the conceptual capacity to desire to continue to live, they lack the right to life. Accordingly, Tooley concludes that abortion cannot be seriously prima facie wrong (“Abortion and Infanticide,” pp. 46–7 [see chapter 2 in this volume]).
What could be the evidence for Tooley’s basic claim? Tooley once argued that individuals have a prima facie right to what they desire and that the lack of the capacity to desire something undercuts the basis of one’s right to it (pp. 44–5). This argument plainly will not succeed in the context of the analysis of this essay, however, since the point here is to establish the fetus’s right to life on other grounds. Tooley’s argument assumes that the right to life cannot be established in general on some basis other than the desire for life. This position was considered and rejected in the preceding section of this paper.
One might attempt to defend Tooley’s basic claim on the grounds that, because a fetus cannot apprehend continued life as a benefit, its continued life cannot be a benefit or cannot be something it has a right to or cannot be something that is in its interest. This might be defended in terms of the general proposition that, if an individual is literally incapable of caring about or taking an interest in some X, then one does not have a right to X or X is not a benefit or X is not something that is in one’s interest.11
Each member of this family of claims seems to be open to objections. As John C. Stevens12 has pointed out, one may have a right to be treated with a certain medical procedure (because of a health insurance policy one has purchased), even though one cannot conceive of the nature of the procedure. And, as Tooley himself has pointed out, persons who have been indoctrinated, or drugged, or rendered temporarily unconscious may be literally incapable of caring about or taking an interest in something that is in their interest or is something to which they have a right, or is something that benefits them. Hence, the Tooley claim that would restrict the scope of the value of a future‐like‐ours argument is undermined by counterexamples.13
Finally, Paul Bassen14 has argued that, even though the prospects of an embryo might seem to be a basis for the wrongness of abortion, an embryo cannot be a victim and therefore cannot be wronged. An embryo cannot be a victim, he says, because it lacks sentience. His central argument for this seems to be that, even though plants and the permanently unconscious are alive, they clearly cannot be victims. What is the explanation of this? Bassen claims that the explanation is that their lives consist of mere metabolism and mere metabolism is not enough to ground victimizability. Mentation is required.
The problem with this attempt to establish the absence of victimizability is that both plants and the permanently unconscious clearly lack what Bassen calls “prospects” or what I have called “a future life like ours.” Hence, it is surely open to one to argue that the real reason we believe plants and the permanently unconscious cannot be victims is that killing them cannot deprive them of a future life like ours; the real reason is not their absence of present mentation.
Bassen recognizes that his view is subject to this difficulty, and he recognizes that the case of children seems to support this difficulty, for “much of what we do for children is based on prospects.” He argues, however, that, in the case of children and in other such cases, “potentiality comes into play only where victimizability has been secured on other grounds” (p. 333).
Bassen’s defense of his view is patently question‐begging, since what is adequate to secure victimizability is exactly what is at issue. His examples do not support his own view against the thesis of this essay. Of course, embryos can be victims: when their lives are deliberately terminated, they are deprived of their futures of value, their prospects. This makes them victims, for it directly wrongs them.
The seeming plausibility of Bassen’s view stems from the fact that paradigmatic cases of imagining someone as a victim involve empathy, and empathy requires mentation of the victim. The victims of flood, famine, rape, or child abuse are all persons with whom we can empathize. That empathy seems to be part of seeing them as victims.15
In spite of the strength of these examples, the attractive intuition that a situation in which there is victimization requires the possibility of empathy is subject to counterexamples. Consider a case that Bassen himself offers: “Posthumous obliteration of an author’s work constitutes a misfortune for him only if he had wished his work to endure” (p. 318). The conditions Bassen wishes to impose upon the possibility of being victimized here seem far too strong. Perhaps this author, due to his unrealistic standards of excellence and his low self‐esteem, regarded his work as unworthy of survival, even though it possessed genuine literary merit. Destruction of such work would surely victimize its author. In such a case, empathy with the victim concerning the loss is clearly impossible.
Of course, Bassen does not make the possibility of empathy a necessary condition of victimizability; he requires only mentation. Hence, on Bassen’s actual view, this author, as I have described him, can be a victim. The problem is that the basic intuition that renders Bassen’s view plausible is missing in the author’s case. In order to attempt to avoid counterexamples, Bassen has made his thesis too weak to be supported by the intuitions that suggested it.
Even so, the mentation requirement on victimizability is still subject to counterexamples. Suppose a severe accident renders me totally unconscious for a month, after which I recover. Surely killing me while I am unconscious victimizes me, even though I am incapable of mentation during that time. It follows that Bassen’s thesis fails. Apparently, attempts to restrict the value of a future‐like‐ours argument so that fetuses do not fall within its scope do not succeed.
V
In this essay, it has been argued that the correct ethic of the wrongness of killing can be extended to fetal life and used to show that there is a strong presumption that any abortion is morally impermissible. If the ethic of killing adopted here entails, however, that contraception is also seriously immoral, then there would appear to be a difficulty with the analysis of this essay.
But this analysis does not entail that contraception is wrong. Of course, contraception prevents the actualization of a possible future of value. Hence, it follows from the claim that if futures of value should be maximized that contraception is prima facie immoral. This obligation to maximize does not exist, however; furthermore, nothing in the ethics of killing in this paper entails that it does. The ethics of killing in this essay would entail that contraception is wrong only if something were denied a human future of value by contraception. Nothing at all is denied such a future by contraception, however.
Candidates for a subject of harm by contraception fall into four categories: (1) some sperm or other, (2) some ovum or other, (3) a sperm and an ovum separately, and (4) a sperm and an ovum together. Assigning the harm to some sperm is utterly arbitrary, for no reason can be given for making a sperm the subject of harm rather than an ovum. Assigning the harm to some ovum is utterly arbitrary, for no reason can be given for making an ovum the subject of harm rather than a sperm. One might attempt to avoid these problems by insisting that contraception deprives both the sperm and the ovum separately of a valuable future like ours. On this alternative, too many futures are lost. Contraception was supposed to be wrong, because it deprived us of one future of value, not two. One might attempt to avoid this problem by holding that contraception deprives the combination of sperm and ovum of a valuable future like ours. But here the definite article misleads. At the time of contraception, there are hundreds of millions
