Women in Italy protest abortion laws. Image credit: Giuseppe Garelli / Wikimedia Commons
Most people in the United States, according to the Pew Research Center, believe abortion is a right—a claim affirmed by voters in all seven states that have put this issue on the ballot. But in the wake of the Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision, other states have begun to severely restrict abortion access, resulting in lawsuits and predicted shortages of medical professionals. And political discussions about abortion are often doing more damage than good. Both the Republican and Democratic parties tend to quelch discussions internally and take a hard line in public debates, which is divisive and undermines national political debate and process. Such debates typically hinge on the question of when life begins—and we seem unable to reconcile our differing personal (ethical, religious, or metaphysical) beliefs in finding an answer.
But the focus on this question is where public debate about legislation goes wrong. We don’t need to reach agreement on when life begins. What we need is to understand differences between the legal and personal justifications for the permissibility of abortion.
To see why, let’s look not at the start, but the end of life. In cases of “brain death,” when other biological processes can be sustained by medical equipment, legal guardians decide whether to continue life support, often according to deeply held personal beliefs about whether the person remains alive. Those whose religious beliefs include an immortal soul might answer “yes,” for example, while a metaphysical naturalist might answer “no.” Neither decision is considered the right one for all citizens; indeed, a free society legally protects every person’s right to their own answers about when human life ends in these situations.
Likewise, we cannot define when life begins in a shared, legal sense by pointing either to conception or to the very early stages of cellular development. Such a definition involves making a value judgment about something empirical (a cluster of dividing cells): a judgment that can only be justified by deeply personal religious, ethical, and metaphysical convictions—of the very kind of diversity that a free democracy protects and values.
Philosophers have long debated when life begins, and Judith Jarvis Thomson’s 1971 “A Defense of Abortion” is especially important to contemporary debates. Thomson starts with a thought experiment to help those who cannot be or have not been pregnant understand the complexity of the abortion issue from a first-person perspective. She invites readers to imagine that they have been kidnapped, that their body has been attached to that of a famous violinist and that only they can save the violinist, who needs to stay connected to their body for the next nine months. She then asks: Do you have the right to cut the cord?
As a professor of philosophy, when I teach this example to my students, it doesn’t take long before they realize that their different answers rest quite heavily on their own deeply personal preconceptions and commitments. When others do not share the same personal perspective, they are not swayed by the same arguments. And the philosophical debates that follow from Thomson’s paper show that there are several good answers to the question—just as there are several good answers to the question of when life begins, each rooted in different conceptions of personhood.
Given the intensity of philosophical disagreements over when life begins, it is important to appreciate that this disagreement doesn’t mean that we can’t nevertheless find enough common ground to produce unifying and profoundly justifiable abortion laws. Indeed, philosophy can help us understand why such laws do not and, in fact, cannot depend upon our deeply personal beliefs. The Kantian philosophical tradition, for instance, has the advantage of appealing to anyone who is committed to each person’s right to freedom.
In Political Liberalism, the Kantian theorist John Rawls argues that countries with political systems based on principles of freedom, liberal democracies like the United States, can only sustain themselves if they decide constitutional matters without appeal to deeply personal beliefs. If decisions are grounded in deeply personal beliefs, the resulting laws will be inherently oppressive to others, and trespass on personal freedoms. It is thus important that we learn to discuss such issues as abortion as both private persons, going about our own personal lives, and as public persons, who must use reason to decide which laws should govern everyone.
Our public leaders, therefore, cannot legislate on behalf of all of us if they justify their arguments according to their own personal views. And yet Rawls’s argument cannot tell us exactly how to reason about abortion, specifically, nor can it help us decide whether and why there is a general difference between the legal permissibility of early versus late-term abortions.
Immanuel Kant’s own legal and political theory cannot only solve this problem but also give us better resources with which to think about abortion. Kant’s philosophy distinguishes a legal conception of personhood from a deeply personal (ethical, religious, metaphysical) conception of personhood. He therefore provides a basis for separating the legalities of abortion from our deeply personal beliefs. This distinction directs us away from the intractable disagreement over the beginning of a human life and instead towards a legal discussion we can solve together. It enables us to direct our attention toward a cluster of fetal activities that suggest the legal beginning of life, which may or may not correspond with one’s personal beliefs.
Consider the following thought experiment.
Step one: Think about a human being—yourself or someone in front of you—and try to explain what makes them a type of being that is morally responsible for their actions. You will likely soon start appealing to deeply personal religious, ethical, or metaphysical ideas about their personhood, soul, spirit, et cetera.
Step two: Now try to say something about what a court of law should look to if they hold someone legally responsible for their actions. Notice that when you do, you likely don’t appeal to whatever you appealed to in step one. Instead, it is more likely that you simply try to determine whether they are able to be both aware of their actions and the laws regulating those actions, and whether they regard their own actions as something they can control through choice. It follows that the legally significant starting point is evidence of a capacity that, as we grow up, will develop into this legal ability to be responsible for our actions. We don’t, of course, hold anyone legally responsible before this capacity is developed into an ability—not until, for example, a child is able to be legally responsible (so understood)—but that is not the point here. The point is that the legally relevant starting point is minimal evidence of this capacity. This is different from the answers you gave under step one, which is also where the current public debates get stuck.
But when can we plausibly say that there is clear evidence of such a minimal capacity in the growing cluster of human cells that makes up a pregnancy?
In some languages, the legally significant fact we are looking for is called “quickening.” In Kantian terminology, this stage of development marks the beginning of unified, conscious, spontaneous action—free spontaneity—that cannot be explained simply by cells dividing. Obviously, this is not “maturity” or what we look to when we judge if someone is able to be legally responsible (step two), but it is the beginning of a cluster of cells now acting as one (unified) with a minimal notion of awareness (conscious) and freely in what is happening is no longer explainable as simply these cells being subjected to some scientific laws. This is merely the beginning—a brute capacity—that enables the ability that we later look for in the courtroom. So even though we can make a religious, metaphysical, or ethical argument for why life starts at conception, this will not be the relevant legal answer. Instead, “quickening” is the legally significant moment, since it reveals a minimal capacity for conscious and spontaneous action that ultimately becomes developed into our ability for legal responsibility. Correspondingly, it is any evidence of this capacity that is gone in “brain death” cases.
To arrive at unifying and profoundly justifiable abortion laws, and reproductive health laws more broadly, our thinking cannot stop there, however.
When our shared public institutions use the law to criminalize those who, due to lack of access, are unable to invoke their right to an abortion (however this right is specified), they fail to uphold the basic human rights and freedoms our democracy is supposed to guarantee. Therefore the stricter the law, the more active state support must be to ensure that persons who can become or who are pregnant can access abortion. Otherwise, the legal system (unintentionally) deprives people of their rights or radically fails to protect them. But most countries, including the United States, are unable to provide reliable access to health care services for pregnant citizens, let alone residents.
The lack of reliable access to reproductive health care resources, and thus to early choices, is further complicated by such determining factors as class, race, and geography. These are the same obstacles that have historically prevented our public institutions from treating each person as free.
Abortion is just one issue that demonstrates the importance of not enforcing on others our deeply personal beliefs and instead valuing and protecting them. For example, our democracy protects and values the ethical beliefs associated with both conservative and liberal social values, political beliefs that value a minimal or more expansive state, or very different religious beliefs. Abortion is a thorny issue because it directly intersects with some of our deepest, most intimate concerns. In fact, we recognize this when we (personally or legally) deal with the end of life as well as disagreements about religion, so why not with other diverse or contrary beliefs?
The point is that we can and should do this; we do not need to be stuck where we are on abortion. No amount of scientific knowledge about zygotes or fetal development or metaphysical investigations into the soul or personhood can settle objectively the question of when life begins. Instead, switching the discussion to legal personhood in combination with a discussion of state-guaranteed provision of reproductive health services provides us with a useful starting point for public discussions on enforceable abortion rights. Kantian philosophy provides principled reasons, supported by long-standing historical and cultural practices, to actively, respectfully, and publicly debate what laws should be. Then we can entrust those who hold the relevant public offices to make this determination in a way that represents and can unify us despite our different deeply personal answers to the question of life’s beginning and in a way that is justifiable given the state’s ability to provide health care to pregnant persons.
Political wisdom—and the good safeguarding and improvement of our inherited democracy—requires deep respect and careful listening to those who are different from us and whose lives our laws, policies, and words affect and are supposed to protect. Public leaders who do not have a uterus must listen to those who do, as well as to medical personnel who care for pregnant persons and to experts who do research on related topics. To become great public leaders, they must strive to understand the challenges involved in facilitating great public discussions, which could involve engaging with James S. Fishkin and Robert C. Luskin’s proposals regarding deliberative polling and Cass Sunstein’s ideas about deliberative trouble. Such works help us understand, for example, why our intuitions are often not reliable, and that we need to be more careful about trusting those immediate intuitions.
Although we Kantians do and will continue to discuss Kant on abortion, the existing interpretations already give us what we need to move beyond the current political quagmire that is doing serious damage to our country. And by listening to and engaging with other reliable sources of knowledge, public leaders can more easily combat their own prejudices and engage in public deliberations on our behalf without using divisive, moralizing, and inflammatory language. They can enable us to come together and develop wise laws that sustain and further advance our democracy. We can do this!
Helga Varden is a Professor of philosophy at the University of Illinois at Urbana-Champaign, and she is a Public Voices Fellow and a member of the OpEd Alumni Project sponsored by the University of Illinois.