Allen, Anita, and . 22 Atmospherics: Abortion Law and Philosophy

2004, In Francis J. Mootz (ed.), On Philosophy in American Law. Cambridge University Press 184

Abstract: In 1934, Karl N. Llewellyn published a lively essay trumpeting the dawn of legal realism, “On Philosophy in American Law.” The charm of his defective little piece is its style and audacity. A philosopher might be seduced into reading Llewellyn’s essay by its title; but one soon learns that by “philosophy” Llewellyn only meant “atmosphere”. His concerns were the “general approaches” taken by practitioners, who may not even be aware of having general approaches. Llewellyn paired an anemic concept of philosophy with a pumped-up conception of law. Llewellyn’s “law” included anything that reflects the “ways of the law guild at large” – judges, legislators, regulators, and enforcers. Llewellyn argued that the legal philosophies implicit in American legal practice had been natural law, positivism and realism, each adopted in response to felt needs of a time. We must reckon with many other implicit “philosophies” to understand the workings of the law guild, not the least of which has been racism. Others, maternalism and paternalism, my foci here, persist in American law, despite women’s progress toward equality. Both maternalism and paternalism were strikingly present in a recent decision of the U.S. Supreme Court, Gonzales v. Carhart, upholding the federal Partial-Birth Abortion Ban Act.

Comment: This article offers a good way to relate practical legal problems with philosophical issues, giving the students a very direct way to see the relevance of ethics. It can inspire discussions on paternalism and its relations with global justice. Note that the article does not define the following terms which are important to understand the material: Natural law, Positivism, Realism, Atmosphere/atmospherics, Paternalism, Maternalism. Due to its focus on legal issues, the text can be better suited as further reading, or as a core reading in classes focused on applied ethics and law (following Diversifying Syllabi).

Foot, Philippa, and . The Problem of Abortion and the Doctrine of the Double Effect

1967, Oxford Review 5:5-15, reprinted in Virtues and vices. Oxford: Blackwell.

Comment: The text introduces some crucial distinctions, discussing the difference between 'doing' and 'allowing to happen' and the related negative and positive duties. Foot argues that what matters in the Doctrine is not the directness of the actor's intention, but whether they intend to follow a negative or positive duty. This paper is most useful in teaching on the ethics of abortion and euthanasia, as well as the doctrine of double effect in general.

Hursthouse, Rosalind, and . Beginning lives

1987, Oxford: Basil Blackwell.

Back matter: In this text book Rosalind Hursthouse examines the complex questions surrounding the morality of abortion. Beginning by discussing the moral status of the foetus, she outlines and criticizes the main philosophical liberal positions on abortion, discussing alsl their bearing on the related issues of ifanticide, foetal research, surrogacy, murder and our treatment of animals. In place of the currently prevailing positions, the author offers a novel approach to these issues based on the recently revived theory of neo–Aristotelianism which emphasizes moral virtues and vices.

A central element of Beginning Lives is its emphasis on the special nature of abortion: its unique relation to the facts of women′s pregnancies and hence to our attitudes to childbearing, motherhood, maturity and sexual relations.

Comment: The first chapters provide an excellent overview of the main topics in the abortion debate. Chapter 3 is particularly useful in teaching, as it offers a response to personhood accounts - it can be used in conjunction with Tooley's 'Abortion and Infanticide' (1972). Chapter 5 presents an in-depth discussion of women's rights and is useful in teaching on ethical issues related to abortion, but can also provide excellent support for teaching about feminism or human rights in general.

Hursthouse, Rosalind, and . Virtue, Theory and Abortion

1991, Philosophy & public affairs 20(3): 223-246.

Abstract: The sort of ethical theory derived from Aristotle, variously described as virtue ethics, virtue-based ethics, or neo-Aristotelianism, is becoming better known, and is now quite widely recognized as at least a possible rival to deontological and utilitarian theories. With recognition has come criticism, of varying quality. In this article I shall discuss nine separate criticisms that I have frequently encountered, most of which seem to me to betray an inadequate grasp either of the structure of virtue theory or of what would be involved in thinking about a real moral issue in its terms. In the first half I aim particularly to secure an understanding that will reveal that many of these criticisms are simply misplaced, and to articulate what I take to be the major criticism of virtue theory. I reject this criticism, but do not claim that it is necessarily misplaced. In the second half I aim to deepen that understanding and highlight the issues raised by the criticisms by illustrating what the theory looks like when it is applied to a particular issue, in this case, abortion.

Comment: Most useful as further reading in two contexts: (1) the ethics of abortion and the use of virtue ethics in determining its moral status; (2) virtue ethics, its relations with deontology and utilitarianism, and objections against it, with a discussion of the problem of abortion supporting the value of the neo-Aristotelian theory.

Kornegay, R. Jo, and . Hursthouse’s Virtue Ethics and Abortion: Abortion Ethics without Metaphysics

2011, Ethical Theory and Moral Practice 14(1): 51-71.

Abstract: This essay explicates and evaluates the roles that fetal metaphysics and moral status play in Rosalind Hursthouse’s abortion ethics. It is motivated by Hursthouse’s puzzling claim in her widely anthologized paper Virtue Ethics and Abortion that fetal moral status and (by implication) its underlying metaphysics are in a way, fundamentally irrelevant to her position. The essay clarifies the roles that fetal ontology and moral status do in fact play in her abortion ethics. To this end, it presents and then develops her fetal metaphysics of the potential and actual human being, which she merely adumbrates in her more extensive treatment of abortion ethics in her book Beginning Lives. The essay then evaluates her fetal ontology in light of relevant research on fetal neural and psychological development. It concludes that her implied view that the late-stage fetus is an actual human being is defensible. The essay then turns to the analysis of late-stage abortions in her paper and argues that it is importantly incomplete.

Comment: This paper provides a detailed analysis and critique of Rosalind Hursthouse's argument in 'Virtue Ethics and Abortion'. As Hursthouse's paper is frequently taught, this article would provide a good counterpoint to it. This dialogue could form part of an examination of the practical application of virtue ethics, or as part of an examination of the applied ethics of abortion from alternative ethical perspectives. This paper is suitable for undergraduate or graduate teaching.

Oshana, Mariana, and . Autonomy and the Partial-Birth Abortion Act

2011, Journal of Social Philosophy, 42 (1): 46-60.

Summary: In this paper, Oshana argues that the U.S. Supreme Court’s decision to affirm the Partial-Birth Abortion Act was mistaken. She claims that the Partial-Birth Abortion Act cannot withstand the test of strict scrutiny, that the Act fails to respect the privacy rights of individuals, and that there are compelling reasons (based in autonomy) to allow partial-birth abortion up until the point of fetal viability. As such, she claims, the Act violates the integrity of law.

Comment: This text would be excellent to use in a course focused on abortion, any course that covers the suite of U.S. Supreme Court cases involving the right to privacy, or a course that wishes to discuss and apply the doctrine of strict scrutiny. While it requires a significant amount of background knowledge (concerning the legislative history on abortion in the United States), it provides an excellent example of applying both the principle of autonomy and the principle of strict scrutiny.

Thomson, Judith Jarvis, and . A Defense of Abortion

1971, Philosophy and Public Affairs 1 (1):47-66.

Content: Thomson aims to see if abortion can be defended even if the anti-abortion theorist is granted their key premise, i.e. that the foetus has the status of a person. Thomson argues that this is, in fact, irrelevant since we do not owe it to others to let them use our body in order to survive.

Comment: This text offers one of the central arguments in favour of moral permissibility of abortion and features the 'famous violinist' thought experiment. It is a central reading for any module in applied ethics focusing on abortion.

Warren, Mary Anne, and . On the Moral and Legal Status of Abortion

1973, The Monist, 57 (4): 43-61.

Summary: This paper is a response to Thomson’s influential defense of abortion. Warren argues that Thomson is mistaken that if a fetus has full moral rights, then abortion is still morally permissible. Warren, instead, argues that while fetuses participate in genetic humanity, they do not participate in the category of personhood (the category which defines the moral community). For this reason, abortion is always morally permissible and thus ought to be legally permissible.

Comment: This reading is a good response to Thomson's influential violinist case. The text is a bit complex, and would be better suited for a course that considered issues of abortion and infanticide in an in depth way.