I want to consider abortion in a different way, one that offers no hard and fast delineations, and yet addresses the intuition, held by many, that there is nothing wrong with disposing of the early cellular mass that will eventually develop into a fetus, while there is something very wrong with disposing of a late term fetus. I will do this by means of an epistemological interpretation of the concept of potentiality, in which our uncertainty concerning the organism’s ability to develop to fruition plays a role in whether or not we allow it a right to life.

Ability-rights vs Value-rights.

I propose to use an old conservative strategy and start from a consensus position: it is morally wrong to kill an infant. We do not allow infants to be killed because they are, in some sense, valuable, and it doesn’t matter whether this value is inherent or stipulated. If infants were not deemed valuable we would have no qualms about destroying them, healthy or not, but we do have qualms. This is important because a value-based right functions differently than an ability-based right. With an ability-right we attain the right only when we attain the ability. We don’t say, of the twelve year old, “Look, it’s obvious this kid is going to develop into a fully responsible adult, so let’s give him the right to vote now.” We don’t because the fact that he will develop the ability in the future is irrelevant. But this isn’t so with value based rights, which might be granted before the relevant valuation is actualized.

Suppose you own a piece of property that is, at present, virtually worthless, but there are plans to build an interchange on the adjacent interstate highway that will make your property extremely valuable in the future. Once these plans become public knowledge your property becomes more valuable based on these future expectations. Call the value of your property once the interchange is built its Actual Value (AV). As long as construction of the interchange is uncertain, the value of your property will remain at or around its original value, for there are many complications in the world of road building, including funding, politics, and other factors that might waylay the interchange plans; but once the building is well on its way, the AV begins to be realized. At some point (a point where the future plans look to be inevitable) the once worthless property is worth AV even before the interchange is finished, i.e., a developer will pay you AV in order to obtain your property.[1] If a developer is convinced the timely opening of the interchange is inevitable he would be irrational, ceterus paribus, not to pay you AV. When we are convinced of the inevitability of completion, we naturally act as if the potential has already been realized. This is the force of the inevitability claim, even when subjective.

An Epistemic Interpretation of Potentiality

The term ‘potential’ can be used in at least two very different, though related, ways. It can mean “possible,” in the sense that every sperm is a potential infant; or it can mean “probable,” in the sense that a late term fetus is a potential infant. Because of this, ‘potential’ has an epistemic interpretation in which these two senses constitute the opposite ends of a continuum: on the left it means “highly improbable” (that the potential will be actualized), on the right it means “inevitable.” The left side of the continuum is epistemically opaque and cannot be translated into a knowledge claim, but becomes more transparent as we move toward the right. The far right side yields a strong knowledge claim, which is a function of inevitability. If we are convinced that at a certain point it is inevitable that a potential P will become an actual A, then we are justified in saying at that point we know (almost) certainly that P will become A. I want to capture this by means of the following Valuation Principle:

VP: Where P, now, is something that will at some time in the future develop into A, which has value, we are justified in treating P as if it is A once we are convinced of the inevitability that P will become A.

In terms of the abortion debate, we know an actual child has a right to life; thus, the only important issue is at what point along the developmental spectrum (we are justified in claiming) it is inevitable the potential child will become an actual child, because at that point we will act as if it is an actual child and thus endow it with all the rights and privileges of the actual child. This will not be a point determined by particular characteristics; we don’t even know what characteristics are rights-giving in this sense. The point will be determined only by an odds calculation. Thus potential talk is here cashed in terms of knowledge. If we make a strong knowledge claim concerning the inevitability that P will become A, then we would be irrational not to act as if P is A.

Our perception of what the odds are that something in the future will happen, dictates how we act in the present. If I am heavily and profitably invested in the stock market and receive word from a trusted source of an upcoming economic crisis that will have a severe and adverse affect on my investments I will act in accordance with what I perceive to be the odds of the crisis actually occurring. If we build inevitability into the scenario so that I am absolutely certain the crisis will occur, I would be irrational not to act as if the future were already the present. The greater the odds the future will be realized, the more we treat the future like the present. As we approach inevitability, the distance between present and future collapses. When we perceive the odds to be great that a fetus will become a child we act as if the future was the present and treat the fetus as a child.

Some might balk at letting an odds calculation determine personhood, but knowledge is crucial in making moral decisions and talk of odds is to be cashed in terms of knowledge. Suppose someone breaks into my home and threatens to kill my family, and in response I shoot and kill the intruder. I do not intend to kill him, but in the heat of the moment or maybe in a scuffle, a shot is fired, the bullet hits a vital area and the intruder dies. This seems like a paradigm case of justifiable homicide, but suppose we find out later the intruder was suicidal and his gun was not even loaded. This does not change the moral nature of my act because I had no way of knowing his gun was not loaded. If it crossed my mind as I was about to shoot him the thought might give me pause, but, having no evidence behind it, would not stop me from shooting him. As we increase the evidence I have that the intruder is suicidal and his gun is not loaded, though, the morality of my action changes correspondingly.

Conception

This correlation between knowledge and morality is at the heart of potentiality claims. When potentiality tails off towards the merely possible, we no longer have any good reason for treating the potential organism as an actual organism. Consider conception, where the claim is made that a wonderful thing happens: at that point a complete genetic code exists within the zygote. This is often held to be important because it gives the zygote a completely different potential than either of its prior components. To deny this is to either deny the special moral value of the zygote or to promote the moral value of the individual sperm or the individual ovum so that to waste either might become immoral. Making it murder to ejaculate sperm or not to make every effort to fertilize every ovum is a reductio argument against the position that implies it.

The huge number of possible combinations available before conception is often touted as the primary reason why ovum and sperm do not have moral worth while the zygote does. In looking for a relevant Valuation Point the anti-abortionist holds the move from sperm/ovum to zygote as a move from highly improbable to probable since there are literally billions of potential combinations of sperm and ovum before fertilization and only one potential person afterward.[2] It is true that the incredible number of sperm makes it impossible to know which combination will obtain, but which combination obtains is not important. The only important fact is whether or not the ovum will be fertilized by some sperm or other, and the incredible number of sperm makes it highly probable this will occur. Thus fertilization is not a move from a highly improbable state to a probable state, and thus no Valuation Point can be established based upon this. Anti-abortionists talk about the potential of any one sperm and an ovum becoming a zygote, while they should talk about the potential of an ovum becoming a zygote, and when this correction is made the ovum is seen to have as much potential as the zygote for eventually becoming a neonate because of the high probability that fertilization will occur (the odds of fertilizing a healthy ovum, in a female who wants to become pregnant, are far more toward the inevitable side of the spectrum than the merely possible side).

This conclusion cannot be escaped by talk of inherent worth or essential properties. Suppose I collect a healthy ovum from a female in order to fertilize it in vitro. I’m in the lab, about to perform the procedure, when the woman enters and says she has changed her mind. In response, I destroy the ovum. Have I done something immoral? Those who get emotional when a fertilized ovum is destroyed or denied implantation, who picture the infant that could have resulted and now will never have a chance to live and develop, should likewise be upset about destroying this ovum. Talk of “full genetic complements” and “one whole naturally developing individual” is all ad hoc talk introduced to avoid the logical conclusion: the ovum in the lab example and most healthy ova produced by females have as much chance of developing into an infant as will the oocyte moments after penetration by the sperm, or the zygote or the blastocyst.

The anti-abortionist who claims the zygote to be as valuable as a neonate tries to show there is a non-arbitrary valuation point separating the zygote from the unfertilized ovum, otherwise the ovum itself will also become as valuable as the neonate, dictating women everywhere are obliged to either do their best to fertilize every ovum or else commit murder. To avoid this absurdity he usually tries to establish the inherent value of the zygote, but no matter what characteristics are used to establish the valuation, a like claim can be made of the ovum. For example, those who wish to establish conception as the valuation point on the development spectrum where the organism attains moral value claim the zygote has moral value because it is a complete, living, self-directed, whole organism with a full genetic complement, giving it specific capacities and properties, all of which work together to eventually bring the organism to the point of maturity. In other words, the zygote has all it needs to develop into an infant, but we can say the same of the pre-fertilized ovum: The pre-fertilized ovum has moral value because it is a complete, living, self-directed, whole organism with half a genetic complement, giving it specific capacities and properties, all of which work together to eventually bring the organism to the point of maturity. One might reply that the ovum does not have all it needs in order to develop eventually into a neonate, viz., it must be fertilized, but the “all it needs” phrase must be cashed in vague terms to avoid begging the question, for the zygote doesn’t have all it needs in this sense either. After all, it needs a blood supply, nutrition, a healthy environment, and a host of other things external to it in order to be all it can be. The zygote has all it needs, except for those things it will acquire as development progresses if all goes well, a fact which is also true of the ovum. Thus, the only relevant reason for stressing the importance of the full genetic complement is that it bolsters the odds argument in which the notion of potentiality is used to argue that since there are hundreds of millions of possible combinations of sperm and ovum, there is no actual subject of harm until fertilization has occurred. We have already seen the flaw in this position.

Drawing Lines

Because there is no significant change in the odds between ovum and zygote, the odds of an ovum becoming an infant are almost identical to the odds of a zygote becoming one—not good. With an estimate of as high as 60% of pregnancies ending in spontaneous abortion, we have to put both ovum and zygote on the left side of the potential continuum, which means neither is entitled to a right to life.

We can use this same reasoning for any proposed rights-giving characteristic, generalized as follows:

For any point P during the development of an organism where a proposed rights-giving property occurs, we can imagine a point N, either several days before or after P, and the odds of the organism developing into a neonate will not differ from N to P.

If we could show an increase in the odds of producing a neonate when a specific valuation point is reached and this increase is proven to be attributable to whatever occurs at that valuation point, then we may be able to argue that the valuation point is preferable. I suspect there is no one point at which the odds increase. We know by the second trimester the overall odds have increased significantly, but this is true of any significant time span when compared to any other previous time span. There doesn’t seem to be any one factor that contributes to this. This should not worry us, however, for the increase in odds at the second trimester might be significant enough for us to make the judgment that the odds are great enough at that point that the fetus will become an infant so that we should act as if the fetus is an infant and so grant it a right to life.

My claim regarding potentiality captures the dual intuitions, shared by many, that there certainly doesn’t seem to be anything immoral about disposing of the individual sperm or ovum or the resulting group of cells, even if these have a complete genetic complement, and there certainly does seem to be something immoral about disposing of a late term fetus or a neonate. Of course there are vagaries: AV is reached when it is “seen to be inevitable” and “at some point we can say the fetus has value.” The only way to eliminate the vagaries is to introduce an Omniscient Observer, and claim that even if we don’t know the embryo will make it to term, God knows; but God would also know which sperm and ovum will make it to term, and so we still lose conception as a non-arbitrary valuation point.

Only our omniscient observer can truly make inevitability claims. We humans are stuck with epistemological opacity, which is why I stress the subjective nature of inevitability, which is thus equated with certainty. Certainty, as a psychological state, cannot guarantee truth, yet it has moral force. In the above example, if I was (rightly or wrongly) certain the intruder’s gun was not loaded and shot him anyway, surely I have done something morally wrong. I may feel it misguided if a woman deduces the inevitability of birth once she discovers her pregnancy, but if she feels this way and then proceeds to take a morning after drug, something may be morally amiss.[3]

There have been many suggested non-arbitrary valuation points over the years, including conception, implantation, fetal form, fetal movement (real and perceived), initial brain activity, organized cortical brain activity, and viability, none of which can be shown to be relevant except as inevitability indicators. Viability, for example, is usually derided as arbitrary since it makes the valuation point dependent upon the present level of technology, which doesn’t seem morally relevant, for the valuation point shifts each time there is an advance in technology. But if we view viability as a method of attempting to determine inevitability of outcome this is neither absurd nor arbitrary, since the morality of our actions depends upon knowledge, and technology allows us to increase this knowledge. So also with quickening, which has long been held to be the most arbitrary of indicators—when the mother feels the baby move within her. How could such a thing be morally relevant? From the mother’s perspective, though, this might be a touchstone that gives her a sense of the inevitability of her situation, and if so, may very well be a valuation point for her.

Final Considerations

One might argue since we don’t know whether any given organism will make it to term, we should err on the side of safety and never abort. Two points here: 1) The claim that, having become pregnant, the woman should remain so, begs the question, for it assumes an objective valuation point has been drawn at conception. I am denying all objective valuation points. 2) I’m uncomfortable with any claim that tells a woman what she has to do with her body, particularly in the early stages of pregnancy. I think the claim we should err on the side of safety must be weighed in light of a woman’s right to live her own life. The inevitability indicators I already mentioned might play a role when a woman is making this decision, but since there is no decisive valuation point, the woman must be the judge. This vagueness might be upsetting to some, but I take it to be a strength of the position rather than a weakness. Dogmatists want a hard and fast line because it allows them to point the finger of guilt at those who don’t act as they say, but gray areas are the very nature of morality given a world in which we do not have perfect knowledge.

Footnotes

[1] This does not mean that the AV is the premium price. Rather, it establishes a baseline value for the property with respect to the interchange. The future price (some time after the interchange is in place and open to traffic) might be worth more than the AV. [return]

[2] Assuming the woman is doing everything possible to become pregnant: thus we count multiple ejaculations from multiple motile partners during the ovum’s fertile window of five to ten days. (One billion is conservative since each ejaculate can contain up to 600 million sperm.) [return]

[3] I would add a ceterus paribus clause to any of these examples, since there is still the issue of the fetus’ rights versus the woman’s rights, which is left unresolved. [return]