The Journal of Value Inquiry 33: 555–556, 1999. RIGHTS, DUTIES, AND ABORTION © 1999 Kluwer Academic Publishers. Printed in the Netherlands.

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Rights, Duties, and Abortion PETER DRUM Department of Philosophy, Australian Catholic University, 412 Mount Alexander Road, Ascot Vale, Vic 3032, Australia

In a recent article on Judith Thomson’s defense of abortion, Duncan Richter concludes: “Thomson’s argument is good enough to suggest that pro-lifers would do well to focus less on a fetus’s alleged right to life and concentrate instead on questions of callousness and indifference. Indeed so would prochoice liberals, since problems do not disappear if they are ignored. As Thomson concedes, these questions are no less grave than those concerning the justice of abortion.”1 But is Thomson’s argument persuasive in relation to rights? Even if it is true that being unkind can be as bad as being unjust, is this really a promising way forward for pro-lifers? Assuming for the sake of argument that the fetus is a human being, where it is an uninvited guest, as in cases of rape or contraceptive failure, Thomson argued that since the fetus has no right to be in the womb it can be evicted. However, even if the fetus has no such right, it does not follow that the woman can do anything necessary to remove it. After all, while it is not a requirement of justice that an individual must care for an abandoned baby if there is no one else to do so, deliberately killing a baby would certainly be unjust in terms of the assault. Therefore, unless the uninvited guest is so serious a threat to the well-being of the host that homicide is a reasonable defense against it, Thomson’s argument does not go through. Consequently, if the fetus is a human being, pro-lifers retain justice on their side in all but extreme cases, where the burden of carrying the fetus to term is unreasonable enough to justify killing. Surely it would seriously weaken their position if pro-lifers dropped their emphasis on rights, as many of them want abortion to be illegal. Therefore, unless it is envisaged that prescriptions of kindness become law, the interests of the unborn will not then be adequately protected, for admonition and disapprobation are hardly powerful enough to prevent many abortions. Yet the introduction of such laws would probably not be a good thing, either theoretically or practically. Even though justice has to be enforced so that lives and property will not be threatened, over and above this it seems more appropriate in terms of freedom and merit that agents choose to be virtuous than be coerced into it. Moreover, the addition of a new type of statute would

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put additional strain on an already burdened legal system. Consequently, for pro-lifers at least, focussing on the rights of the fetus will remain critical. Even if the arguments of Thomson and Richter are not convincing, there does appear to be something right about their conclusions. It runs counter to commonsense to consider first trimester fetuses as fully human, with the same rights as everyone else. Since a human being is a rational animal, there are many ways in which early fetuses obviously do not meet this definition. A rational animal is an entity possessing certain inherent powers. The powers are organic, but during this time a human being is clearly still in a process of formation. Unless it is imagined that such powers exist in the fetus before it is complete, the early conceptus is a forming human being, not a human being forming. Indeed, this holds true even if it is alleged that there is already an immaterial mind in the forming conceptus, since a rational animal is a mindbody compound. Therefore, first trimester fetuses plausibly only have rights as potential human beings. Consequently, Thomson’s conclusion that abortion is not unjust in cases where the fetus is an uninvited guest is probably right regarding early abortions, but not for the reasons given in her paper. Richter is also probably correct in thinking that pro-lifers should concentrate on such things as callousness and indifference in relation to these abortions, but not for the reasons advanced in his paper. Notes 1.

“Is Abortion Vicious,” The Journal of Value Inquiry, Vol. 32, No. 3, (1998), p. 390.