Should we repeal the Eighth Amendment?

Ireland will have a referendum on whether abortion should be permitted on 25th May. A referendum has to be held in order to alter the constitution. In 1983 voters approved of the Eighth Amendment – which created a constitutional recognition that gives equal status to the unborn and the mother – but requests to have it repealed have been steadily increasing in the past number years. In January, the Taoiseach, Leo Varadkar, said Ireland’s abortion laws are “too restrictive and need to be reformed”.

If the amendment is repealed, the government may introduce legislation permitting unrestricted abortion up to 12 weeks of pregnancy. At present, terminations are only permissible when the life of the mother is at risk, and under law anyone who seeks an abortion could potentially face 14 years in prison.

Opponents of abortion, to be sure, see this as a moral horror, but the 12-week limit being proposed is fairly similar to abortion laws across Europe. Abortion is available on request until the 12th week in Austria, Belgium, the Czech Republic, Denmark, France, Germany and Italy; while other countries such as Britain, Sweden, Spain and the Netherlands have laws that go beyond the 12-week limit.   

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There’s probably no ethical issue more contentious than abortion in Ireland today. It has received extensive coverage in the media long before the government announced the referendum. On the whole, the debate has been sharply contested and it hasn’t allowed much space for reasoned debate. Here, I would like to briefly – and dispassionately – discuss the ethics of abortion.  

Those who are anti-abortion say the key question is when human life begins. They believe the answer must be at conception, when sperm and egg unite. I’m happy to accept that life begins at conception – or at least 14 days afterwards when it’s no longer possible for the embryo to divide into twins – and that a new human individual has come to exist, in the sense that it’s a member of the species Homo sapiens.

However the claim is trivial. It’s not sufficient to say that because an embryo is a living human being, belonging to the species Homo sapiens, it’s wrong to kill it. The effort by opponents of abortion to identify the beginning of human life on scientific grounds naively misunderstands the role science plays in moral reasoning. The fallacy involves the move from the empirical claim that unborn foetuses are living human beings to the ethical claim that they have the same moral status as every other human individual. In other words, it commits the is-ought fallacy. Anti-abortionists still need to explain why it’s wrong to end human life.

Another tactic is to highlight the resemblance of the foetus to infants and adults. Some pro-life advocates argue that foetuses, earlier than 12 weeks after conception, look similar to an older child: they can respond to stress, their hearts are beating and their feet, legs, arms and hands all look very familiar. But why are such resemblances morally relevant? Philosophers Laura Purdy and Michael Tooley have pointed out that if pig foetuses resembled adult humans, nobody would say it’d be wrong to kill them. Who thinks a baby doll has the same moral status as an infant child? The foetus may resemble older humans in many ways, but it doesn’t show it has a right to life. For the argument to work it would have to show that there was something more present (e.g. psychological capacities) than a select number of physical resemblances. It’s fair to say that any appeal to resemblance, in the abortion debate, is an attempt to persuade others by appealing to their emotions rather than putting forward well thought out arguments.      

It’s also the case that we cannot simply defend abortion by an appeal to a woman’s right to choose. If we assume the unborn foetus and the woman have the same right to life, it’s not clear that she has the absolute right to control her own body; and temporarily restricting her autonomy, in order to protect the right of the foetus, would seem to be a defensible position, or at least one that is open to debate.

Some of the pro-abortion rhetoric seems to suggest that once you maintain that a woman has the right to choose, you don’t even need to address the question of what is the moral status of the unborn foetus. I think that’s a mistake – and it’s precisely the point that opponents of abortion contest. No one would say laws around smacking children are a matter of parental choice. Those who defend a woman’s right to control her own body cannot avoid the issue of the moral status of the foetus for it must be first established that the foetus falls inside the domain of personal choice.    

Another argument commonly presented says that abortion is a private matter between a woman and her doctor. It begs the question, though, by assuming that abortion is essentially an individual healthcare matter. In other words, it assumes precisely what is being debated. Others argue that it’s possible for someone to be morally opposed to abortion themselves but still be pro-choice. However, that would only seem to make sense if we already believed that abortion is morally defensible, or at least only slightly wrong. And, moreover, it’s not very likely to be effective when it comes to convincing those who equate abortion with murder.    

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A better approach, in my view, is to argue that it’s only wrong to kill conscious beings (or, arguably, only those who are self-conscious). Any living organism, including a human organism, cannot satisfy this requirement unless it has, at least, the capacity for consciousness. Human foetuses probably don’t develop this capacity until after 20 weeks of gestation – still several weeks before the 12-week limit. Therefore, according to this view, it would not be wrong to abort a human foetus anytime during the first trimester. The interest of the pregnant woman, during the first 12 week period (and perhaps beyond that point), clearly outweigh any interest the unborn foetus has. In view of the fact that an early foetus is not yet sentient, it’s unreasonable to want to defend it against the interest of a woman who is unwillingly pregnant.

Some anti-abortionists might be tempted to say abortion involves the killing of innocent individuals with immaterial souls. But there isn’t any evidence that foetuses, let alone adult humans, have souls. This point of view is generally associated with religion, but opponents of abortion may be reluctant to admit that their opposition is directly connected to their faith – as it would seem to undermine the claim that one doesn’t need to be religious in order to oppose abortion. More importantly, though, esoteric theological claims should not be used as the basis for laws in a modern secular state which has a bearing on people with different faiths and none at all.     

Another common response is to say that all humans, regardless of their psychological abilities, have a right to life. But why should we regard species membership, in itself, as a special reason to be endowed with a right to life? Just about all adult non-human mammals have much higher psychological capacities than a human foetus at 12 weeks. It seems rather arbitrary to give additional value to non-sentient human foetuses than the more developed non-human animals that we regularly eat for food. I don't think it's plausible that species membership alone can be a sufficient basis of moral status. Surely what matters are the mental capacities that a being possesses rather than whether it is a member of a particular species.

One typical answer to this is to admit that human foetuses lack the relevant properties, but that they have the potential to develop them in the future. That is to say, it is wrong to abort foetuses that are potentially sentient (or self-conscious) beings.  But does it follow that a potential X has the same rights as an X? It doesn’t seem clear that it does. Micheál Martin is a potential Taoiseach of Ireland, but he currently doesn’t have the rights of a Taoiseach now. If the potentiality argument is accepted, we might also have to acknowledge that using effective contraceptives, sexual abstinence and celibacy also denies potential human life. However I doubt many opponents of abortion would want to accept this conclusion. Yet it’s difficult to see how the argument can succeed against abortion without also succeeding against sexual abstinence and celibacy.

In order to avoid that conclusion, anti-abortionists might draw a distinction between what is an active potential and a passive potential. According to this view, only the former has a right to life. Sperm and egg cells, for example, only have a passive potentiality to become sentient beings; early foetuses, on the other hand, have an active potentiality. However it’s unclear what reason there can be for thinking that the denial of an active potentiality is morally worse that a passive one. In both instances a potential sentient being is denied the chance to exist, and it’s doubtful that ending the process is worse at one stage than the other.        

Probably the most sophisticated and nuanced position against abortion comes from Don Marquis’ ‘future like ours’ argument. One main reason why it’s generally wrong to kill adult humans is that it would deprive them of a future of value – e.g. seeing their children grow and develop, enjoying time with friends and family, and getting to know more about the world. Being deprived of these possible futures is bad. In the same way, according to Marquis, it’s generally wrong to kill a human foetus because it is expected to have a future of value – a future like ours. This would, of course, not include cases where a future of value is not achievable (e.g., when the foetus is expected to die before birth or shortly afterwards), but it would still be relevant in non-exceptional cases.

Nevertheless if we say the killing of a foetus is wrong because we deprive something of value to it, isn’t it also wrong if you fail to conceive a baby? This is not the case, Marquis argues, because human foetuses are individual human organisms (like you and me). Sperm and egg cells are not human organisms and therefore do not have a future of value. It’s only wrong to harm existing individuals, like human adults and most foetuses.  But can we really say that it’d be as bad to kill a human foetus as an older child or adult? I think there are important and relevant moral distinctions between the two cases. Foetuses aborted prior to 12 weeks of gestation, in contrast to older children and adults, don’t yet have the capacity for consciousness and nor do they look forward to their future. If this is correct, aborting a foetus in the first trimester appears to have more in common with a decision to not have a child than the killing of an adult human.  

One other possible objection is that even if one thinks the arguments in favour of abortion are, on balance, more persuasive, there’s still a chance one is mistaken. People are often overconfident about their moral judgements. Throughout history, many intelligent people were mistaken about their beliefs about slavery or the subjection of women; perhaps future generations, in the same way, will consider abortion to be a very serious form of wrongdoing.

We should certainly take the idea of moral uncertainty seriously, but does that mean abortion is something that is too risky to permit? I don’t think it necessarily is, though perhaps it could persuade pro-choice advocates to be a little more humble and less cocksure than is sometimes the case. Conversely, the Eighth Amendment inflicts large costs on many people who face a crisis pregnancy; and if abortion is actually not wrong, restricting women’s access to it would also be a serious form of wrongdoing.

Moral uncertainty about abortion may persuade some pro-choice advocates that there are some reasons to avoid it, but that the practice should still not be prohibited. It would also give the State reason to invest more into crisis pregnancy resources and to offer more effective sex education programmes in schools in order to minimise abortion rates. Opponents of abortion should also be reminded of the fact that thousands of women living in Ireland travel to the UK or elsewhere to access abortion services every year. As we know, this carries additional health risks, psychological hardship, and a financial burden for many women – and it could be significantly reduced if abortion was available in Ireland. Retaining the Eighth Amendment won’t stop abortions from occurring – they will just continue to be exported elsewhere.

The Referendum Commission Of Ireland