Prenatal Harm and Preemptive Abortion in a Two-tiered Morality

In Chapter 4 of The Ethics of Killing, ‘Beginnings’, Jeff McMahan provides an extraordinarily rich and illuminating account of the complex interplay of interests in abortion. My interest is in seeing whether his account can shed light on one of the more vexing problems about abortion in moral philosophy and public policy; one that divides proponents of a woman’s right to choose. Most who support a woman’s right to abort a foetus at a stage when McMahan would regard it as numerically identical to the child and adult it would likely become if not aborted, i.e., towards the end of the second trimester, believe that a woman has not merely the legal right, but the moral prerogative, to do so for almost any reason, and to change her mind about whether to do so up to that point for almost any reason. McMahan’s account suggests some moral limits, ones that will rarely be breached in practice (p. 276). A woman who is truly in equipoise about whether to carry that late foetus should probably do so, since its time-relative interests in becoming a child and adult, however slight, are greater than nothing; thus McMahan might agree that it was morally wrong for a woman to resolve her indifference with a coin toss. She may also have interests in having an abortion so slight or trifling as to be outweighed morally by the foetus’s interests in surviving, or a ‘pro-abortion’ balance of strong but conflicting interests so slight as to be outweighed. But these will be rare, if not fanciful, cases, and they would require a fine calculus of interests best left to the woman’s own conscience. I am more interested in a different class of cases—those in which a woman, fully intending to have a child, does unavoidable, reckless or deliberate injury to the foetus and alters, or equivocates about, her intention to carry it to term. On McMahan’s account, as I understand it, the injury to the foetus, and the woman’s role in causing it, may provide her with any number of reasons for changing her mind, from the additional expense to the profound guilt (whether warranted or not) of raising the impaired child she injured in utero. Since the foetus still has only a weak time-relative interest in surviving—surely no stronger for the injury it received—these new reasons may well tip the balance, giving the mother a greater time-relative interest in aborting than the foetus has in surviving, and making her change of intention and her decision to abort morally acceptable. But this may not be a fully adequate account, because it seems to let the woman off the hook too easily in cases where her injury to a foetus she intended to bear was reckless or deliberate. Many of us have a stubborn conviction that, if doctors should not be able to bury their mistakes, pregnant women and their partners should not be able to abort their reckless or gratuitous prenatal torts with moral impunity.