I choose to side with women, because they will have the responsibility for the results of that decision, and I trust their ability to weigh the alternatives carefully. The "pro-life" side picks fetuses, because they have little confidence in the moral judgment of women. These women have, after all, "gotten themselves pregnant," as one state legislator put it. They have obviously sinned and are deserving of punishment. A fetus, on the other hand, is virginal and pure.
mary kay blakely, New York Times
Feminism as a perspective stands squarely in a humanist philosophical and historical tradition. Because feminists are "defenders and advocates" of women who live in the real world, their vantage point is necessarily historical as well as humanist.1 Generations of earlier feminists subscribed to a set of moral principles that were abstract and universalist, drawn from the natural rights doctrine of the Enlightenment or from religious faith. They were arguing for the application of those principles (including the right of "selfhood") to the other half of the human race. Yet in practice, they found themselves having to discard all traditions, all moral "authorities." They had to rewrite the Bible, as Elizabeth Cady Stanton did, and to redraft every legal code because all sources of traditional morality, even enlightened republicanism, originated in patriarchal power and "maligned" women.
Thus, even as they drew from a male-dominated culture for the language and perhaps some of the conceptual framework of a feminist moral sensibility, "women’s rights" advocates in the past also looked to the actual conditions of women—their work, their marital and sexual relations, their education or lack of it—to determine the elements of a new, antipatriarchal moral vision. Their perspective, in other words, was implicitly contextual and social, its references being the relations between women and men, women and children. Similarly, many feminists today, locked in the abstract moral language of "prochoice" and "privacy" derived from a male-dominated tradition of liberal individualism and property rights, nevertheless ground their practical morality about abortion in the real relations in which the necessity for abortion arises. This is the often inchoate, unarticulated perspective I refer to as "moral praxis," and it is that perspective that informs the discussion of abortion morality in this chapter and the one to follow.
My approach to understanding the moral problems of abortion is premised on the conviction that prevailing ideas about morality are inevitably shaped by their historical and cultural contexts. This is as true of the concept of "personhood" as it is of the concepts of "murder" or "maternal duty"; such concepts change historically and across cultures, which is evidence that they are neither biologically rooted nor divinely ordained. Our only reliable source of verification for their rightness or wrongness is their impact on human life and on the welfare and consciousness of human beings. Willis points out that the distinction between "to kill" and "to murder" is itself understood by most legal and ethical systems, including that of the Catholic church, as relative to particular situations. "It makes no sense to discuss whether abortion is murder without considering why women have abortions and what it means to force women to bear children they don’t want."2 The changing conditions of women are part of the total context of the morality of abortion. No amount of scientific measurement or reading of ancient theological texts can determine the "social, political and moral" meanings either of the act of abortion in a given case or of what it is to be a "person" in today’s society: "Nothing outside the practice of a human group can decide or determine its membership, since it is comprised of just those individuals who have reciprocal practical relations with each other."3
Any serious discussion of the moral and ethical issues of abortion must be prefaced by a clear understanding that the status of the fetus and whether it shall be regarded as a "person" or a "human life" do not exhaust the bases for moral inquiry about abortion. Whether anyone can be compelled to carry and nourish a fetus she does not want is also a moral issue. Philosophers and moralists who assume that the "humanity of the fetus" is the bottom-line issue in the "abortion dilemma" close their eyes to the fact that in many cultures and historical periods this way of framing the abortion question (fetus versus woman) was unknown. While abortion practices seem to have existed in all recorded times and cultures, the values and sanctions attached to them have been remarkably variable. Devereux’s survey of primitive and ancient societies, for example, uncovers a tremendous variety of attitudes toward abortion and the fetus, "[ranging] from mild resignation to deep horror," with a corresponding range of social signs and sanctions expressing approval or disapproval. Burial customs give evidence of such differences; some cultures bury fetuses ‘Tike adults/’ others distinguish between miscarried and aborted fetuses for burial purposes, still others discard them indiscriminately "in the refuse heap/’ and at least one cannibalizes them "in times of famine."4
Significantly, in primitive and ancient societies that have regarded abortion as wrong, it is not usually the fetus that is considered the wronged party. On the contrary, sanctions against abortion are invoked more often on behalf of the family, the tribe, the state, or the husband or maternal uncle, depending on the prevailing basis of patriarchal authority. Under Roman law, an imperial decree declared that if a woman obtained an abortion, she should be exiled, "for it may be considered dishonorable for a woman to deprive her husband of children with impunity."5 Thus, ancient patriarchal law valued the fetus as it valued children, slaves, and wives: as the father’s property rather than in its own right.
Most current literature on the morality of abortion and on how pregnant women understand that morality is striking for its historical amnesia. It assumes that moral discourse is static and given rather than socially constructed. As we saw earlier, the major historians of abortion in nineteenth-century England and America find a widespread popular acceptance of the practice prior to "quickening," an assumption that there was no "murder" until then because there was no "child" until then. Abortion "was simply a fact of American life," and if it was thought to raise any moral issues, those had to do with women’s "health and safety" rather than the status of the fetus.6 Knowing the particular conditions in which abortion came to be seen as immoral, its association with lapsed "maternal duty," and the instrumental role of physicians in promoting those ideas gives us a useful historical perspective. It helps us to see that the "moral agonies" and guilt cited by "right-to-lifers" as the intuitive effects of abortion are the product of historically distinct cultural norms. Specifically, the idea that abortion is "murder" and you are "killing a baby" is a culturally generated one, not shared by many eras and peoples.
Contemporary moral discourse about abortion is constructed out of "a distinct moral language," one that may be identified with a particularly female regimen of socialization and moral development: "the language of selfishness and responsibility, which defines the moral problem as one of obligation to exercise care and avoid hurt."7 This language is recognizable as the discourse of maternalism, which women in modern industrial societies, whether they become mothers or not, are trained to internalize and to embody in their behavior toward others.8 Social historians document that the modern definition of motherhood as total and selfless devotion to one’s biological children was not shared by our preindustrial forebears in Western Europe and that the "preciousness" of each child is a modern—and thoroughly ideological—invention.9 As feminist analysis shows, however, this "modernization" of motherhood, its "civilization" within the property relations of the bourgeois family, may be seen as unqualifiedly "progressive" only if we exclude the vantage point of the mother herself.
Similarly, the idea of "fetal personhood" and of the fetus as the primary protagonist in the abortion conflict is relatively new to secular thought. Where that idea has emerged historically, it has been linked with an attack on the social position and morality of women. Indeed, I argue that the moral construction of the "abortion dilemma" as one that pits the fetus against the woman in an adversarial relationship of two separate "persons" is not only a relatively recent concept but also a distortion of reality. Even within Catholic doctrine, the precise moment when the fetus became "animated" with a soul was for centuries the source of some dispute; Catholic moral theologians throughout the early modern period argued for various exceptions and qualifications to the abortion prohibition. Not until the mid-eighteenth century did the papacy, facing a decline in its authority and a rise in the use of birth control and abortion, impose a much stricter doctrine; and not until 1869 was abortion at any stage of pregnancy, for any reason, declared a mortal sin punishable by excommunication.10
Of course, the recent provenance of an idea does not attest to its truth or falsehood. Nor can we infer what is right from popular belief and practice alone, as borne out by innumerable examples of popular compliance in moral atrocities. Jacques Maritain is unanswerable when he says: "All this proves nothing against natural law, any more than a mistake in addition proves anything against arithmetic, or the mistakes of certain primitive peoples, for whom the stars were holes in the tent which covered the world, prove anything against astronomy."11 Without subscribing to a theory of natural law, it is possible to posit a humanist moral philosophy that is principled yet defines good and evil in terms of the real needs of human beings as they exist in their relations with one another. It is false to link relativism irrevocably with amorality. An awareness of the historical particularity of moral concepts also allows us a healthy caution about absolutist positions and to question the very terms of ongoing moral debate; that is, it makes critical inquiry possible. Who or what constitute "persons"—beings who share rights and duties within a human legal and moral community—is preeminently a moral, legal, and philosophical question and therefore subject to the historical and cultural variations I have been talking about.
The concept of personhood prevalent in modern Anglo-European legal and political thought from the seventeenth century on has reflected the bourgeois values of rationalism, intellectualism, individualism, and property ownership—as opposed, say, to the value of kinship or lineage that prevailed in the Middle Ages. As a result, in its practical applications, the concept has often excluded certain groups of mature human beings, insofar as they were defined as irrational, primarily emotional or "sensual/’ dependent, and propertyless. Based on such criteria, women, blacks, prisoners, the pauperized and institutionalized, and, until relatively recently, most wage-earning men as well, were alienated from the community of moral and legal persons in many Western societies and prevented from exercising their full social capacities.12 Nevertheless, the liberal humanist tradition associating personhood with rationality and consciousness has had a liberating aspect as well, since it invokes a universalistic standard to which all, presumably regardless of social rank, can lay claim. It provided the philosophical basis for the antislavery and feminist movements in the nineteenth century, which argued that neither rationality nor moral autonomy was the exclusive province of white male property owners. Those movements did not argue that because women and slaves breathe, have human bodies, or are able to copulate and produce human offspring, they should be accorded full rights as citizens. Such an argument would have been perceived as intrinsically degrading, in a rationalistic-humanistic culture, and yielding to the very stereotypes used to oppress women and blacks. Rather, it was the dignity and humanity of possessing reason, consciousness, and free will that feminist and black leaders invoked in asserting their claim to full personhood.13
This concept of personhood has been incorporated into the common law and the U. S. Constitution, which, it is worth observing, have never recognized the unborn as "persons." While in the 1860s and 1870s many states adopted statutes making abortion a felony, thereby reversing the long-standing leniency of the law, abortion was nowhere declared a homicide.14 In Roe v. Wade, the Supreme Court explicitly refused to find constitutional sanction for the view that the fetus is a full human person from conception or otherwise, declaring that this view has no basis in the constitution or "in the law," nor any consensus within "medicine, philosophy and theology." Moreover, the Court found that the use of the word "person" in the Fourteenth Amendment carries no meaning that "has any possible prenatal application."15
It should be remembered that the Fourteenth Amendment was passed by Congress after the Civil War expressly to protect the rights to life and liberty of adult males of African descent.16 Personhood was equated in the amendment with citizenship, from which all adult women were excluded because they were deemed to lack the capacity to reason and to exercise independent political judgment. Nevertheless, it was not the definition of "persons" embodied in the amendment to which feminists objected, but the exclusion of women from that definition. Today, the promise of the natural rights concept of personhood remains unfulfilled, even in a formal sense; witness the defeat of the Equal Rights Amendment in 1982. Groups such as blacks and women, who were presumably "emancipated" by the Thirteenth, Fourteenth, and Nineteenth Amendments, remain economically, socially, and politically less than full persons in American society. The "right-to-life" movement seeks to alter radically the rationalistic concept of personhood inherited by the U. S. Constitution from the Enlightenment. Without embracing that concept, we can nonetheless see that, in this effort, "right-to-lifers" degrade the political struggles of large groups of living, mature, conscious human beings who still have not won the rights of full persons, even in the bourgeois liberal sense. "Right-to-iifers" correctly perceive that such a change in the legal meaning of personhood could be effected only through a constitutional amendment.17 As the Supreme Court recognized in Roe v. Wade, however, the concept of "fetal personhood" raises moral and philosophical problems that go beyond the capacity of legislative or judicial mechanisms to resolve.