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Abortion and The Concept Of A

Person
a
JANE ENGLISH
a
University of North Carolina , Chapel Hill
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Canadian Journal of Philosophy, 5:2, 233-243

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 CANADIAN JOURNAL OF PHILOSOPHY
Volume V, Number 2, October 1975

Abortion and
The Concept Of A Person*
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JANE ENGLISH, University of North Carolina, Chapel Hill

The abortion debate rages on. Yet the two most popular positions
seem to be clearly mistaken. Conservatives maintain that a human life
begins at conception and that therefore abortion must be wrong
because it is murder. But not all killings of humans are murders. Most
notably, self defense may justify even the killing of an innocent per-
son.
Liberals, on the other hand, are just as mistaken in their argument
that since a fetus does not become a person until birth, a woman may
do whatever she pleases in and to her own body. First, you cannot do
as you please with your own body if it affects other people adversely. 1
Second, if a fetus is not a person, that does not imply that you can do to
it anything you wish. Animals, for example, are not persons, yet to kill
or torture them for no reason at all is wrong.
At the center of the storm has been the issue of just when it is
between ovulation and adulthood that a person appears on the scene.
Conservatives draw the line at conception, liberals at birth. In this
paper I first examine our concept of a person and conclude that no
single criterion can capture the concept of a person and no sharp line
can be drawn. Next I argue that if a fetus is a person, abortion is still
justifiable in many cases; and if a fetus is not a person, killing it is still
wrong in many cases. To a large extent, these two solutions are in

* I am deeply indebted to larry Crocker and Arthur Kuflik for their constructive
comments.

1 We also have paternalistic laws which keep us from harming our own bodies
even when no one else is affected. Ironically, anti-abortion laws were originally
designed to protect pregnant women from a dangerous but tempting
procedure.

233
 jane English

agreement. I conclude that our concept of a person cannot and need

not bear the weight that the abortion controversy has thrust upon it.

The several factions in the abortion argument have drawn battle

lines around various proposed criteria for determining what is and
what is not a person. For example, Mary Anne Warren 2 lists five
features (capacities for reasoning, self-awareness, complex com-
munication, etc.) as her criteria for personhood and argues for the
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permissibility of abortion because a fetus falls outside this concept.

Baruch Brody3 uses brain waves. Michael Tooley 4 picks having-a-
concept-of-self as his criterion and concludes that infanticide and
abortion are justifiable, while the killing of adult animals is not. On the
other side, Paul Ramsey 5 claims a certain gene structure is the defining
characteristic. John Noonan 6 prefers conceived-of-humans and
presents counterexamples to various other candidate criteria. For in-
stance, he argues against viability as the criterion because the new-
born and infirm would then be non-persons, since they cannot live
without the aid of others. He rejects any criterion that calls upon the
sorts of sentiments a being can evoke in adu Its on the grounds that this
would allow us to exclude other races as non-persons if we could just
view them sufficiently unsentimentally.
These approaches are typical: foes of abortion propose sufficient
conditions for personhood which fetuses satisfy, while friends of abor-
tion counter with necessary conditions for personhood which fetuses
lack. But these both presuppose that the concept of a person can be
captured in a strait jacket of necessary and/or sufficient conditions.?

2 Mary Anne Warren, "On the Moral and Legal Status of Abortion," Monist 57
(1973), p. 55.
3 Baruch Brody, "Fetal Humanity and the Theory of Essentialism," in Robert Baker
and Frederick Elliston (eds.), Philosophy and Sex (Buffalo, N.Y., 1975).

4 Michael Tooley, "Abortion and Infanticide," Philosophy and Public Affairs 2

(1971).

5 Paul Ramsey, "The Morality of Abortion," in James Rachels, ed., Moral

Problems (New York, 1971).

6 John Noonan," Abortion and the Catholic Church: a Summary History," Natural
Law Forum 12 (1967), pp. 125-131.

7 Wittgenstein has argued against the possibility of so capturing the concept of a

game, Philosophical Investigations (New York, 1958), §66-71.

234
 Abortion and Concept of a Person

Rather, 'person' is a cluster of features, of which rationality, having a

self concept and being conceived of humans are only part.
What is typical of persons? Within our concept of a person we in-
clude, first, certain biological factors: descended from humans, hav-
ing a certain genetic make-up, having a head, hands, arms, eyes,
capable of locomotion, breathing, eating, sleeping. There are psy-
chological factors: sentience, perception, having a concept of self and
of one's own interests and desires, the ability to use tools, the ability to
use language or symbol systems, the ability to joke, to be angry, to
doubt. There are rationality factors: the ability to reason and draw
conclusions, the ability to generalize and to learn from past ex-
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perience, the ability to sacrifice present interests for greater gains in

the future. There are social factors: the ability to work in groups and
respond to peer pressures, the ability to recognize and consider as
valuable the interests of others, seeing oneself as one among "other
minds," the ability to sympathize, encourage, love, the ability to evoke
from others the responses of sympathy, encouragement, love, the
ability to work with others for mutual advantage. Then there are legal
factors: being subject to the law and protected by it, having the ability
to sue and enter contracts, being counted in the census, having a name
and citizenship, the ability to own property, inherit, and so forth.
Now the point is not that this list is incomplete, or that you can find
counterinstances to each of its points. People typically exhibit
rationality, for instance, but someone who was irrational would not
thereby fail to qualify as a person. On the other hand, something could
exhibit the majority of these features and still fail to be a person, as an
advanced robot might. There is no single core of necessary and suf-
ficient features which we can draw upon with the assurance that they
constitute what really makes a person; there are only features that are
more or less typical.
This is not to say that no necessary or sufficient conditions can be
given. Being alive is a necessary condition for being a person, and be-
ing a U.S. Senator is sufficient. But rather than falling inside a sufficient
condition or outside a necessary one, a fetus lies in the penumbra
region where our concept of a person is not so simple. For this reason I
think a conclusive answer to the question whether a fetus is a person is
unattainable.
Here we might note a family of simple fallacies that proceed by
stating a necessary condition for personhood and showing that a fetus
has that characteristic. This is a form of the fallacy of affirming the con-
sequent. For example, some have mistakenly reasoned from the
premise that a fetus is human (after all, it is a human fetus rather than,
say, a canine fetus), to the conclusion that it is a human. Adding an
equivocation on 'being', we get the fallacious argument that since a
fetus is something both living and human, it is a human being.

235
 jane English

Nonetheless, it does seem clear that a fetus has very few of the
above family of characteristics, whereas a newborn baby exhibits a
much larger proportion of them- and a two-year-old has even more.
Note that one traditional anti-abortion argument has centered on
pointing out the many ways in which a fetus resembles a baby. They
emphasize its development ("It already has ten fingers ... ") without
mentioning its dissimilarities to adults (it still has gills and a tail). They
also try to evoke the sort of sympathy on our part that we only feel
toward other persons ("Never to laugh ... or feel the sunshine?"). This
all seems to be a relevant way to argue, since its purpose is to persuade
us that a fetus satisfies so many of the important features on the list that
it ought to be treated as a person. Also note that a fetus near the time of
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birth satisfies many more of these factors than a fetus in the early
months of development. This could provide reason for making dis-
tinctions among the different stages of pregnancy, as the U.S. Supreme
Court has done.a
Historically, the time at which a person has been said to come into
existence has varied widely. Muslims date personhood from fourteen
days after conception. Some medievals followed Aristotle in placing
ensoulment at forty days after conception for a male fetus and eighty
days for a female fetus 9• In European common law since the
Seventeenth Century, abortion was considered the killing of a person
only after quickening, the time when a pregnant woman first feels the
fetus move on its own. Nor is this variety of opinions surprising.
Biologically, a human being develops gradually. We shouldn't expect
there to be any specific time or sharp dividing point when a person
appears on the scene.
For these reasons I believe our concept of a person is not sharp or
decisive enough to bear the weight of a solution to the abortion con-
troversy. To use it to solve that problem is to clarify obscurum per
obscurius.

II
Next let us consider what follows if a fetus is a person after all.
Judith Jarvis Thomson's landmark article, "A Defense of Abortion,"1o

8 Not because the fetus is partly a person and so has some of the rights of persons,
but rather because of the rights of person-like non-persons. This I discuss in part
Ill below.

9 Aristotle himself was concerned, however, with the different question of when
the soul takes form. For historical data, see Jimmye Kimmey, "How the Abortion
laws Happened," Ms. 1 (April, 1973), pp. 48ft and John Noonan, /oc. cit.

10 ]. ]. Thomson, "A Defense of Abortion", Philosophy and Public Affairs 1 (1971).

236
 Abortion and Concept of a Person

correctly points out that some additional argumentation is needed at

this point in the conservative argument to bridge the gap between the
premise that a fetus is an innocent person and the conclusion that kill-
ing it is always wrong. To arrive at this conclusion, we would need the
additional premise that killing an innocent person is always wrong. But
killing an innocent person is sometimes permissible, most notably in
self defense. Some examples may help draw out our intuitions or or-
dinary judgments about self defense.
Suppose a mad scientist, for instance, hypnotized innocent people
to jump out of the bushes and attack innocent passers-by with knives.
If you are so attacked, we agree you have a right to kill the attacker in
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self defense, if killing him is the only way to protect your life or to save
yourself from serious injury. It does not seem to matter here that the
attacker is not malicious but himself an innocent pawn, for your killing
of him is not done in a spirit of retribution but only in self defense.

How severe an injury may you inflict in self defense? In part this
depends upon the severity of the injury to be avoided: you may not
shoot someone merely to avoid having your clothes torn. This might
lead one to the mistaken conclusion that the defense may only equal
the threatened injury in severity; that to avoid death you may kill, but
to avoid a black eye you may only inflict a black eye or the equivalent.
Rather, our laws and customs seem to say that you may create an injury
somewhat, but not enormously, greater than the injury to be avoided.
To fend off an attack whose outcome would be as serious as rape, a
severe beating or the loss of a finger, you may shoot; to avoid having
your clothes torn, you may blacken an eye.
Aside from this, the injury you may inflict should only be the
minimum necessary to deter or incapacitate the attacker. Even if you
know he intends to kill you, you are not justified in shooting him if you
could equally well save yourself by the simple expedient of running
away. Self defense is for the purpose of avoiding harms rather than
equalizing harms.
Some cases of pregnancy present a parallel situation. Though the
fetus is itself innocent, it may pose a threat to the pregnant woman's
well-being, life prospects or health, mental or physical. If the pregnan-
cy presents a slight threat to her interests, it seems self defense cannot
justify abortion. But if the threat is on a par with a serious beating or the
loss of a finger, she may kill the fetus that poses such a threat, even if it
is an innocent person. If a lesser harm to the fetus could have the same
defensive effect, killing it would not be justified. It is unfortunate that
the only way to free the woman from the pregnancy entails the death
of the fetus (except in very late stages of pregnancy). Thus a self

237
 jane English

defense model supports Thomson's point that the woman has a right
only to be freed from the fetus, not a right to demand its death. 11
The self defense model is most helpful when we take the pregnant
woman's point of view. In the pre-Thomson literature, abortion is
often framed as a question for a third party: do you, a doctor, have a
right to choose between the life of the woman and that of the fetus?
Some have claimed that if you were a passer-by who witnessed a
struggle between the innocent hypnotized attacker and his equally in-
nocent victim, you would have no reason to kill either in defense of
the other. They have concluded that the self defense model implies
that a woman may attempt to abort herself, but that a doctor should
not assist her. I think the position of the third party is somewhat more
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complex. We do feel some inclination to intervene on behalf of the

victim rather than the attacker, other things equal. But if both parties
are innocent, other factors come into consideration. You would rush
to the aid of your husband whether he was attacker or attackee. If a
hypnotized famous violinist were attacking a skid row bum, we would
try to save the individual who is of more value to society. These con-
siderations would tend to support abortion in some cases.
But suppose you are a frail senior citizen who wishes to avoid being
knifed by one of these innocent hypnotics, so you have hired a
bodyguard to accompany you. If you are attacked, it is clear we believe
that the bodyguard, acting as your agent, has a right to kill the attacker
to save you from a serious beating. Your rights of self defense are
transferred to your agent. I suggest that we should similarly view the
doctor as the pregnant woman's agent in carrying out a defense she is
physically incapable of accomplishing herself.
Thanks to modern technology, the cases are rare in which a
pregnancy poses as clear a threat to a woman's bodily health as an at-
tacker brandishing a switchblade. How does self defense fare when
more subtle, complex and long-range harms are involved?
To consider a somewhat fancifu I example, suppose you are a highly
trained surgeon when you are kidnapped by the hypnotic attacker. He
says he does not intend to harm you but to take you back to the mad
scientist who, it turns out, plans to hypnotize you to have a permanent
mental block against all your knowledge of medicine. This would
automatically destroy your career which would in turn have a serious
adverse impact on your family, your personal relationships and your
happiness. It seems to me that if the only way you can avoid this out-
come is to shoot the innocent attacker, you are justified in so doing.
You are defending yourself from a drastic injury to your life prospects.
I think it is no exaggeration to claim that unwanted pregnancies (most

11 Ibid., p. 52.

238
 Abortion and Concept of a Person

obviously among teenagers) often have such adverse life-long conse-

quences as the surgeon's loss of livelihood.
Several parallels arise between various views on abortion and the
self defense model. let's suppose further that these hypnotized at-
tackers only operate at night, so that it is well known that they can be
avoided completely by the considerable inconvenience of never leav-
ing your house after dark. One view is that since you could stay home
at night, therefore if you go out and are selected by one of these hyp-
notized people, you have no right to defend yourself. This parallels the
view that abstinence is the only acceptable way to avoid pregnancy.
Others might hold that you ought to take along some defense such as
Mace which will deter the hypnotized person without killing him, but
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that if this defense fails, you are obliged to submit to the resulting in-
jury, no matter how severe it is. This parallels the view that contracep-
tion is all right but abortion is always wrong, even in cases of con-
traceptive failure.
A third view is that you may kill the hypnotized person only if he
will actually kill you, but not if he will only injure you. This is like the
position that abortion is permissible only if it is required to save a
woman's life. Finally we have the view that it is all right to kill the at-
tacker, even if only to avoid a very slight inconvenience to yourself and
even if you knowingly walked down the very street where all these in-
cidents have been taking place without taking along any Mace or
protective escort. If we assume that a fetus is a person, this is the
analogue of the view that abortion is always justifiable," on demand."
The self defense model allows us to see an important difference
that exists between abortion and infanticide, even if a fetus is a person
from conception. Many have argued that the only way to justify abor-
tion without justifying infanticide would be to find some characteristic
of personhood that is acquired at birth. Michael Tooley, for one,
claims infanticide is justifiable because the really significant
characteristics of person are acquired some time after birth. But all
such approaches look to characteristics of the developing human and
ignore the relation between the fetus and the woman. What if, after
birth, the presence of an infant or the need to support it posed a grave
threat to the woman's sanity or life prospects? She could escape this
threat by the simple expedient of running away. So a solution that does
not entail the death of the infant is available. Before birth, such
solutions are not available because of the biological dependence of
the fetus on the woman. Birth is the crucial point not because of any
characteristics the fetus gains, but because after birth the woman can
defend herself by a means less drastic than killing the infant. Hence
self defense can be used to justify abortion without necessarily
thereby justifying infanticide.

239
 Jane English

Ill
On the other hand, supposing a fetus is not after all a person, would
abortion always be morally permissible? Some opponents of abortion
seem worried that if a fetus is not a full-fledged person, then we are
justified in treating it in any way at all. However, this does not follow.
Non-persons do get some consideration in our moral code, though of
course they do not have the same rights as persons have (and in
general they do not have moral responsibilities), and though their in-
terests may be overridden by the interests of persons. Still, we cannot
just treat them in any way at all.
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Treatment of animals is a case in point. It is wrong to torture dogs

for fun or to kill wild birds for no reason at all. It is wrong Period, even
though dogs and birds do not have the same rights persons do.
However, few people think it is wrong to use dogs as experimental
animals, causing them considerable suffering in some cases, provided
that the resulting research will probably bring discoveries of great
benefit to people. And most of us think it all right to kill birds for food
or to protect our corps. People's rights are different from the con-
sideration we give to animals, then, for it is wrong to experiment on
people, even if others might later benefit a great deal as a result of their
suffering. You might volunteer to be a subject, but this would be
supererogatory; you certainly have a right to refuse to be a medical
guinea pig.
But how do we decide what you may or may not do to non-
persons? This is a difficult problem, one for which I believe no ade-
quate account exists. You do not want to say, for instance, that tor-
turing dogs is all right whenever the sum of its effects on people is
good -when it doesn't warp the sensibilities of the torturer so much
that he mistreats people. If that were the case, it would be all right to
torture dogs if you did it in private, or if the torturer lived on a desert
island or died soon afterward, so that his actions had no effect on peo-
ple. This is an inadequate account, because whatever moral considera-
tion animals get, it has to be indefeasible, too. It will have to be a
general proscription of certain actions, not merely a weighing of the
impact on people on a case-by-case basis.
Rather, we need to distinguish two levels on which consequences
of actions can be taken into account in moral reasoning. The
traditional objections to Utilitarianism focus on the fact that it operates
solely on the first level, taking all the consequences into account in
particular cases only. Thus Utilitarianism is open to "desert island" and
"lifeboat" counterexamples because these cases are rigged to make
the consequences of actions severely limited.
Rawls' theory could be described as a teleological sort of theory,

240
 Acrasia, Normative Psychology

but with teleology operating on a higher level.12 In choosing the prin-

ciples to regulate society from the original position, his hypothetical
choosers make their decision on the basis of the total consequences of
various systems. Furthermore, they are constrained to choose a
general set of rules which people can readily learn and apply. An
ethical theory must operate by generating a set of sympathies and at-
titudes toward others which reinforces the functioning of that set of
moral principles. Our prohibition against killing people operates by
means of certain moral sentiments including sympathy, compassion
and guilt. But if these attitudes are to form a coherent set, they carry us
further: we tend to perform supererogatory actions, and we tend to
feel similar compassion toward person-like non-persons.
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It is crucial that psychological facts play a role here. Our psy-

chological constitution makes it the case that for our ethical theory to
work, it must prohibit certain treatment of non-persons which are
significantly person-like. If our moral rules allowed people to treat
some person-like non-persons in ways we do not want people to be
treated, this would undermine the system of sympathies and attitudes
that makes the ethical system work. For this reason, we would choose
in the original position to make mistreatment of some sorts of animals
wrong in general (not just wrong in the cases with public impact), even
though animals are not themselves parties in the original position.
Thus it makes sense that it is those animals whose appearance and
behavior are most like those of people that get the most consideration
in our moral scheme.
It is because of "coherence of attitudes'; I think, thatthe simi larityof a
fetus to a baby is very significant. A fetus one week before birth is so
much like a newborn baby in our psychological space that we cannot
allow any cavalier treatment of the former while expecting full sym-
pathy and nurturative support for the latter. Thus, I think that anti-
abortion forces are indeed giving their strongest arguments when they
point to the similarities between a fetus and a baby, and when they try
to evoke our emotional attachment to and sympathy for the fetus. An
early horror story from New York about nurses who were expected to
alternate between caring for six-week premature infants and dispos-
ing of viable 24-week aborted fetuses is just that - a horror story.
These beings are so much alike that no one can be asked to draw a dis-
tinction and treat them so very differently.
Remember, however, that in the early weeks after conception, a
fetus is very much unlike a person. It is hard to develop these feelings
for a set of genes which doesn't yet have a head, hands, beating heart,
response to touch or the ability to move by itself. Thus it seems to me
that the alleged" slippery slope" between conception and birth is not

12 John Rawls, A Theory of justice (Cambridge, Mass., 1971), §§ 3-4.

241
 jane English

so very slippery. In the early stages of pregnancy, abortion can hardly

be compared to murder for psychological reasons, but in the latest
stages it is psychologically akin to murder.
Another source of similarity is the bodily continuity between fetus
and adult. Bodies play a surprisingly central role in our attitudes
toward persons. One has only to think of the philosophical literature
on how far physical identity suffices for personal identity or
Wittgenstein's remark that the best picture of the human soul is the
human body. Even after death, when all agree the body is no longer a
person, we still observe elaborate customs of respect for the human
body; like people who torture dogs, necrophiliacs are not to be
trusted with people. 13 So it is appropriate that we show respect to a
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fetus as the body continuous with the body of a person. This is a degree
of resemblance to persons that animals cannot rival.
Michael Tooley also utilizes a parallel with animals. He claims that it
is always permissible to drown newborn kittens and draws conclusions
about infanticide. 14 But it is only permissible to drown kittens when
their survival would cause some hardship. Perhaps it would be a
burden to feed and house six more cats or to find other homes for
them. The alternative of letting them starve produces even more suf-
fering than the drowning. Since the kittens get their rights second-
hand, so to speak, via the need for coherence in our attitudes, their in-
terests are often overriden by the interests of full-fledged persons. But
if their survival would be no inconvenience to people at all, then it is
wrong to drown them, contra Tooley.
Tooley's conclusions about abortion are wrong for the same
reason. Even if a fetus is not a person, abortion is not atways permissi-
ble, because of the resemblance of a fetus to a person. I agree with
Thomson that it would be wrong for a woman who is seven months
pregnant to have an abortion just to avoid having to postpone a trip to
Europe. In the early months of pregnancy when the fetus hardly
resembles a baby at all, then, abortion is permissible whenever it is in
the interests of the pregnant woman or her family. The reasons would
only need to outweigh the pain and inconvenience of the abortion
itself. In the middle months, when the fetus comes to resemble a per-
son, abortion would be justifiable only when the continuation of the
pregnancy or the birth of the child would cause harms- physical, psy-
chological, economic or social- to the woman. In the late months of
pregnancy, even on our current assumption that a fetus is not a per-

13 On the other hand, if they can be trusted with people, then our moral customs
are mistaken. It all depends on the facts of psychology.

14 Op. cit., pp. 40, 60-61.

242
 Abortion and Concept of a Person

son, abortion seems to be wrong except to save a woman from signifi-

cant injury or death.
The Supreme Court has recognized similar gradations in the alleg-
ed slippery slope stretching between conception and birth. To this
point, the present paper has been a discussion of the moral status of
abortion only, not its legal status. In view of the great physical, finan-
cial and sometimes psychologicc}l costs of abortion, perhaps the legal
arrangement most compatible with the proposed moral solution
would be the absence of restrictions, that is, so-called abortion "on
demand."
So I conclude, first, that application of our concept of a person will
not suffice to settle the abortion issue. After all, the biological
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development of a human being is gradual. Sewnd, whether a fetus is a

person or not, abortion is justifiable early in pregnancy to avoid
modest harms and seldom justifiable late in pregnancy except to avoid
significant injury or death.

March 1975

243