even perhaps the severely mentally ill. Therefore, we seem again to have a standoff. The anti‐abortionist charges, not unreasonably, that pro‐choice principles concerning killing are too narrow to be acceptable; the pro‐choicer charges, not unreasonably, that anti‐abortionist principles concerning killing are too broad to be acceptable.
Attempts by both sides to patch up the difficulties in their positions run into further difficulties. The anti‐abortionist will try to remove the problem in her position by reformulating her principle concerning killing in terms of human beings. Now we end up with: “It is always prima facie seriously wrong to end the life of a human being.” This principle has the advantage of avoiding the problem of the human cancer‐cell culture counterexample. But this advantage is purchased at a high price. For although it is clear that a fetus is both human and alive, it is not at all clear that a fetus is a human being. There is at least something to be said for the view that something becomes a human being only after a process of development, and that therefore first trimester fetuses and perhaps all fetuses are not yet human beings. Hence, the anti‐abortionist, by this move, has merely exchanged one problem for another.2
The pro‐choicer fares no better. She may attempt to find reasons why killing infants, young children, and the severely retarded is wrong which are independent of her major principle that is supposed to explain the wrongness of taking human life, but which will not also make abortion immoral. This is no easy task. Appeals to social utility will seem satisfactory only to those who resolve not to think of the enormous difficulties with a utilitarian account of the wrongness of killing and the significant social costs of preserving the lives of the unproductive.3 A pro‐choice strategy that extends the definition of “person” to infants or even to young children seems just as arbitrary as an anti‐abortion strategy that extends the definition of “human being” to fetuses. Again, we find symmetries in the two positions and we arrive at a standoff.
There are even further problems that reflect symmetries in the two positions. In addition to counterexample problems, or the arbitrary application problems that can be exchanged for them, the standard anti‐abortionist principle “It is prima facie seriously wrong to kill a human being,” or one of its variants, can be objected to on the grounds of ambiguity. If “human being” is taken to be a biological category, then the anti‐abortionist is left with the problem of explaining why a merely biological category should make a moral difference. Why, it is asked, is it any more reasonable to base a moral conclusion on the number of chromosomes in one’s cells than on the color of one’s skin?4 If “human being,” on the other hand, is taken to be a moral category, then the claim that a fetus is a human being cannot be taken to be a premise in the anti‐abortion argument, for it is precisely what needs to be established. Hence, either the anti‐abortionist’s main category is a morally irrelevant, merely biological category, or it is of no use to the anti‐abortionist in establishing (noncircularly, of course) that abortion is wrong.
Although this problem with the anti‐abortionist position is often noticed, it is less often noticed that the pro‐choice position suffers from an analogous problem. The principle “Only persons have the right to life” also suffers from an ambiguity. The term “person” is typically defined in terms of psychological characteristics, although there will certainly be disagreement concerning which characteristics are most important. Supposing that this matter can be settled, the pro‐choicer is left with the problem of explaining why psychological characteristics should make a moral difference. If the pro‐choicer should attempt to deal with this problem by claiming that an explanation is not necessary, that in fact we do treat such a cluster of psychological properties as having moral significance, the sharp‐witted anti‐abortionist should have a ready response. We do treat being both living and human as having moral significance. If it is legitimate for the pro‐choicer to demand that the anti‐abortionist provide an explanation of the connection between the biological character of being a human being and the wrongness of being killed (even though people accept this connection), then it is legitimate for the anti‐abortionist to demand that the pro‐choicer provide an explanation of the connection between psychological criteria for being a person and the wrongness of being killed (even though that connection is accepted).5
Feinberg has attempted to meet this objection (he calls psychological personhood “commonsense personhood”):
The characteristics that confer commonsense personhood are not arbitrary bases for rights and duties, such as race, sex or species membership; rather they are traits that make sense out of rights and duties and without which those moral attributes would have no point or function. It is because people are conscious; have a sense of their personal identities; have plans, goals, and projects; experience emotions; are liable to pains, anxieties, and frustrations; can reason and bargain, and so on – it is because of these attributes that people have values and interests, desires and expectations of their own, including a stake in their own futures, and a personal well‐being of a sort we cannot ascribe to unconscious or nonrational beings. Because of their developed capacities they can assume duties and responsibilities and can have and make claims on one another. Only because of their sense of self, their life plans, their value hierarchies, and their stakes in their own futures can they be ascribed fundamental rights. There is nothing arbitrary about these linkages.
(“Abortion,” p. 270)
The plausible aspects of this attempt should not be taken to obscure its implausible features. There is a great deal to be said for the view that being a psychological person under some description is a necessary condition for having duties. One cannot have a duty unless one is capable of behaving morally, and a being’s capability of behaving morally will require having a certain psychology. It is far from obvious, however, that having rights entails consciousness or rationality, as Feinberg suggests. We speak of the rights of the severely retarded or the severely mentally ill, yet some of these persons are not rational. We speak of the rights of the temporarily unconscious. The New Jersey Supreme Court based their decision in the Quinlan case on Karen Ann Quinlan’s right to privacy, and she was known to be permanently unconscious at that time. Hence, Feinberg’s claim that having rights entails being conscious is, on its face, obviously false.
Of course, it might not make sense to attribute rights to a being that would never in its natural history have certain psychological traits. This modest connection between psychological personhood and moral personhood will create a place for Karen Ann Quinlan and the temporarily unconscious. But then it makes a place for fetuses also. Hence, it does not serve Feinberg’s pro‐choice purposes. Accordingly, it seems that the pro‐choicer will have as much difficulty bridging the gap between psychological personhood and personhood in the moral sense as the anti‐abortionist has bridging the gap between being a biological human being and being a human being in the moral sense.
Furthermore, the pro‐choicer cannot any more escape her problem by making person a purely moral category than the anti‐abortionist could escape by the analogous move. For if person is a moral category, then the pro‐choicer is left without the resources for establishing (noncircularly, of course) the claim that a fetus is not a person, which is an essential premise in her argument. Again, we have both a symmetry and a standoff between pro‐choice and anti‐abortion views.
Passions in the abortion debate run high. There are both plausibilities and difficulties with the standard positions. Accordingly, it is hardly surprising that partisans of either side embrace with fervor the moral generalizations that support the conclusions they preanalytically favor, and reject with disdain the moral generalizations of their opponents as being subject to inescapable difficulties. It is easy to believe that the counterexamples to one’s own moral principles are merely temporary difficulties that will dissolve in the wake of further philosophical
