ON THE MORAL AND LEGAL STATUS

OF ABORTION
We will be concerned with both the moral status of abortion,
which for our purposes we may define as the act which a woman
performs in voluntarily terminating, or allowing another person to
* terminate, her pregnancy, and the legal status which is appropriate

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for this act. I will argue that, while it is not possible to produce a
satisfactory defense of a woman's right to obtain an abortion with-
out showing that a fetus is not a human being, in the morally rele-
vant sense of that term, we ought not to conclude that the difficulties
involved in determining whether or not a fetus is human make it
impossible to produce any satisfactory solution to the problem of
the moral status of abortion. For it is possible to show that, on the
basis of intuitions which we may expect even the opponents of abor-
tion to share, a fetus is not a person, and hence not the sort of entity
to which it is proper to ascribe full moral rights.
Of course, while some philosophers would deny the possibility
of any such proof,1 others will deny that there is any need for it,
since the moral permissibility of abortion appears to them to be too
obvious to require proof. But the inadequacy of this attitude should
be evident from the fact that both the friends and the foes of abor-
tion consider their position to be morally self-evident. Because pro-
abortionists have never adequately come to grips with the conceptual
issues surrounding abortion, most if not all, of the arguments which
they advance in opposition to laws restricting access to abortion fail
to refute or even weaken the traditional antiabortion argument, i.e.,
that a fetus is a human being, and therefore abortion is murder.
These arguments are typically of one of two sorts. Either they
point to the terrible side effects of the restrictive laws, e.g., the
deaths due to illegal abortions, and the fact that it is poor women
1. For example, Roger Wertheimer, who in "Understanding the Abor-
tion Argument" {Philosophy and Public Affairs, 1, No. 1 [Fall, 1971],
67-95), argues that the problem of the moral status of abortion is insoluble,
in that the dispute over the status of the fetus is not a question of fact at
all, but only a question of how one responds to the facts.
*
44 MARY ANNE WARREN

who suffer the most as a result of these laws, or else they state that >
to deny a woman access to abortion is to deprive her of her right to
control her own body. Unfortunately, however, the fact that restrict-
ing access to abortion has tragic side effects does not, in itself, show «
that the restrictions are unjustified, since murder is wrong regardless
of the consequences of prohibiting it; and the appeal to the right to
control one's body, which is generally construed as a property right,
is at best a rather feeble argument for the permissibility of abortion.
Mere ownership does not give me the right to kill innocent people
whom I find on my property, and indeed I am apt to be held re- ^

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sponsible if such people injure themselves while on my property. It
is equally unclear that I have any moral right to expel an innocent
person from my property when I know that doing so will result in
his death.
Furthermore, it is probably inappropriate to describe a woman's
body as her property, since it seems natural to hold that a person is *
something distinct from her property, but not from her body. Even
those who would object to the identification of a person with his
body, or with the conjunction of his body and his mind, must admit
that it would be very odd to describe, say, breaking a leg, as damag-
ing one's property, and much more appropriate to describe it as in-
juring oneself. Thus it is probably a mistake to argue that the right
to obtain an abortion is in any way derived from the right to own h
and regulate property.
But however we wish to construe the right to abortion, we can-
not hope to convince those who consider abortion a form of murder
of the existence of any such right unless we are able to produce a
clear and convincing refutation of the traditional antiabortion argu-
ment, and this has not, to my knowledge, been done. With respect ,
to the two most vital issues which that argument involves, i.e., the
humanity of the fetus and its implication for the moral status of
abortion, confusion has prevailed on both sides of the dispute.
Thus, both proabortionists and antiabortionists have tended to ab-
stract the question of whether abortion is wrong to that of whether
it is wrong to destroy a fetus, just as though the rights of another *
person were not necessarily involved. This mistaken abstraction has
led to the almost universal assumption that if a fetus is a human
being, with a right to life, then it follows immediately that abortion
MORAL AND LEGAL STATUS OF ABORTION 45

is wrong (except perhaps when necessary to save the woman's life),

and that it ought to be prohibited. It has also been generally as-
sumed that unless the question about the status of the fetus is an-
swered, the moral status of abortion cannot possibly be determined.
Two recent papers, one by B. A. Brody,2 and one by Judith
Thomson, 3 have attempted to settle the question of whether abor-
tion ought to be prohibited apart from the question of whether or
not the fetus is human. Brody examines the possibility that the fol-
lowing two statements are compatible: (1) that abortion is the tak-
ing of innocent human life, and therefore wrong; and (2) that

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nevertheless it ought not to be prohibited by law, at least under the
present circumstances.4 Not surprisingly, Brody finds it impossible
to reconcile these two statements, since, as he rightly argues, none of
the unfortunate side effects of the prohibition of abortion is bad
enough to justify legalizing the wrongful taking of human life. He
is mistaken, however, in concluding that the incompatibility of
(1) and ( 2 ) , in itself, shows that "the legal problem about abor-
tion cannot be resolved independently of the status of the fetus
problem" (p. 369).
What Brody fails to realize is that (1) embodies the questionable
assumption that if a fetus is a human being, then of course abortion
is morally wrong, and that an attack on this assumption is more
promising, as a way of reconciling the humanity of the fetus with
the claim that laws prohibiting abortion are unjustified, than is an
attack on the assumption that if abortion is the wrongful killing of
innocent human beings then it ought to be prohibited. He thus
overlooks the possibility that a fetus may have a right to life and
abortion still be morally permissible, in that the right of a woman
to terminate an unwanted pregnancy might override the right of the
fetus to be kept alive. The immorality of abortion is no more demon-
strated by the humanity of the fetus, in itself, than the immorality
of killing in self-defense is demonstrated by the fact that the as-

2. B. A. Brody, "Abortion and the Law," The Journal of Philosophy,

68, No. 12 (June 17, 1971), 357-69.
3. Judith Thomson, "A Defense of Abortion," Philosophy and Public
Affairs, 1, No. 1 (Fall, 1971), 47-66.
4. I have abbreviated these statements somewhat, but not in a way
which affects the argument.
46 MARY ANNE WARREN

sailant is a human being. Neither is it demonstrated by the innocence

of the fetus, since there may be situations in which the killing of
innocent human beings is justified.
It is perhaps not surprising that Brody fails to spot this assump-
tion, since it has been accepted with little or no argument by nearly
everyone who has written on the morality of abortion. John Noonan
is correct in saying that "the fundamental question in the long his-
tory of abortion is, How do you determine the humanity of a
being?" 5 He summarizes his own antiabortion argument, which is
a version of the official position of the Catholic Church, as follows:

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. . . it is wrong to kill humans, however poor, weak, defenseless,
and lacking in opportunity to develop their potential they may be.
It is therefore morally wrong to kill Biafrans. Similarly, it is
morally wrong to kill embryos.6
Noonan bases his claim that fetuses are human upon what he calls
the theologians' criterion of humanity: that whoever is conceived
of human beings is human. But although he argues at length for
the appropriateness of this criterion, he never questions the assump-
tion that if a fetus is human then abortion is wrong for exactly
the same reason that murder is wrong.
Judith Thomson is, in fact, the only writer I am aware of who
has seriously questioned this assumption; she has argued that, even
if we grant the antiabortionist his claim that a fetus is a human being,
with the same right to life as any other human being, we can still
demonstrate that, in at least some and perhaps most cases, a woman
is under no moral obligation to complete an unwanted pregnancy.7
Her argument is worth examining, since if it holds up it may
enable us to establish the moral permissibility of abortion without
becoming involved in problems about what entitles an entity to
be considered human, and accorded full moral rights. To be able
to do this would be a great gain in the power and simplicity of the
proabortion position, since, although I will argue that these problems
can be solved at least as decisively as can any other moral problem,

5. John Noonan, "Abortion and the Catholic Church: A Summary His-

tory," Natural Law Forum, 12 (1967), 125.
6. John Noonan, "Deciding Who is Human," Natural Law Forum, 13
(1968), 134.
7. "A Defense of Abortion."
MORAL AND LEGAL STATUS OF ABORTION 47

we should certainly be pleased to be able to avoid having to solve

them as part of the justification of abortion.
On the other hand, even if Thomson's argument does not hold
up, her insight, i.e., that it requires argument to show that if fetuses
are human then abortion is properly classified as murder, is an ex-
tremely valuable one. The assumption she attacks is particularly
invidious, for it amounts to the decision that it is appropriate, in
deciding the moral status of abortion, to leave the rights of the
pregnant woman out of consideration entirely, except possibly when
her life is threatened. Obviously, this will not do; determining what

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moral rights, if any, a fetus possesses is only the first step in de-
termining the moral status of abortion. Step two, which is at least
equally essential, is finding a just solution to the conflict between
whatever rights the fetus may have, and the rights of the woman
who is unwillingly pregnant. While the historical error has been
to pay far too little attention to the second step, Ms. Thomson's sug-
gestion is that if we look at the second step first we may find that
a woman has a right to obtain an abortion regardless of what rights
the fetus has.
Our own inquiry will also have two stages. In Section I, we will
consider whether or not it is possible to establish that abortion is
morally permissible even on the assumption that a fetus is an entity
with a full-fledged right to life. I will argue that in fact this cannot
be established, at least not with the conclusiveness which is essential
to our hopes of convincing those who are skeptical about the morality
of abortion, and that we therefore cannot avoid dealing with the
question of whether or not a fetus really does have the same right
to life as a (more fully developed) human being.
In Section II, I will propose an answer to this question, namely,
that a fetus cannot be considered a member of the moral community,
the set of beings with full and equal moral rights, for the simple
reason that it is not a person, and that it is personhood, and not
genetic humanity, i.e., humanity as defined by Noonan, which is
the basis for membership in this community. I will argue that a
fetus, whatever its stage of development, satisfies none of the basic
criteria of personhood, and is not even enough like a person to be
accorded even some of the same rights on the basis of this re-
semblance. Nor, as we will see, is a fetus's potential personhood
a threat to the morality of abortion, since, whatever the rights of
48 MARY ANNE WARREN

potential people may be, they are invariably overridden in any

conflict with the moral rights of actual people.

I
We turn now to Professor Thomson's case for the claim that
even if a fetus has full moral rights, abortion is still morally per-
missible, at least sometimes, and for some reasons other than to
save the woman's life. Her argument is based upon a clever, but I
think faulty, analogy. She asks us to picture ourselves waking up one
day, in bed with a famous violinist. Imagine that you have been

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kidnapped, and your bloodstream hooked up to that of the violinist,
who happens to have an ailment which will certainly kill him unless he
is permitted to share your kidneys for a period of nine months. No
one else can save him, since you alone have the right type of blood.
He will be unconscious all that time, and you will have to stay in
bed with him, but after the nine months are over he may be un-
plugged, completely cured, that is provided that you have cooperated.
Now then, she continues, what are your obligations in this situa-
tion? The antiabortionist, if he is consistent, will have to say that
you are obligated to stay in bed with the violinist: for all people
have a right to life, and violinists are people, and therefore it would
be murder for you to disconnect yourself from him and let him die
(p. 4 9 ) . But this is outrageous, and so there must be something
wrong with the same argument when it is applied to abortion. It
would certainly be commendable of you to agree to save the
violinist, but it is absurd to suggest that your refusal to do so would
be murder. His right to life does not obligate you to do whatever is
required to keep him alive; nor does it justify anyone else in forcing
you to do so. A law which required you to stay in bed with the
violinist would clearly be an unjust law, since it is no proper func-
tion of the law to force unwilling people to make huge sacrifices
for the sake of other people toward whom they have no such
prior obligation.
Thomson concludes that, if this analogy is an apt one, then we
can grant the antiabortionist his claim that a fetus is a human being,
and still hold that it is at least sometimes the case that a pregnant
woman has the right to refuse to be a Good Samaritan towards the
fetus, i.e., to obtain an abortion. For there is a great gap between
MORAL AND LEGAL STATUS OF ABORTION 49

the claim that x has a right to life, and the claim that y is obligated
to do whatever is necessary to keep x alive, let alone that he ought
to be forced to do so. It is y's duty to keep x alive only if he has
somehow contracted a special obligation to do so; and a woman who
is unwillingly pregnant, e.g., who was raped, has done nothing
which obligates her to make the enormous sacrifice which is necessary
to preserve the conceptus.
This argument is initially quite plausible, and in the extreme
case of pregnancy due to rape it is probably conclusive. Difficulties
arise, however, when we try to specify more exactly the range of

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cases in which abortion is clearly justifiable even on the assumption
that the fetus is human. Professor Thomson considers it a virtue of
her argument that it does not enable us to conclude that abortion is
ahuays permissible. It would, she says, be "indecent" for a woman
in her seventh month to obtain an abortion just to avoid having
to postpone a trip to Europe. On the other hand, her argument
enables us to see that "a sick and desperately frightened schoolgirl
pregnant due to rape may of course choose abortion, and that any law
which rules this out is an insane law" (p. 65). So far, so good; but
what are we to say about the woman who becomes pregnant not
through rape but as a result of her own carelessness, or because of
contraceptive failure, or who gets pregnant intentionally and then
changes her mind about wanting a child? With respect to such cases,
the violinist analogy is of much less use to the defender of the
woman's right to obtain an abortion.
Indeed, the choice of a pregnancy due to rape, as an example
of a case in which abortion is permissible even if a fetus is considered
a human being, is extremely significant; for it is only in the case of
pregnancy due to rape that the woman's situation is adequately
analogous to the violinist case for our intuitions about the latter to
transfer convincingly. The crucial difference between a pregnancy
due to rape and the normal case of an unwanted pregnancy is that
in the normal case we cannot claim that the woman is in no way
responsible for her predicament; she could have remained chaste, or
taken her pills more faithfully, or abstained on dangerous days, and
so on. If, on the other hand, you are kidnapped by strangers, and
hooked up to a strange violinist, then you are free of any shred of
responsibility for the situation, on the basis of which it could be
50 MARY ANNE WARREN

argued that you are obligated to keep the violinist alive. Only when
her pregnancy is due to rape is a woman clearly just as nonrespon-
sible.8
Consequently, there is room for the antiabortionist to argue that
in the normal case of unwanted pregnancy a woman has, by her
own actions, assumed responsibility for the fetus. For if x behaves
in a way which he could have avoided, and which he knows in-
volves, let us say, a 1 percent chance of bringing into existence a
human being, with a right to life, and does so knowing that if this
should happen then that human being will perish unless x does

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certain things to keep him alive, then it is by no means clear that
when it does happen x is free of any obligation to what he knew in
advance would be required to keep that human being alive.
The plausibility of such an argument is enough to show that the
Thomson analogy can provide a clear and persuasive defense of
a woman's right to obtain an abortion only with respect to those
cases in which the woman is in no way responsible for her preg-
nancy, e.g., where it is due to rape. In all other cases, we would al-
most certainly conclude that it was necessary to look carefully at
the particular circumstances in order to determine the extent of the
woman's responsibility, and hence the extent of her obligation. This
is an extremely unsatisfactory outcome, from the viewpoint of the
opponents of restrictive abortion laws, most of whom are convinced
that a woman has a right to obtain an abortion regardless of how
and why she got pregnant.
Of course a supporter of the violinist analogy might point out
that it is absurd to suggest that forgetting her pill one day might
be sufficient to obligate a woman to complete an unwanted pregnancy.
And indeed it is absurd to suggest this. As we will see, the moral
right to obtain an abortion is not in the least dependent upon the
extent to which the woman is responsible for her pregnancy. But
unfortunately, once we allow the assumption that a fetus has full
moral rights, we cannot avoid taking this absurd suggestion seriously.
8. We may safely ignore the fact that she might have avoided getting
raped, e.g., by carrying a gun, since by similar means you might likewise
have avoided getting kidnapped, and in neither case does the victim's failure
to take all possible precautions against a highly unlikely event (as opposed
to reasonable precautions against a rather likely event) mean that he is
morally responsible for what happens.
MORAL AND LEGAL STATUS OF ABORTION 51

Perhaps we can make this point more clear by altering the violinist
story just enough to make it more analogous to a normal unwanted
pregnancy and less to a pregnancy due to rape, and then seeing
whether it is still obvious that you are not obligated to stay in bed
with the fellow.
Suppose, then, that violinists are peculiarly prone to the sort of
illness the only cure for which is the use of someone else's blood-
stream for nine months, and that because of this there has been
formed a society of music lovers who agree that whenever a violinist
is stricken they will draw lots and the loser will, by some means, be

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made the one and only person capable of saving him. Now then,
would you be obligated to cooperate in curing the violinist if you
had voluntarily joined this society, knowing the possible conse-
quences, and then your name had been drawn and you had been
kidnapped? Admittedly, you did not promise ahead of time that
you would, but you did deliberately place yourself in a position in
which it might happen that a human life would be lost if you did
not. Surely this is at least a prima facie reason for supposing that
you have an obligation to stay in bed with the violinist. Suppose
that you had gotten your name drawn deliberately; surely that would
be quite a strong reason for thinking that you had such an obligation.
It might be suggested that there is one important disanalogy be-
tween the modified violinist case and the case of an unwanted preg-
nancy, which makes the woman's responsibility significantly less,
namely, the fact that the fetus comes into existence as the result of
the result of the woman's actions. This fact might give her a right to
refuse to keep it alive, whereas she would not have had this right
had it existed previously, independently, and then as a result of her
actions become dependent upon her for its survival.
My own intuition, however, is that x has no more right to bring
into existence, either deliberately or as a foreseeable result of actions
he could have avoided, a being with full moral rights (y), and then
refuse to do what he knew beforehand would be required to keep
that being alive, than he has to enter into an agreement with an
existing person, whereby he may be called upon to save that person's
life, and then refuse to do so when so called upon. Thus, x's re-
sponsibility for y's existence does not seem to lessen his obligation
to keep y alive, if he is also responsible for y's being in a situation
in which only he can save him.
52 MARY ANNE WARREN

Whether or not this intuition is entirely correct, it brings us

back once again to the conclusion that once we allow the assumption
that a fetus has full moral rights it becomes an extremely complex
and difficult question whether and when abortion is justifiable. Thus
the Thomson analogy cannot help us produce a clear and persuasive
proof of the moral permissibility of abortion. Nor will the opponents
of the restrictive laws thank us for anything less; for their conviction
(for the most part) is that abortion is obviously not a morally serious
and extremely unfortunate, even though sometimes justified act, com-
parable to killing in self-defense or to letting the violinist die, but

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rather is closer to being a morally neutral act, like cutting one's hair.
The basis of this conviction, I believe, is the realization that a
fetus is not a person, and thus does not have a full-fledged right to
life. Perhaps the reason why this claim has been so inadequately
defended is that it seems self-evident to those who accept it. And
so it is, insofar as it follows from what I take to be perfectly obvious
claims about the nature of personhood, and about the proper grounds
for ascribing moral rights, claims which ought, indeed, to be obvious
to both the friends and foes of abortion. Nevertheless, it is worth
examining these claims, and showing how they demonstrate the
moral innocuousness of abortion, since this apparently has not been
adequately done before.

II
The question which we must answer in order to produce a satis-
factory solution to the problem of the moral status of abortion is
this: How are we to define the moral community, the set of beings
with full and equal moral rights, such that we can decide whether
a human fetus is a member of this community or not? What sort of
entity, exactly, has the inalienable rights to life, liberty, and the pur-
suit of happiness? Jefferson attributed these rights to all men, and it
may or may not be fair to suggest that he intended to attribute them
only to men. Perhaps he ought to have attributed them to all human
beings. If so, then we arrive, first, at Noonan's problem of defining
what makes a being human, and, second, at the equally vital question
which Noonan does not consider, namely, What reason is there for
identifying the moral community with the set of all human beings,
in whatever way we have chosen to define that term?
MORAL AND LEGAL STATUS OF ABORTION 53

1. On the Definition of 'Human'

One reason why this vital second question is so frequently over-
looked in the debate over the moral status of abortion is that the
term 'human' has two distinct, but not often distinguished, senses.
This fact results in a slide of meaning, which serves to conceal the
fallaciousness of the traditional argument that since (1) it is wrong
to kill innocent human beings, and (2) fetuses are innocent human
beings, then (3) it is wrong to kill fetuses. For if 'human' is used
in the same sense in both (1) and (2) then, whichever of the two
senses is meant, one of these premises is question-begging. And

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if it is used in two different senses then of course the conclusion
doesn't follow.
Thus, (1) is a self-evident moral truth, 9 and avoids begging
the question about abortion, only if 'human being' is used to mean
something like "a full-fledged member of the moral community."
(It may or may not also be meant to refer exclusively to members of
the species Homo sapiens.) We may call this the moral sense of
'human'. It is not to be confused with what we will call the genetic
sense, i.e., the sense in which any member of the species is a human
being, and no member of any other species could be. If (1) is ac-
ceptable only if the moral sense is intended, (2) is non-question-
begging only if what is intended is the genetic sense.
In "Deciding Who is Human," Noonan argues for the classifica-
tion of fetuses with human beings by pointing to the presence of
the full genetic code, and the potential capacity for rational thought
(p. 135). It is clear that what he needs to show, for his version of
the traditional argument to be valid, is that fetuses are human in the
moral sense, the sense in which it is analytically true that all human
beings have full moral rights. But, in the absence of any argument
showing that whatever is genetically human is also morally human,
and he gives none, nothing more than genetic humanity can be
demonstrated by the presence of the human genetic code. And, as
we will see, the potential capacity for rational thought can at most
show that an entity has the potential for becoming human in the
moral sense.

9. Of course, the principle that it is (always) wrong to kill innocent

human beings is in need of many other modifications, e.g., that it may be
permissible to do so to save a greater number of other innocent human
beings, but we may safely ignore these complications here.
54 MARY ANNE WARREN

2. Defining the Moral Community

Can it be established that genetic humanity is sufficient for moral
humanity? I think that there are very good reasons for not defining
the moral community in this way. I would like to suggest an alterna-
tive way of defining the moral community, which I will argue for
only to the extent of explaining why it is, or should be, self-evident.
The suggestion is simply that the moral community consists of all
and only people, rather than all and only human beings;10 and prob-
ably the best way of demonstrating its self-evidence is by considering
the concept of personhood, to see what sorts of entity are and are

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not persons, and what the decision that a being is or is not a person
implies about its moral rights.
What characteristics entitle an entity to be considered a person?
This is obviously not the place to attempt a complete analysis of the
concept of personhood, but we do not need such a fully adequate
analysis just to determine whether and why a fetus is or isn't a
person. All we need is a rough and approximate list of the most basic
criteria of personhood, and some idea of which, or how many, of
these an entity must satisfy in order to properly be considered a per-
son.
In searching for such criteria, it is useful to look beyond the set
of people with whom we are acquainted, and ask how we would de-
cide whether a totally alien being was a person or not. (For we have
no right to assume that genetic humanity is necessary for person-
hood.) Imagine a space traveler who lands on an unknown planet
and encounters a race of beings utterly unlike any he has ever seen
or heard of. If he wants to be sure of behaving morally toward these
beings, he has to somehow decide whether they are people, and
hence have full moral rights, or whether they are the sort of thing
which he need not feel guilty about treating as, for example, a
source of food.
How should he go about making this decision? If he has some
anthropological background, he might look for such things as re-
ligion, art, and the manufacturing of tools, weapons, or shelters,
since these factors have been used to distinguish our human from
10. From here on, we will use 'human' to mean genetically human, since
the moral sense seems closely connected to, and perhaps derived from, the
assumption that genetic humanity is sufficient for membership in the moral
community.
MORAL AND LEGAL STATUS OF ABORTION 55

our prehuman ancestors, in what seems to be closer to the moral than

the genetic sense of 'human'. And no doubt he would be right to
consider the presence of such factors as good evidence that the alien
beings were people, and morally human. It would, however, be
overly anthropocentric of him to take the absence of these things
as adequate evidence that they were not, since we can imagine
people who have progressed beyond, or evolved without ever de-
veloping, these cultural characteristics.
I suggest that the traits which are most central to the concept
of personhood, or humanity in the moral sense, are, very roughly,

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the following:
(1) consciousness (of objects and events external and/or in-
ternal to the being), and in particular the capacity to feel
pain;
(2) reasoning (the developed capacity to solve new and rela-
tively complex problems);
(3) self-motivated activity (activity which is relatively inde-
pendent of either genetic or direct external control);
(4) the capacity to communicate, by whatever means, messages
of an indefinite variety of types, that is, not just with an
indefinite number of possible contents, but on indefinitely
many possible topics;
(5) the presence of self-concepts, and self-awareness, either in-
dividual or racial, or both.
Admittedly, there are apt to be a great many problems involved
in formulating precise definitions of these criteria, let alone in de-
veloping universally valid behavioral criteria for deciding when they
apply. But I will assume that both we and our explorer know ap-
proximately what (l)-(5) mean, and that he is also able to de-
termine whether or not they apply. How, then, should he use his
findings to decide whether or not the alien beings are people? We
needn't suppose that an entity must have all of these attributes to be
properly considered a person; (1) and (2) alone may well be
sufficient for personhood, and quite probably (1) - (3) are sufficient.
Neither do we need to insist that any one of these criteria is neces-
sary for personhood, although once again (1) and (2) look like
fairly good candidates for necessary conditions, as does (3), if
'activity' is construed so as to include the activity of reasoning.
56 MARY ANNE WARREN

All we need to claim, to demonstrate that a fetus is not a person,

is that any being which satisfies none of (1) - (5) is certainly not a
person. I consider this claim to be so obvious that I think anyone
who denied it, and claimed that a being which satisfied none of (1) -
(5) was a person all the same, would thereby demonstrate that he
had no notion at all of what a person is—perhaps because he had
confused the concept of a person with that of genetic humanity. If
the opponents of abortion were to deny the appropriateness of these
five criteria, I do not know what further arguments would convince
them. We would probably have to admit that our conceptual schemes

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were indeed irreconcilably different, and that our dispute could not
be settled objectively.
I do not expect this to happen, however, since I think that the
concept of a person is one which is very nearly universal (to people),
and that it is common to both proabortionists and antiabortionists,
even though neither group has fully realized the relevance of this
concept to the resolution of their dispute. Furthermore, I think that
on reflection even the antiabortionists ought to agree not only that
( l ) - ( 5 ) are central to the concept of personhood, but also that it
is a part of this concept that all and only people have full moral
rights. The concept of a person is in part a moral concept; once we
have admitted that x is a person we have recognized, even if we have
not agreed to respect, x's right to be treated as a member of the
moral community. It is true that the claim that x is a human being is
more commonly voiced as part of an appeal to treat x decently than
is the claim that x is a person, but this is either because 'human being'
is here used in the sense which implies personhood, or because the
genetic and moral senses of 'human' have been confused.
Now if (1) - (5) are indeed the primary criteria of personhood,
then it is clear that genetic humanity is neither necessary nor sufficient
for establishing that an entity is a person. Some human beings are
not people, and there may well be people who are not human beings.
A man or woman whose consciousness has been permanently ob-
literated but who remains alive is a human being which is no longer
a person; defective human beings, with no appreciable mental ca-
pacity, are not and presumably never will be people; and a fetus is
a human being which is not yet a person, and which therefore can-
not coherently be said to have full moral rights. Citizens of the next
century should be prepared to recognize highly advanced, self-aware
MORAL AND LEGAL STATUS OF ABORTION 57

robots or computers, should such be developed, and intelligent in-

habitants of other worlds, should such be found, as people in the
fullest sense, and to respect their moral rights. But to ascribe full
moral rights to an entity which is not a person is as absurd as to
ascribe moral obligations and responsibilities to such an entity.

3. Fetal Development and the Right to Life

Two problems arise in the application of these suggestions for
the definition of the moral community to the determination of the
precise moral status of a human fetus. Given that the paradigm

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example of a person is a normal adult human being, then (1) How
like this paradigm, in particular how far advanced since conception,
does a human being need to be before it begins to have a right to
life by virtue, not of being fully a person as of yet, but of being like a
person? and (2) To what extent, if any, does the fact that a fetus
has the potential for becoming a person endow it with some of the
same rights? Each of these questions requires some comment.
In answering the first question, we need not attempt a detailed
consideration of the moral rights of organisms which are not de-
veloped enough, aware enough, intelligent enough, etc., to be con-
sidered people, but which resemble people in some respects. It does
seem reasonable to suggest that the more like a person, in the relevant
respects, a being is, the stronger is the case for regarding it as
having a right to life, and indeed the stronger its right to life is.
Thus we ought to take seriously the suggestion that, insofar as "the
human individual develops biologically in a continuous fashion
. . . the rights of a human person might develop in the same way." n
But we must keep in mind that the attributes which are relevant
in determining whether or not an entity is enough like a person to
be regarded as having some of the same moral rights are no different
from those which are relevant to determining whether or not it is
fully a person—i.e., are no different from ( l ) - ( 5 ) — a n d that being
genetically human, or having recognizably human facial and other
physical features, or detectable brain activity, or the capacity to sur-
vive outside the uterus, are simply not among these relevant attri-
butes.

11. Thomas L. Hayes, "A Biological View," Commonweal, 85 (March

17, 1967), 677-78; quoted by Daniel Callahan, in Abortion, Law, Choice,
and Morality (London: Macmillan & Co., 1970).
58 MARY ANNE WARREN

Thus it is clear that even though a seven- or eight-month fetus

has features which make it apt to arouse in us almost the same power-
ful protective instinct as is commonly aroused by a small infant,
nevertheless it is not significantly more personlike than is a very small
embryo. It is somewhat more personlike; it can apparently feel and
respond to pain, and it may even have a rudimentary form of con-
sciousness, insofar as its brain is quite active. Nevertheless, it seems
safe to say that it is not fully conscious, in the way that an infant
of a few months is, and that it cannot reason, or communicate
messages of indefinitely many sorts, does not engage in self-moti-

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vated activity, and has no self-awareness. Thus, in the relevant re-
spects, a fetus, even a fully developed one, is considerably less per-
sonlike than is the average mature mammal, indeed the average fish.
And I think that a rational person must conclude that if the right to
life of a fetus is to be based upon its resemblance to a person, then
it cannot be said to have any more right to life than, let us say, a
newborn guppy (which also seems to be capable of feeling pain),
and that a right of that magnitude could never override a woman's
right to obtain an abortion, at any stage of her pregnancy.
There may, of course, be other arguments in favor of placing
legal limits upon the stage of pregnancy in which an abortion may
be performed. Given the relative safety of the new techniques of
artifically inducing labor during the third trimester, the danger to
the woman's life or health is no longer such an argument. Neither
is the fact that people tend to respond to the thought of abortion in
the later stages of pregnancy with emotional repulsion, since mere
emotional responses cannot take the place of moral reasoning in
determining what ought to be permitted. Nor, finally, is the fre-
quently heard argument that legalizing abortion, especially late
in the pregnancy, may erode the level of respect for human life,
leading, perhaps, to an increase in unjustified euthanasia and other
crimes. For this threat, if it is a threat, can be better met by educating
people to the kinds of moral distinctions which we are making here
than by limiting access to abortion (which limitation may, in its
disregard for the rights of women, be just as damaging to the level
of respect for human rights).
Thus, since the fact that even a fully developed fetus is not
personlike enough to have any significant right to life on the basis
of its personlikeness shows that no legal restrictions upon the stage
MORAL AND LEGAL STATUS OF ABORTION 59

of pregnancy in which an abortion may be performed can be justified

on the grounds that we should protect the rights of the older fetus;
and since there is no other apparent justification for such restrictions,
we may conclude that they are entirely unjustified. Whether or not
it would be indecent (whatever that means) for a woman in her
seventh month to obtain an abortion just to avoid having to post-
pone a trip to Europe, it would not, in itself, be immoral, and there-
fore it ought to be permitted.

4. Potential Personhood and the Right to Life

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We have seen that a fetus does not resemble a person in any way
which can support the claim that it has even some of the same
rights. But what about its potential, the fact that if nurtured and
allowed to develop naturally it will very probably become a person?
Doesn't that alone give it at least some right to life? It is hard to
deny that the fact that an entity is a potential person is a strong
prima facie reason for not destroying it; but we need not conclude
from this that a potential person has a right to life, by virtue of that
potential. It may be that our feeling that it is better, other things
being equal, not to destroy a potential person is better explained by
the fact that potential people are still (felt to be) an invaluable
resource, not to be lightly squandered. Surely, if every speck of dust
were a potential person, we would be much less apt to conclude that
every potential person has a right to become actual.
Still, we do not need to insist that a potential person has no
right to life whatever. There may well be something immoral, and
not just imprudent, about wantonly destroying potential people,
when doing so isn't necessary to protect anyone's rights. But even if
a potential person does have some prima facie right to life, such a
right could not possibly outweigh the right of a woman to obtain an
abortion, since the rights of any actual person invariably outweigh
those of any potential person, whenever the two conflict. Since this
may not be immediately obvious in the case of a human fetus, let
us look at another case.
Suppose that our space explorer falls into the hands of an alien
culture, whose scientists decide to create a few hundred thousand or
more human beings, by breaking his body into its component cells,
and using these to create fully developed human beings, with, of
course, his genetic code. We may imagine that each of these newly
60 MARY ANNE WARREN

created men will have all of the original man's abilities, skills, knowl-
edge, and so on, and also have an individual self-concept, in short
that each of them will be a bona fide (though hardly unique) person.
Imagine that the whole project will take only seconds, and that its
chances of success are extremely high, and that our explorer knows
all of this, and also knows that these people will be treated fairly.
I maintain that in such a situation he would have every right to
escape if he could, and thus to deprive all of these potential people
of their potential lives; for his right to life outweighs all of theirs
together, in spite of the fact that they are all genetically human, all

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innocent, and all have a very high probability of becoming people
very soon, if only he refrains from acting.
Indeed, I think he would have a right to escape even if it were
not his life which the alien scientists planned to take, but only a year
of his freedom, or, indeed, only a day. Nor would he be obligated
to stay if he had gotten captured (thus bringing all these people-
potentials into existence) because of his own carelessness, or even
if he had done so deliberately, knowing the consequences. Regardless
of how he got captured, he is not morally obligated to remain in
captivity for any period of time for the sake of permitting any num-
ber of potential people to come into actuality, so great is the margin
by which one actual person's right to liberty outweighs whatever
right to life even a hundred thousand potential people have. And it
seems reasonable to conclude that the rights of a woman will out-
weigh by a similar margin whatever right to life a fetus may have by
virtue of its potential personhood.
Thus, neither a fetus's resemblance to a person, nor its potential
for becoming a person provides any basis whatever for the claim that
it has any significant right to life. Consequently, a woman's right to
protect her health, happiness, freedom, and even her life,12 by term-
inating an unwanted pregnancy, will always override whatever right
to life it may be appropriate to ascribe to a fetus, even a fully de-
veloped one. And thus, in the absence of any overwhelming social
need for every possible child, the laws which restrict the right to
obtain an abortion, or limit the period of pregnancy during which

12. That is, insofar as the death rate, for the woman, is higher for
childbirth than for early abortion.
MORAL AND LEGAL STATUS OF ABORTION 61
an abortion may be performed, are a wholly unjustified violation of
a woman's most basic moral and constitutional rights.13
MARY ANNE WARREN
SONOMA STATE COLLEGE,
CALIFORNIA

13. My thanks to the following people, who were kind enough to read
and criticize an earlier version of this paper: Herbert Gold, Gene Glass,
Anne Lauterbach, Judith Thomson, Mary Mothersill, and Timothy Binkley.

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