beside the point. For a whole- sale rejection of her legitimate claims is to downgrade the very moral rule that one is operating with. Consequently, the crucial point for the conser- vative is to show why there can never be a set of morally relevant sufficient conditions for the justification of an abortion.

144 The Journal of Value Inquiry

Several remarks must be made before (3) is examined. Social reasons, ones that might be relevant in (3), are not necessarily utilitarian reasons for making a moral decisionJ 2 On the contrary, social reasons can be moral reasons. The justification of this claim is a conceptual truth: certain kinds of social ordering would make morality, in general, impossible. The kinds of social ordering I have in mind are those that would be irrational, arbitrary, rob the individual of his moral autonomy, and so on.

If the preceding remarks are true, then it would seem unwise to formulate a moral principle in vacuo, apart from the relevant social reasons. It must be stressed that the moral rules involved are applied to and not derived from the social ordering. Consequently, the relevance of social reasons to the formu- lation of a moral policy does not necessarily culminate in "utilitarianism." It is difficult to see what is gained by putting all aspects of human moral ex- perience under the banner of one particular theory. Given the complexity of moral problems, it would not even seem possible to do so. But in any event, it is important to note that to attack "utilitarianism" will not suffice to attack those who reject (3). 23

Now to justify (3) as a moral rule, it must be shown that the rights of the mother are always subservient to the rights of potential life. I believe the only way to show this would be to show that (3) is a necessary condition for morality. But if there are counterexamples to (3), then it would seem that the conservative position, as its conceptual force hinges on the justification of (3), breaks down. And to deny (3) would be to justify the morality of abortion in certain cases.

That many conservatives understand the logical geography of the situation is shown by the way in which they attempt to justify the moral rule embedded in (3). The general procedure is this. Something like (3)is denied, and then moral chaos and contradiction is deduced from its denial. This procedure is tantamount to saying that (3) is a necessary condition for morality. 14 To reject (3) is to invite the legitimation of euthanasia, selective breeding, even Auschwitz; in short, the end of morality.

To set the problem, it is important to note that conservatives have generally argued that the relation between the legitimation of abortion and the "end of morality" is a logical one. That is, to justify abortion is to use logic that would justify Auschwitz. But this is somewhat dangerous ground for the conservative. For he risks his entire conclusion on the categorization of the logical relation between abortion and the "end of morality." Suppose, for example, that the ZPG advocates are correct: unless every method of "birth control" is employed, deliberate, foreseen moral chaos is made highly prob- able. The conclusion is obvious. If the relation is contingent, then it would

12 An assumption that Grisez is apparently laboring under, pp. 288 ft. 13 As Grisez does, p. 293. 14 Again, Grisez supplies the relevant moves, p. 342. is It must be stressed that the statement of the ZPG advocate is being used for the pur-

pose of argument.

Discussions 145

be possible to assert that chaos results from the denial of abortion as well as from its practice. It is ditficult to see how the conservative could begin to work his way out of this conceptual knot and retain his original position.

Is the relation between the legitimation of abortion and the "end of moral- ity" logical or contingent? Let us return to the ZPG advocate. Suppose he made the following claim: "The justification of abortion will not have the dire consequences foreseen by the conservative." Contrast that claim with the following: X is a bachelor, but he happens to be married. In the second case, I can, without leaving my armchair, tell the person who made the claim that he is wrong, and be certain that he is wrong. In the former case, I might disagree with the ZPG advocate, but there exists the possibility that I am wrong. If the relation involved were logical, this state of affairs would not be possible.

Second, there is empirical support for regarding the relation as contingent. Empirical analysis does not yield moral conclusions. But human experience can be used to test the adequacy of our conceptual distinctions. In the coun- tries that have the permissive laws, as Callahan notes, 16 the apocalyptic consequences foreseen by the conservative do not obtain. The current state of affairs is not optimal, but few human social arrangements are. The crucial point here, is that there is experiential support for construing the relation as contingent.17

A conservative might respond to these arguments with the following. He might say, that the conservative claim is not at all about actual consequences predicted (Today abortion, tomorrow Auschwitz), but an in principle claim that would remain true even if Auschwitz, which surely has many causative factors, never ensued. The conservative's main point is that the right to human life has been set aside for some other right, relativizing values which support rational morality. The crucial distinction here is not between "logical" and "contingent," but the question is rather whether abortion amounts to or produces moral breakdown. Conservatives make both claims, while the criticism of conservatism has only been directed at the latter.

There are several answers to be made to this kind of response. First, it is important to decide the question of contingency. For if the relation were logical, endorsing abortion would be to endorse other actions which are clearly immoral. By arguing for the contingency of the relation, I have sup- plied a wedge against that particular line of criticism.

As for the second crucial claim: does abortion amount to moral chaos? The conservative claim apparently assumes that we can give a wholesale answer to the question. Examine just a few of the possible cases where abortion is a live option. Consider the case of the mother, who after taking all possible contraceptive precautions, is carrying a child. Suppose after a rational, sen- sitive examination of all the possibilities involved, she reluctantly decides to have the abortion. Compare that case with the case of a woman who has

16 Callahan, Chapter 8. 17 It should be noted that logical relations do not admit of verification or falsification.

146 The Journal of Value Inquiry

tried to conceive, succeeds, but then decides for arbitrary, irrational reasons that she will not have the child. Compare those cases with the case of a Catho- lic doctor who destroys the fetus piecemeal because the mother has cancer o f the uterus, a8 The list o f examples can be indefinitely extended.

I imagine, in some moral ly trivial sense, all these acts can be lumped together as "abor t ion . " Yet I believe the above acts at best have a cer ta in "family resemblance? '19 In one sense they are the same act. But in many moral ly relevant senses, they are quite different activities. Consider what is involved in the first case: a conflict o f rights, rationality, sensitivity and a serious examination o f alternatives. The existence o f these variables make the first case a moral ly different state o f affairs than the second. It would seem to me that moral decision making of the first kind would preclude the arbitrary, irrational and cruel life style foreseen by the conservative. Deci- sions o f the first sort hardly amount to moral chaos.

But if all the foregoing is anywhere near the mark, then (3) cannot be used to provide the desired conclusion. At best it can be employed to say that we should have a strong bias in favor o f fetal life; not that fetal life always takes precedence in conflict situations.

Recall the discussion of the family resemblance claim. Consider the first case again. Suppose after all the deliberation and consideration o f the issues, the w o m a n decides that she cannot continue as a moral agent and have the child that she did no t Want and took every precaution against having. Further consider the logically possible state o f affairs that her assessment o f the situa- t ion is correct. Whatever the aesthetic insensitivities o f the Kant ian dictum that . . . . ought" lmphes " c a n , " she ought not to have the child. I fail to see how someone Can be obligated to do x, if they cannot do x. 2~

18 This is the only one of the acts justified on the model of double effect. For a complete discussion of the necessary conditions for its employment, el. Grisez, p. 329. A crucial difficulty with the principle is this. One necessary condition for its employment is that the evil consequence, killing the child, cannot be directly intended. How one knows what one is doing, knows the consequences of what one is doing, but doesn't intend what one is doing seems to be to be logically impossible. For a much richer discussion of the relation between action and intention, ef. S. Hampshire, Thought and Action (New York: Viking, 1959).

19 For a discussion of "family resemblance" cf. L. Wittgenstein, Philosophical[nvestiga- tions (MacMillan: New York, 1954), # 66, 67.

20 It is crucial to note that the burden of this point rests only partially, not exclusively, on the "ought" implies "can" claim. This is best shown by the following. If "ought" im- plies "can" is true, then it would also be true that "It is not the case that I can do some- thing" entails that "I ought not to do it." But in contrapositive form the principle is clearly unacceptable. For example, I might make a promise and then intentionally put myself in such a situation that I could not keep my promise. We would not say, in this case, that breaking the promise was justified. On the other hand, I might make a promise, fall sick and be prevented from keeping it. In this case, I would be excused. These reflections show why the burden of the argument cannot be placed solely on the "ought" implies "can" claim. The excusing reasons for the "cannot' 'must be morally relevant.

Discussions 147

The only response I believe that could be made at this juncture would be to try and show the woman how her action precluded the possibility of morality in general. But if the form of (3) under discussion is not a necessary condition for being moral, as the discussion of (3) seems to indicate, then she could still have the abortion.

I conclude that the conservative position is insufficient to underwrite the desired conclusion. But perhaps I miss something. Perhaps the structure of argument is a long way from something essential to the conservative position. What kind Of consciousness is being reinforced with the taking of any life, actual or potential? Are there any limits to what can be made morally per- missible? Given the technological possibilities humans face in the immediate future, these concerns seem to me to be both legitimate and important. But important as the concerns of the conservative might be, I remain convinced that the position does not possess the conceptual resources necessary for dealing with the problems.

III

The spirit Of this paper is consistent with many of the claims made in Callahan's Abortion: Law, Choice and Morality. The Problems faced by a moral position like the defended one will be similar to problems that Callahan must face.

To translate the results of the previous analysis into a public policy is a real problem. The moral analysis would seem to suggest that there ought to be some kind of therapeutic abortion law. General guidelines might be stipulated to allow abortion in certain cases where the mother has a legitimate fight to press. One possible case was discussed earlier: reasons of health, mental and physical, might be other appropriate concerns. But, apparently, using the moral analysis to underwrite a therapeutic law would be a mistake. Herbert Packer writes:

Our (American) abortion laws present a classic case of the operation of the crime tariff. Given the inelasticity of the demand for abortions, the legal prohibition has the effect of raising the risk and reward for the illegal practitioner and also depressing the quality of the services offered~ This phenomenon will not be relieved to any appreci- able extent by the moderate or "therapeutic abortion" approach to law reform. Nor will that approach diminish the fact, nor the general knowledge of the fact, that every year upward of a million illegal and possibly dangerous abortions take place in this country. More seriously, it must be recognized that moderate reform is essentially middle-class reform. It benefits those who are sufficiently well educated, well connec- ted and well financed to take advantage of the liberalized law. Where will the ghetto dweller find a psychiatrist to testify that she runs a grave risk of emotional impair- ment if she is forced to give birth to her nth baby? 2~

2x Quoted in Callahan, p. 472. Herbert Packer, The Limits of the Criminal Sanction (Stanford i Stanford University Press, 1968), p. 344. Callahan believes that Packer's figure of a million illegal abortions is an exaggeration.

148 The Journal o f Value Inquiry

I f these claims are essentially correct, then the " therapeut ic" approach must be rejected. The original analysis tried to show how, in accordance with mora l principles, a case for abort ion in certain circumstances might be made. But whatever the moral point o f view might be, it is not one that discriminates against the poor, culminates in arbitrary usage o f the law or encourages disrespect for the law. Apparently, the current forms of therapeutic law con- stitute little advance on the conservative position.

Note, given the failure o f the therapeutic laws, what Callahan is practically forced to do. After 473 pages of careful analysis o f empirical and moral "da ta , " he says

At this point, having criticized almost every element of the position put forward by Garrett Hardin - its morality, its biology and logic - I think the way he puts his basic question, "Abortion-Or Compulsory Pregnancy," is valid. For from a legal point of view to deny an abortion to a woman who wants one is tantamount to compelling her to go through with her pregnancy. Life in any civilized society, to be sure, re- quires that people often do what they do not want to do; they are compelled by law and mores. Compulsion, as such, is no objection to a law. It is only objectionable when it can be shown that substantive and avoidable harm is done to the conscience or freedom of choice of individuals, on the one hand, or when it can be shown, on the other, that no substantive harm would be done to the common good by a removal of legal compulsions. 22

Consequently, even though Callahan would not endorse each particular act o f abort ion as moral, he believes that there ought to be a permissive law.

But what does this "justification" amount to except a restatement o f the fundamental principles o f Mill 's On Liberty? Compare Mill.

. . . The sole end for which mankind is warranted, individually or collectively, in interfering with the liberty of action of any of their number is self-protection... The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. 2a

But surely, Callahan's use o f Mill 's principle to justify a permissive law justifies too much. The original analysis o f the moral problem presented in this paper would endorse abort ion only in certain particular cases. The ana- lysis justified acts, not an entire practice.

The problems faced at this point are the problems of liberal, pluralist democracy. And a liberalism like Mill 's certainly has serious problems. For example, the more humans learn about causative patterns in the social order, the more difficult it is to delineate what activities " d o not concern others", rendering the commitment to freedom and au tonomy empty. 24 In addition,

22 Callahan, p. 473. 2a John Stuart Mill, Utilitarianism, Liberty and Representative Government (New York:

Dutton, 1950), p. 73. 24 For a critique of liberalism along these lines, cf. Robert Paul Wolff, The Poverty of

Liberalism (Boston: Beacon Press, 1968).

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the relation of law and morality in pluralist society must be faced. Few people would argue that it is the function of law to enforce morality. Even a conser- vative like Grisez rejects such a position. On the other hand, a complete, radical separation of the two concepts seems equally unwise. 2s Where do we draw the appropriate lines? To return to the original problems, who will decide when the mother has morally relevant claims? How does one respon- sibly balance the rights of the mother against the rights of the fetus?

The specific kind of difficulty that is being encountered here can be made a bit more precise by analyzing the recent Supreme Court decision on abor- tion. I believe the general argument presented to this point will reveal the strengths and weaknesses of the Supreme Court decision.

IV

There are five basic components in the majority decision presented by Blackmun. They are:

9. The adjudication of technical legal matters as to what parties have a right to bring suit in this matter, and so on;

I0. The status of the fetus as a "constitutionally defined person"; 11. The specification of the rights of women; 12. The specification of the interests of the state; and 13. The development of a practical procedure to adjudicate conflicts between (9) -

(12).

It would take a great deal of technical expertise to analyze (9). Hence, I shall simply assume that the question of abortion is a matter for responsible decision by the Supreme Court.

(10) is the focal point of Blackmun's decision. He claims that

If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life is then guaranteed specifically by the (fourteenth) Amendment.26

However, Blackmun immediately undercuts the direction implicit in the above comment with the following. First, he finds no justification in the con- stitution for extending "personhood" to the fetus. Second, he claims

We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer. 27

25 For a good summation of the debate between Lord Devlin, one of the few who argue that law ought enforce morality and H. L. A. Hart, who defends a more liberal position, cf. Basil Mitchell, Law, Morality and Religion in a Secular Society (Oxford: University Press, 1967).

26 Blackmun, p. 41. 27 Ibid. p. 44.

150 The Journal o f Value Inquiry

As Blackmun has sketched the decision procedure the second two moves are of paramount importance, for on his model a decision to treat the fetus as a person is a sufficient condition for the unqualified prohibition of abor- tion. However, by appealing to the lack of rational consensus on this issue, Blackmun brackets the question and abortion remains an option.

The specification of the rights of the woman (1) constitutes the next phase of Blackmun's decision. Although the constitution does not explicitly men- tion any right to privacy, there is cumulative and strong legal precedent in favor of personal privacy. To deprive a woman of the abortion option is to force her to endure physical, psychological and emotional stress that she should have the right to reject. Hence, the right of personal privacy includes the abortion decision. 28

This point is immediately modified however. At best, the right to privacy is a primafacie right. The Court has consistently failed to rule that the right to privacy with respect to one's body is absolute. 29 Such privacy is to be balanced against rational state interests (12). These interests include "safe- guarding health, maintaining medical standards and the protection of poten- tial life."

The abortion decision involves a complex Of values: the constitutionally guaranteed right to privacy of the woman, the State's interest in the health of the woman and the State's interest in the protection of fetal life. The final stage in Blackmun's decision is the adjudication of conflicts of those values (13).

Blackmun's procedure here is straightforwar d. The way he chooses to adjudicate between these values is to find some point at which each one of them becomes "compelling." The State's interest in protecting maternal health is "compelling" at the end of the first trimester. This is So because abortion after that stage does constitute a significant threat to the health of the mother. The State's interest in protecting health and maintaining appro- priate medical standards would warrant restrictions concerning the conditions under which an abortion can be performed.

The second state interest - the protection of fetal life - is compelling at the point of viability. The viability in question means "capable of meaningful life outside the womb" and this, I take it, may include artificial support of some kind. The (currently) accepted point of viability is the beginning of the third trimester. When this compelling point is reached, the state may pro- hibit abortion. In the absence of any state interest -which on Blackmun's model would include the first trimester - the decision to have an abortion is the woman's alone.

There are any number of approaches that might be employed to initiate criticism of Blackmun's decision. The basic difficulty, however, is that the weight of the justification of the "compelling points" of state interest is based

28 Ibid. p. 38. 29 Ibid. p. 39. 3o Ibid. p. 40.

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on the current state of medical technology. As this technology changes, the points at which the state's legitimate interests become compelling also, on Blackmun's model, may change. Theoretically then, the state interest in the health of the mother could drop out entirely. If; for example, some procedure were developed whereby the safety of the abortion were relatively independent of the time of the pregnancy, then the prohibitions justified during the second trimester would drop out.

On the other hand, medical technology may significantly alter current notions of viability. There is theoretically no limit to how close viability may be pushed toward conception. Blackmun's decision suggests no clear way with which to deal with such developments. Whether or not his criteria can be applied to possible new developments in a rational non-arbitrary fashion is an open question. At best, his decision reflects the conflict in moral sensitivities toward abortion. It does little toward resolving those conflicts in any substantial way.

And yet it seems to me that this is where the abortion decision comes to rest. The basic strength of positions like Callahan's and Blackmun's is their recognition that the decisions of a democratic state are legitimated by their acceptability to a rational consensus of the community. In the absence of such a consensus, the prohibition of the exercise of individual freedom is futile. Given current sensitivities toward abortion - with the obvious lack of rational consensus - for all practical purposes precludes any substantive moralinterest that the State might press on the issue.

The central weakness of policy decisions like Callahan's and Blackmun's emerges on the same point- i.e. the moral issues tend to get lostin the com- plexity of the policy decision. It is no wonder that any number of people might find the triadic elegance of Blackmun's decision bizarre. However, the pluralistic kind of society that we have precludes any policy approach that ignores the complexity of value problems. Hence, even though one might press any number of practical questions as to what specific features the ap- propriate law might have; a pluralistic society is, in general, saddled with a position like Callahan's or Blackmun's.

Disjunctive reasoning of the kind carried out in the preceding analysis is never satisfying. The use of such reasoning reflects that currently available options are being compared. The best course would dearly be to create new ones.

University of Notre Dame