On Fetal Rights: Killing vs. Letting Die in Abortion Ethics, Jenna Lange, Pomona ’23

On Fetal Rights:Killing vs. Letting Die in Abortion Ethics

Jenna Lange, Pomona’23

Managing Editor–Winner of the Issue II Writing Prize

Introduction

When someone becomes pregnant but

does not wish to carry the pregnancy to term, it seems there is a conflict of rights. On the one hand, there are the rights of the pregnant person1 —such as the right to decide what happens to their own body, the right to not be killed by the fetus2 (as in when the pregnancy is lifethreatening), and so on. On the other hand, there are the rights of the fetus, such as the right to not be killed. In general, if right P takes precedence over right Q, then we must act in accord with right P—or otherwise we violate a right, which is always morally impermissible. So, with respect to abortion, the three questions to consider are: which rights does the fetus have; do these fetal rights conflict with the rights of the pregnant person; and if they do conflict, which right takes precedence (i.e., overrides the other)?

The two rights at issue that the fetus might have are the right to not be killed and the right to not be let die (i.e. to life-sustaining aid). However, to understand the difference between these two rights, one must first understand the difference between killing and letting die—and resolve the question of whether abortion counts as killing the fetus or as letting the fetus die. To this end, in Section IA I describe Philippa Foot’s and Jeff McMahan’s contrasting accounts of the distinction between killing and letting die, and end up siding with not only McMahan’s way of drawing the distinction but also his account of why some withdrawals of aid are killing while others are letting die. In Section IB, I apply McMahan’s account to abortion, showing that most abortions involve letting the fetus die, not killing— roughly because they involve the withdrawal of life-saving aid whose continuance comes at a cost to the pregnant person.

In Section II, I follow in the footsteps of Judith Jarvis Thomson and Phillipa Foot by assuming that the fetus is a person,3 and thus has the right to not be killed. But what about the right to life-sustaining aid? I discuss Thomson’s argument for the claim that most fetuses lack such a right; though fetuses do have the right not to be killed, they do not have the right not to be let die. Focusing only on what McMahan calls “merely extractive abortions,” which are the most common type, I show that in these types of abortions, the pregnant person’s right to decide what happens to their body and the fetus’ right not to be killed are not in conflict. And so,for extractive abortions, we will not have to adjudicate which right—the pregnant person’s or the fetus’—takes precedence.

Section IA. Killing vs. Letting Die

In Philippa Foot’s view, the difference between killing and letting die is not merely the difference between doing and allowing.4 Her defense begins with the premise that, if there is a case in which one kills by allowing a threatening sequence to continue, then the distinction between killing and letting die does not map onto the distinction between doing and allowing. Foot then presents the following example:

Involuntary Donor: A’s body is plugged into B’s, and A is dependent on this arrangement for lifesaving aid. B unplugs A’s body from hers, and A dies.5,6

Since Foot thinks this is a case of killing by allowing, she concludes that not all killings are

doings; some are allowings. So, Foot concludes that we cannot clarify the distinction between killing and letting die by aligning the two with doing and allowing respectively.

To build an account of killing vs. letting die, Foot introduces the idea of a “fatal sequence.”7 In most cases8 of killing and of letting die, Foot thinks, there is a single sequence of events that resulted in someone’s death. For instance, in a case where someone died of poisoning, the fatal sequence was initiated by the agent who put the poison into their cup.9 Foot defines killing as “originating or sustaining” the fatal sequence.10 If A is the agent who initiated the fatal sequence that resulted in B’s death, Foot claims, then A killed B.11 If A did not initiate the fatal sequence that resulted in B’s death and A could have intervened to stop the sequence from continuing but did not do so, then in Foot’s view A let B die.

I find Foot’s account of killing to be overly narrow. Diverting fatal sequences strikes me as a type of killing, even if one did not initiate them. Consider the following case,12 originally posed by Foot herself:

Runaway Trolley: An out-of-control trolley is on a track headed for five people, all of whom will certainly die if the trolley hits them. A is a bystander with the option to redirect the trolley onto a track containing only person B. A redirects the trolley. The trolley hits B and B dies.13

Foot claims that this is a special kind of case involving “the diverting of a fatal sequence and not the starting of a new one.”14 Since in this case A did not initiate the fatal sequence that resulted in B’s death, according to Foot A did not kill B. I find this very odd. Since B was in absolutely no danger except because of A’s action, it seems suspect to claim that A did not kill B. The issue here is further demonstrated by another example, which I draw from Jeff McMahan: Suppose that I intentionally unplug the ventilator on which an individual with lung cancer depends for life support, and this individual dies. In Foot’s view, I would not be killing them – since the fatal sequence began with their lung cancer, which I had nothing to do with. However, intuitively it is clear, I think, that I did kill this person. So, a further exploration of this metaphysical difference is needed, particularly regarding cases involving the withdrawing of aid (as in the case of unplugging someone’s ventilator).

McMahan undertakes exactly this project. Though he shares Foot’s view that the distinction between killing and letting die does not align with the distinction between action and omission, he thinks that Foot mischaracterizes “Involuntary Donor” as a killing when in fact it is one of refusing to save a life.15 In McMahan’s view, P’s refusal to save Q’s life is not killing unless P herself initiated the fatal sequence. For instance, if P pushed Q into deep water knowing that Q could not swim, and then refused to save Q’s life by not pulling Q out of the water, P nonetheless killed Q by pushing Q into the water in the first place. McMahan points out that “Involuntary Donor” is not one of these special cases – since in “Involuntary Donor” B allows A to die from a preexisting threat that B herself did not cause.16 So, McMahan concludes that “Involuntary Donor” is not a case of killing.

Though McMahan objects to Foot’s characterization of this example, he agrees with her conclusion that the distinction between killing and letting dieis not the same as the distinction between act and omission. McMahan provides his own example to defend this claim, using the same argument structure as Foot. Recall that this argument hinges on identifying a case in which one kills by allowing a fatal sequence to continue. McMahan identifies two such cases:

Respirator: Due to an illness, B is dependent on a machine to sustain her life. A, with full knowledge of B’s situation, unplugs the machine. B dies.17

Burning Building: B jumps off of a burning building towards a net that C set up to save B’s life. A, with full knowledge of B’s situation, removes the net. B hits the ground and dies.18

Both of these are cases of allowing harm to continue that are also clear cases of killing. So, McMahan concludes, Foot was correct that the distinction between killing and letting die does not map onto the distinction between doing and allowing.

McMahan points out that all three of these cases involve the withdrawal of aid. But, as McMahan points out, “Involuntary Donor,” is letting die while “Respirator” and “Burning Building” are killings. Why are some withdrawals killing and others letting die? This motivates his development of two principles for distinguishing these, the final iterations19 of which are:

Principle 1: If A withdraws a barrier that protects B from death and that A provided but which requires further contributions from A in order to protect B from death or if A withdraws a barrier that would protect B from death and that A provided but that has not yet come into effect, then A lets B die.20

Principle 2: If A withdraws a barrier that protects B from death that A did not provide21 or if A withdraws a complete and self-sustaining barrier that protects B from death that A did provide, then A kills B.22

In the paragraphs that follow I will both justify these principles with examples and explain what they mean (including their technical terms), just as McMahan does.23

Principle 1 aligns with our intuition of the three cases, “Involuntary Donor” and these two additional cases:

Aborted Rescue: A is trying to save B who is drowning, but realizes that doing so may result in A herself drowning. A abandons the rescue attempt by pushing B off of her. B drowns.24

Dutch Boy: A notices that a dike is beginning to crack, and plugs it with his finger to stop the sea from flooding his town. After several bored and hungry hours in which A tried and failed to alert others of the situation, A removes his finger from the crack, which results in a flood that causes several people to die.25 Our intuition is that all three of these cases are of letting die, not of killing. So, if Principle 1 classifies all of these cases as letting die, then Principle 1 aligns with our intuitions about these cases. In all these cases A withdraws a barrier that protects B from death that A provided, but which requires further contributions from A in order to protect B from death. In “Involuntary Donor” these further contributions are the continued use of A’s body for life support; in “Aborted Rescue” these further contributions are A’s continued efforts to save B from drowning; and in “Dutch Boy” these further contributions are A keeping his finger on the crack in the dike. So, the antecedent of Principle1 is satisfied in both “Aborted Rescue” and “Dutch Boy,” and thus Principle 1 categorizes both as cases of letting die. Therefore, Principle 1 aligns with our intuitions about “Involuntary Donor,” “Aborted Rescue,” and “Dutch Boy.”

Principle 1 also aligns with our intuitions about the following cases involving as-yet-inoperative aid:

Abdul 3: B’s life could be saved by a donation of money at t3. At t1, A writes a check and mails it to save B’s life. At t2, A intercepts the check and tears it up. B dies.26,27

Abdul 4: B’s life could be saved by a donation of money at t3. At t1, A writes a check and gives it to C, instructing C to mail it to save B’s life. At t2 A instructs C not to mail the check. B dies.28

Intuitively, both of these are cases of letting die. Unlike the previous cases of letting die, however, it is not clear that the barrier requires further contributions from A in order to protect B from death – after all, if A were to not do anything, B’s life would be saved, but it is nonetheless the case that A’s help is required in saving B. Instead of clear-cut “further contributions,” both of these cases of letting die involve as-yet-inoperative barriers –thus satisfying the right disjunct of the antecedent of Principle 1. In “Abdul 3,” when A intercepts the check, and in Abdul 4 when A instructs C not to mail the

check, A withdraws what would have become a barrier protecting B from death but that has not yet come into effect.29 So, the antecedent of Principle 1 is satisfied in both cases, and thus Principle 1 classifies both of these as cases of letting die – which aligns with our intuitions.

Principle 2 aligns with our intuitions that “Respirator” and “Burning Building” are cases of killing, since in both cases A removes a barrier protecting B from death that A herself did not provide.30 Principle 2 also aligns with our intuition that the following is a case of killing:

Pipe Sealer: A notices a crack in a pipe that threatens to spill poison into B’s water supply. A repairs the crack at t1. At t2 A returns and removes that repair. B dies of poisoning.31

In this case, unlike in “Respirator” and “Burning Building,” A did provide the barrier that protected B from death. However, McMahan characterizes this particular barrier as “complete and self-sustaining,” since it requires no further contributions from A in order to protect B from death.32 So, Principle 2 classifies “Pipe Sealer” as a case of killing. Therefore, Principle 2 aligns with our intuitions about this case, along with “Respirator” and “Burning Building.”

Having determined which cases of withdrawing aid are killing and which are letting die, McMahan returns to the topic of killing vs. letting die more broadly. He distinguishes them in the following way:

McMahan on Killing: “If the situation is such that [B] will live in the absence of any further intervention in his life by [A], then, if [B] nevertheless dies, [A] has killed him.”33

McMahan on Letting Die: If B would not have lived without some present or future intervention by A and if A neither caused B’s need for aid nor caused a further, independent threat to B’s life, then, if B dies, A let B die.34

To be sure, the first of these principles is clearly missing a clause about B dying because of A’s action. Without this, the principle is absurd, since it implies that anyone who has ever intervened in the life of a deceased person must have killed them. However, with the addition of this clause, these two claims are consistent with McMahan’s earlier principles about withdrawals of aid. Recall that Principle 2 says that A’s withdrawal of a barrier that protects B from death that A did not provide is one sufficient condition for A’s killing B, and that A’s withdrawal of a complete and self-sustaining barrier that protects B from death that A did provide is another such sufficient condition. Both of these are situations where B will live in the absence of any further intervention in his life by A, and thus “McMahan on Killing” is compatible with Principle 2. Recall also that Principle1 says that A’s withdrawal of a barrier that protects B from death and that A provided but which requires further contributions from A in order to protect B from death is one sufficient condition for A’s letting B die, and that A’s withdrawal of a barrier that would protect B from death and that A provided but that has not yet come into effect is another such sufficient condition. Both of these are cases in which B would not have lived without some present or future intervention by A, and in which A neither caused B’s need for aid nor caused a further, independent threat to B’s life. So, Principle 1 is compatible with “McMahan on Letting Die.” Though these two principles are specific to cases that involve the withdrawal of aid, they are compatible with McMahan’s characterization of the broader distinction between killing and letting die.

Section IB. Application to Abortion

In order to apply McMahan’s view of killing vs. letting die to abortion, we must first distinguish between two different types of abortions. The first type is what McMahan calls “merely extractive” abortion, which involves the removal of the fetus from the womb, but its body is not damaged. The second type of abortion involves causing of the fetus’ death by craniotomy, lethal injection, et cetera.

In McMahan’s view, merely extractive abortion is letting die. Merely extractive abortions, McMahan thinks, are best characterized as the withdrawal of life-supporting aid.35 Moreover, since this life-supporting aid is provided by the pregnant person’s body, it requires continuous contributions on the part of the pregnant person.36 Recall that, according to McMahan’s Principle 1, if A withdraws a barrier that protects B from death and that A provided but which requires further contributions from A in order to protect B from death, then A lets B die.37 So, merely extractive abortion ought to be characterized as letting die.

However, McMahan thinks that when the fetus’ death is caused by craniotomy, lethal injection, a coat hanger, et cetera, the abortion counts as killing, not the mere withdrawal of aid. According to McMahan’s general principle about killing, if the situation is such that B will live in the absence of any further intervention in his life by A, then, if B dies because of A’s action, A has killed him. Without the surgical intervention damaging he/she/its body, the fetus will live. If the pregnant person authorizesthis kind of abortion, the fetus dies because of their action. So, in this case the pregnant person kills the fetus.

Section II. On the Rights of the Fetus

I follow in the footsteps of Judith Jarvis Thomson and Philippa Foot by assuming for the sake of argument that the fetus has a right to not be killed. For both Thomson and Foot, this follows from their assumption that the fetus is a moral person –since if A is a moral person, then A has the right not to be killed. Thompson considers the following argument for the claim that the fetus is a moral person from the moment of conception:

A. The development of a human being from conception until birth is continuous.38 B. It is quite arbitrary to choose a point in development past which the fetus is a [moral] person, and prior to which it is not.39 C. So, the fetus is a [moral] person from the moment of conception.40

Thomson does not think that C follows from A and B, pointing out that this argument commits the “slippery slope” fallacy.41 She demonstrates the fallacy by giving the counter-example of an acorn that becomes an oak tree: Though at some point in its continuous development an acorn surely becomes an oak tree, and no non-arbitrary point can be found at which the acorn becomes an oak tree, it does not follow from this that all acorns are oak trees.42 However, Thomson concedes that there is not a good way to pick a point in fetal development at which the fetus becomes a person. So, for the sake of argument Thomson accepts the claim about fetal personhood in C.43

When we combine our assumption of fetal personhood – and thus of the fetus’ right not to be killed – with what we established in Section IB, we may conclude that crushing a fetus’ skull violates this right and thus is impermissible (and likewise for abortion by lethal injection).

What about extractive abortions? Thomson convincingly argues that moral persons do not have the right not to be let die – i.e., the right to life-sustaining aid.44 Thomson points out a counterexample demonstrating that we do not in fact have this right. Suppose that A is on her deathbed, and the only thing that could save A’s life is some gesture from B who is a stranger to A – say, B’s flying across the country to be with A. While it might be charitable of B to perform this gesture, B certainly is not morally required to do so, even though this is what A requires in order to stay alive. If A had such a right against B, then B’s not doing so would violate this right –and thus B one would be morally required to do so. So, if it is not required of B, then A has no such right. Thomson concludes that A does not have the right to what she requires in order to stay alive. In this way, Thomson demonstrates that moral persons do not in fact have the right to life-sustaining aid. Therefore, since moral persons do

not have this right, neither do fetuses (by virtue of being moral persons).

When we combine this understanding with what we established in Section IB, we may conclude that merely extractive abortions are morally permissible. Merely extractive abortion is a kind of letting die, and the fetus has no right against being let die. So, performing a merely extractive abortion is morally permissible.

Endnotes 1 Many of those who write on this topic use the word “mother” to describe the person carrying the fetus. Julie Tannenbaum and others opt to use the term “pregnant woman” instead, because to call this person a “mother” already entails that they have certain duties to the fetus. In this paper

I will opt to use the term “pregnant person,” because gender identity does not map to biology and thus not every person who becomes pregnant is also a woman. 2 To refer to the developing embryo I will exclusively use the term “the fetus” in this paper. Making a choice about pronouns entails an answer to the question of fetal personhood. 3 Judith Jarvis Thomson, “A Defense of Abortion,”

Philosophy and Public Affairs 1 (1971): 47. Thomson offers a justification of this assumption by pointing out that embryonic development is a continuous process from conception to birth, and thus it is quite arbitrary to pick a point at which the fetus becomes a person. Though Thomson herself critiques this as a “slippery slope argument,” she accepts it as sufficient justification for the adoption of this assumption for the sake of argument. See Section II for more. 4 Philippa Foot, “Killing and Letting Die," in Abortion: Moral and Legal Perspectives, eds. Jay L.

Garfield and Patricia Hennessey (Amherst, MA:

University of Massachusetts Press, 1984), 178. 5 Foot, 184. 6 Foot notes that this example comes from Thomson’s earlier work, which I discuss in later sections. 7 Philippa Foot, “The Problem of Abortion and the

Doctrine of the Double Effect,” in Virtues and

Vices and Other Essays in Moral Philosophy (Ithica, NY: Cornell University Press, 1978), 178-79. 8 The “in most cases” clause is important here,

Foot notes, because there exist examples in which it is impossible to identify the fatal sequence. For instance, in the case where A requires a water barrel to survive, B drills a hole in the barrel, and

C fills the barrel with brine, it is not possible to pick out a single fatal sequence that led to A’s dying of thirst – since each of B and C’s actions was sufficient for A’s death (Foot 179). However, Foot maintains that these kinds of cases are unusual, and thus proceeds with her “in most cases'' claim. 9 Foot, “Killing and Letting Die,” 179. 10 Foot, 179. 11 Foot would say here that A is the agent of B’s death. 12 This case, along with its various iterations, is famously known as “the trolley problem.” 13 Foot, “Killing and Letting Die,” 183. 14 Foot, 183. 15 Jeff McMahan, “Killing, Letting Die, and Withdrawing Aid,” Ethics 103 (1993): 252. 16 McMahan, “Killing, Letting Die, and Withdrawing Aid,” 253. 17 McMahan, 254. 18 McMahan, 254. 19 McMahan presents these principles first in what he calls the “crude view” and then in several further refinements. In this review I have chosen to present only McMahan’s final principles, setting aside those versions that he himself discards along the way. 20 McMahan, “Killing, Letting Die, and Withdrawing Aid,” 258-61. 21 Julie Tannenbaum has pointed out that it is not merely A’s provision of the barrier that is important; it is also necessary that A have full rights to provide the barrier in question. For instance, if

B is freezing to death and C gives B a winter coat that belongs to A, and A steals it back to prevent herself from dying, A lets B die rather than kills

B. However, the wording of McMahan’s principles could be adjusted to account for this. 22 McMahan, “Killing, Letting Die, and Withdrawing Aid,” 256-61. 23 In this review I do not include all of McMahan’s cases (as they are quite numerous), but select those that I find to be the strongest. 24 McMahan, “Killing, Letting Die, and Withdrawing Aid,” 251. 25 McMahan, 257. 26 McMahan notes that he draws both “Abdul 3” and “Abdul 4” from Shelly Kagan, The Limits of

Morality (Oxford, UK: Oxford University Press, 1989). 27 McMahan, “Killing, Letting Die, and Withdrawing Aid,” 259.

28 McMahan, 259. 29 It is important to note here that it makes no difference whether A herself withdraws the barrier (as in Abdul 3), or instructs a third party (C) to do it for her (as in Abdul 4). In both cases, the barrier is withdrawn by A’s agency. 30 See endnote xxi. 31 McMahan, “Killing, Letting Die, and Withdrawing Aid,” 256. 32 McMahan, 256. 33 McMahan, 277. 34 McMahan, 277. 35 McMahan, 268. 36 McMahan, 268. 37 McMahan, 258-61. 38 Thomson, “A Defense of Abortion,” 47. 39 Thomson, 47. 40 Thomson, 48. 41 Thomson, 48. 42 Thomson, 48. 43 Foot, “The Problem of Abortion,” 19. Foot also discusses this difficulty, in pointing out what she calls the “deepest source” of the abortion problem – the issue of fetal personhood. 44 Thomson, “A Defense of Abortion,” 55-56.