Abortion and the viability test fallacy (with update 11 May 08)
A month or two ago I submitted a letter to The Observer about abortion, pointing out that the pro-choice lobby (those in favour of recognising women's right to choose what to do about an unwanted pregnancy) was making a big mistake by tacitly accepting the anti-abortion people's proposition — that abortion should be allowed, if at all, only up to the point when the foetus has developed sufficiently to be theoretically viable outside the womb: the viability test. The Observer didn't publish my letter so in March I put it on this blog instead.
Later, on 27 April 2008, The Observer published a letter (not apparently available online) about abortion signed by David Steel (Lord Steel of Aikwood) and 27 others — a letter to be taken seriously in view of Lord Steel's status as the father and prime mover of the great abortion reform Act of 40 years ago, which at last legalised abortion in certain defined circumstances, and largely put the back-street abortionists out of business. The Act licensed abortion up to the 28th week of a pregnancy, the point at which the foetus was regarded at the time as becoming viable. But, in the words of David Steel in an article in The Independent newspaper on 30 April 2008, reflecting the same approving assumptions about the viability test as those made in his Observer letter three days earlier, —
The one thing we [sic] did change since 1967 was that we agreed in 1990 that the presumption of viability at 28 weeks was out of date and should come down to 24 weeks. The BMA, the Royal College of Obstetrics and Gynaecology and the national body representing neonatal paediatric specialists have now, on the basis of powerful recent research, concluded – and they are backed up by a House of Commons Science and Technology Committee report – that there has been no reduction in the threshold of viability to below 24 weeks. The expert medical professional bodies are of the view that there should be no further reduction in the upper time limit and I believe that politicians should be guided by them.
In response to the Observer letter (and the Independent article which made the same point) I had another go at a letter for publication, with the same result (i.e. this one wasn't published either!):
David Steel (letters, 27.04.08) has done more than anyone else to civilise our abortion law, so it's especially sad to see him and 27 others relying on the deeply flawed foetus-viability test as the main reason for keeping the present 24-week cut-off point for legal abortions.
There's no basis in ethics or logic for the claim that once a foetus achieves theoretical viability outside the womb, aborting it should be forbidden: why should viability suddenly invest the foetus with the rights of a developed person (which it isn't) and suddenly revoke the right of the mother to control of her own body?
Anyway, viability is a fluid concept, varying from person to person and place to place: medical science will inevitably make viability possible earlier and earlier, eventually to the moment of conception, at which point applying the viability test will make all abortion illegal once again. Changes in medical science can't affect the moral status of a foetus, nor deprive the mother of her rights. We really need to abandon any association between viability and the time when abortion ceases to be permitted; otherwise Lord Steel's great achievement will soon come to nothing.
Those, including pre-eminently the Roman Catholics, who want abortion banned altogether, opportunistically latch on to the viability test (which is anyway inconsistent with their own theological position) as a way to reduce bit by bit the period during which abortion is legally permitted, knowing that as advances in medical science makes a foetus 
theoretically viable outside the womb at an ever earlier stage of its development, eventually permitting a fertilised human egg to be developed in the laboratory immediately after conception, the inevitable outcome will be the prohibition of all abortions at any stage of a pregnancy. We shall be back to square one, back-street abortionists and all. Yet (as I pointed out in my blog post of 16 March) David Cameron for the Conservatives, the responsible Labour minister, and now David Steel himself, have all committed themselves to this fallacious and retrograde principle.
Acceptance of the viability test is logically misguided and extremely dangerous in practice. Rejecting it entails abandoning an assumption which, almost unbelievably, has guided policy for both the pro- and anti-choice camps for forty years. It's surely time for those who believe in a woman's right to control over her own body to jettison it before it's too late. We should be guided, not as Lord Steel proposes by doctors or scientists, and still less by the priests (none of whom is any better equipped to make a judgment on the issue than anyone else), but by our liberal and ethical principles, if we have any.
Update (11 May 08): I was relieved to see this in Polly Toynbee's Guardian article on 9 May:
So the Mail prints pictures of thumb-sucking foetuses with stories of four miracle babies that survived extreme premature births. Never mind that the whole notion of viability has no rational connection to any limit on the date for abortions: from the moment of conception every zygote is potentially viable. But "pro-lifers" reckon if they can win the argument in principle that a "viable" foetus can never be aborted, then some day, when the science permits, they will win an outright ban.
Exactly so. Yet the swelling discussion of this issue on radio and television and in the print media, as the parliamentary debate draws near, is almost entirely conducted on the assumption that the viability test is decisive. It's mystifying that even the pro-choice lobby — with a few valiant exceptions such as Polly Toynbee — seems content to fight this battle on ground of the mediaevalists' choice.
Brian
Brian, if you think technological change makes no difference to duties to fetuses, could please explain why technological change does make a difference to duties to the other cases we treat using medical techniques unavailable in the past? Should we deny cancer patients chemotherapy because stone age humans couldn't have used it? As I think I've said before, what drives I think your view on abortion is that no fetus has any rights. I think that's a really implausible view. Whether or not it is in fact a really implausible view, it has nothing to do with whether or not a viability standard makes the content of our duties objectionably variable (which it clearly doesn't).
Brian writes: Rob, as you rightly say, we have been over this ground before (see in particular https://barder.com/ephems/719#comment-55241 and the exchanges of comments preceding and following it). Your question about chemotherapy is puzzling: there clearly can't be a duty to do that which is impossible, nor a right to have something that doesn't exist — the fact that it may subsequently become possible and available can't affect that simple proposition. The point is that there's no logical progression from the "is" proposition "the foetus has become theoretically viable" to the "ought" proposition "from now on it is wrong to abort it": the second simply doesn't follow logically from the first, especially if you accept that abortion should be allowed at least up to the point of viability. There is no "therefore" relationship between the two parts. Yes, I do hold that the rights of persons override the rights, if any, of foetuses, which are not persons and can't be endowed with the rights of persons. Of course it's undesirable to destroy a living foetus (which is a preferable way of referring to any rights that a foetus might possess), but there can be many circumstances in which destroying it is the least objectionable of the available options, and the person who has an overriding entitlement to make that judgment is the pregnant woman of whom the foetus is in a sense still a part. No-one else is entitled to limit or override that fundamental right of the woman, who is the person with incomparably more at stake than any other person, including the father. Even if you believe that a foetus has rights, you have no basis for asserting that those rights supersede the rights of the woman concerned. Least of all do priests and bishops, politicians, governments and parliaments, medical and other scientists and their professional bodies, or even bloggers, have any moral status whatever for claiming to override the pregnant woman's freedom to decide what to do about her own pregnancy.
We have been over this before, and you were wrong in exactly the same way before. It is only because you assume that your opponents hold your position on the moral status of the fetus that it is difficult for you to see why changes in technology might change the content of its rights or duties to it. The point of the chemotherapy example is to point another case where presumably it is clear that changes in technology do change the content of someone's rights or duties to them. The reason you find it difficult to see that this could apply to fetuses is because you think it is impossible for fetuses to have rights or us to have duties to them. Of course it is impossible to go from the fact 'a fetus is viable outside the womb' (the theoretically is a piece of weaselling here) to the principle 'we ought not to destroy the fetus' but if you include some further principle – of the sort you deny but your opponents affirm – like 'suitably well-developed fetuses which can survive outside the womb ought to not be destroyed', then there's no problem in moving from the fact to the principle. As for the no-one other than the person whose putative rights claim is at stake has any right to dispute that right claim you end with, it's a piece of cant.
Brian writes: Rob, let's put aside the language of 'wrong', 'weaselling' and 'cant', and concentrate instead on trying not to misrepresent each other's views in order to knock them down. I also suggest that we henceforth avoid as far as possible the language of 'rights', which raises more questions than it answers.
The chemotherapy analogy doesn't apply because it describes an obligation that depends on the availability of the ability to discharge it. We are not here discussing an advance in medical science which has any causal or other connection with a change in anything's or anyone's moral status. In your analogy, the development of a treatment for cancer that was not previously available clearly entails a duty on doctors, for example, to use that treatment for the benefit of cancer patients; that duty can't have existed previously, because the treatment didn't exist. Even in your analogy, no change in the moral status of cancer patients (or of doctors) is involved, nor could such a change possibly be brought about by any scientific development. In the case of foetuses, it's plainly true (as I said myself) that in general it's undesirable to destroy a live foetus: IOW, one 'ought' not to do it unless the alternative to destroying it is worse than destroying it. You're welcome to express this, if you like, in terms of the foetus having a moral status involving the undesirability, other things being equal, of destroying it. But this undesirability (or moral status) can't be affected by advances in medical science: it's undesirable to destroy it at any time, regardless of whether it could theoretically survive if removed from the womb. And the qualification 'theoretically', very far from being 'weaselling', is absolutely essential here. You apparently contend that a reasonable criterion for deciding when to oblige a pregnant woman to keep a foetus in her womb is whether, if the foetus were to be removed, it could survive and develop independently. By definition, on this argument, you can't know whether in practice it could survive outside the womb, because you won't allow it to be removed: its capacity to survive outside is purely theoretical. This is also important because the hypothetical (notional, theoretical) point of viability of a foetus which isn't actually going to be removed from the womb will be different in every case, depending on the health of the pregnant woman and her foetus, the availability in her town, country or continent of sophisticated medical practitioners, equipment and drugs, local standards of hygiene and nutrition, and a thousand other variables. To proclaim that all foetuses attached to all women everywhere become viable at 24 or 20 or any other number of weeks, and then to make that the legal limit beyond which abortion is forbidden, is arbitrariness gone mad.
It is self-evidently true, moreover, that such moral status as a foetus possesses is different in extent and in kind from the moral status of a person. The obligation to respect, protect and prolong as far as possible the life of a person, save in the most exceptional and unusual circumstances, is one of the bed-rock principles of human society. To assert that the same is true of a foetus needs to be demonstrated, since it is deeply counter-intuitive and unsupported by any generally accepted ethical principle. Conversely, another feature of the moral status of a person is the general obligation, save in extremely unusual circumstances, to respect each person's ability to control his or her own body and to have the last word in decisions affecting it, provided that no other person's control over his/her body or ability to make final decisions affecting it is thereby abridged. This is a necessary consequence of general principles of freedom and autonomy, and its denial amounts to a form of non-consensual tyranny by one person over another, which is almost universally regarded as unacceptable. (One obvious exception here is the relationship between children and parents or persons acting in loco parentis. But that is irrelevant to the question of abortion.)
Your re-formulation of my two logically unconnected propositions — "suitably well-developed fetuses which can survive outside the womb ought to not be destroyed" — is purely circular: you have introduced into it that which you seek to prove, a prime example of begging the question. You still haven't explained (understandably, because no explanation is available) what 'suitable development' of a foetus has got to do with any obligation or recommendation not to destroy it. Why is it, by implication, acceptable to destroy it before it has reached some arbitrary point of development, but so unacceptable to destroy it after that point has been reached that it's justifiable to pass a law making it a criminal offence to do so, thus robbing the woman carrying the foetus of her autonomy, her control of her own body, and her capacity for making a reasoned judgment of all the options open to her, including the option of aborting the foetus if she decides that that is the least objectionable course of action available?
Finally, you attribute to me (and dismiss it as 'a piece of cant'!) the assertion that "no-one other than the person whose putative rights claim is at stake has any right to dispute that right claim". But in fact I expressly acknowledged that others besides the pregnant woman — the father, as an obvious example — are entitled to a view on the pros and cons of aborting the foetus compared with the consequences of not aborting it; and in the case of those expressing such a view for or against an abortion who will be personally affected to greater or lesser degree by the eventual decision, the woman concerned has an obligation to hear and consider the views and advice of those stake-holders. What I do say, however, is that the woman is ultimately under no obligation to subordinate her own final decision to the views of anyone else, because she more than anyone else is the person most profoundly affected by the consequences of that decision. For anyone — a Roman Catholic Cardinal or village priest, a government or a member of parliament, a leader-writer or a blogger — to seek to act in such a way as to limit the options of a pregnant woman at any stage of her pregnancy is an outrageous interference in her autonomy as a person; in her freedom. To the priest and the politician she's entitled to say: Mind your own business!
And that's all I propose to say on this subject, unless and until someone raises an authentically new aspect of it.
You have made a mistake about what I am arguing. I am not trying to argue that a viability test is decisive; I very much doubt that this one at least is. What I am arguing is that what you say about the irrelevance of a viability test talks past the relevant issue, as you must see you do when you deny the analogy between viability and chemotherapy. Obviously, the fact that we could do something is no reason to do it, so anyone who thinks that we could keep a fetus alive outside its mother after a certain point in pregnancy must think we already have a reason to keep the fetus alive. What is at dispute between you and people who think a viability test is relevant – an issue on which I have no particularly strong opinions, which is not to say that I have no strong opinions on time limits on abortion or on persistently arguing past your opponents – is the moral status of the fetus; they think there is a reason to keep it alive, and you dispute that. Since they do think there is a reason to keep it alive, whatever it is that you think that's self-evident about its moral status, it's not self-evident: you wouldn't be having a dispute about it otherwise. I have not here at least argued either for or against any claims about the moral status of the fetus; I'm trying to point out the structure of the debate. And I stand by the claim about cant, since it clearly is cant to deny your opponents in a debate the right to disagree with you.
Brian writes: Oh, dear. Have I been that unclear?
You claim that proponents of the viability test "think there is a reason to keep [the foetus] alive, and you dispute that." No, I don't. Indeed I have said the exact opposite.
You say that "it clearly is cant to deny your opponents in a debate the right to disagree with you." Leaving aside this strange usage of 'cant'**, it would be both stupid and wrong to seek to deny my "opponents in a debate" the "right" to disagree with me — and I don't; even if I had such an extraordinary power, which I don't, I wouldn't dream of exercising it, as the existence of this blog, among other things, demonstrates.
I would certainly like to deny the anti-abortion lobby the "right" to deprive pregnant women, when faced with sometimes appalling dilemmas, of one of their essential and rightful options, namely to choose an abortion as the least objectionable available solution in certain sad circumstances. But that's a very different matter.
I think that this must terminate an increasingly unproductive argument between us: it has begun to take us away from the relevant issues, on which others may like to comment.
**cant: "As a kind of phraseology: a. Phraseology taken up and used for fashion's sake, without being a genuine expression of sentiment; canting language.
b. Affected or unreal use of religious or pietistic phraseology; language (or action) implying the pretended assumption of goodness or piety." — OED Online
Plainly inapplicable here.
Update added to this post: I have added an update to the post above with an apt and succinct quotation from an excellent recent column by Polly Toynbee — not just the passage I have quoted but the whole column is well worth reading.
There must be at least one visitor to this blog willing to have a go at a defence of the viability test as the cut-off point for legal abortion? Perhaps not; after all, it’s indefensible….