Noonan, Jr. An Almost Absolute Value in History
From: The Morality of Abortion: Legal and Historical Perspectives, ed. John T. Noonan, Jr. (Cambridge; Harvard University Press 1970) pp. 51-59.
Reprinted in Intervention
and Reflection: Basic Issues in Medical Ethics, 5th ed. ed.
Ronald Munson (Belmont; Wadsworth 1996). pp 66-69.
most fundamental question involved in the long history of thought on abortion
is: How do you determine the humanity of a being? To phrase the question that
way is to put in comprehensive humanistic terms what the theologians either
dealt with as an explicitly theological question under the heading of
"ensoulment or dealt with implicitly in their treatment of abortion. The
Christian position art it originated did not depend on a narrow theological or
philosophical concept. It had no relation to theories of infant baptism. It
appealed to no special theory of instantaneous ensoulment. It took the world's
view on ensoulment as that view changed from Aristotle to Zacchia. There was,
indeed, theological influence affecting the theory of ensoulment finally
adopted, and, of course, ensoulment itself was a theological concept, so that
the position was always explained in theological terms. But the theological
notion of ensoulment could easily be translated into humanistic language by
substituting "human" for "rational soul"; the problem of
knowing when a man is a man is common to theology and humanism.
one steps outside the specific categories used by the theologians, the answer
they gave can be analyzed as a refusal to discriminate among human beings on
the basis of their varying potentialities. Once conceived, the being was
recognized as man because he had man's potential. The criterion for humanity,
thus, was simple and all-embracing: if you are conceived by human parents, you
strength of this position may be tested by a review of some of the other
distinctions offered in the contemporary controversy over legalizing abortion.
Perhaps the most popular distinction is in terms of viability. Before an age of
so many months, the fetus is not viable, that is, it cannot be removed from the
mother's womb and live apart from her. To that extent, the life of the fetus is
absolutely dependent on the life of the mother. This dependence is made the
basis of denying recognition to its humanity.
are difficulties with this distinction. One is that the perfection of
artificial incubation may make the fetus viable at any time: it may be removed
and artificially sustained. Experiments with animals already show that such a
procedure is possible. This hypothetical extreme case relates to an actual
difficulty: there is considerable elasticity to the idea of viability. Mere
length of life is not an exact measure. The viability of the fetus depends on
the extent of its anatomical and functional development. The weight and length
of the fetus are better guides to the state of its development than age, but
weight and length vary. Moreover, different racial groups have different ages
at which their fetuses are viable. Some evidence, for example, suggests that
Negro fetuses mature more quickly than white fetuses. If viability is the norm,
the standard would vary with race and with many individual circumstances.
most important objection to this approach is that dependence is not ended by
viability. The fetus is still absolutely dependent on someone's care in order
to continue existence; indeed a child of one or three or even five years of age
is absolutely dependent on another's care for existence; uncared for, the older
fetus or the younger child will die as surely as the early fetus detached from
the mother. The unsubstantial lessening in dependence at viability does not
seem to signify any special acquisition of humanity.
second distinction has been attempted in terms of experience. A being who has
had experience, has lived and suffered, who possesses memories, is more human
than one who has not. Humanity depends on formation by experience. The fetus is
thus "unformed" in the most basic human sense.
distinction is not serviceable for the embryo which is already experiencing and
reacting. The embryo is responsive to touch after eight weeks and at least at
that point is experiencing At an earlier stage the zygote is certainly alive
and responding to its environment. The distinction may also be challenged by
the rare case where aphasia has erased adult memory: has it erased humanity?
More fundamentally, this distinction leaves even the older fetus or the younger
child to be treated as a unformed inhuman thing Finally, it is not clear why
experience as such confers humanity. It could be argued that certain central
experiences such as loving or learning are necessary to make a man human. But
then human beings who have failed to love or to learn might be excluded from
the class called man....
a distinction is sought in social visibility. The fetus is not socially
perceived as human. It cannot communicate with others. Thus, both subjectively
and objectively, it is not a member of society. As moral rules are rules for
the behavior of members of society to each other, they cannot be made for
behavior toward what is not yet a member. Excluded from the society of men, the
fetus is excluded from the humanity of null.
force of the argument from the consequences, this distinction is to be
rejected. It is more subtle than that founded on an appeal to physical
sensation, but it is equally dangerous in its implications. If humanity depends
on social recognition, individuals or whole groups may be dehumanized by being
denied any status in their society. Such a fate is fictionally portrayed in
1984 and has actually been the lot of many men in many societies. In the Roman
empire, for example, condemnation to slavery meant the practical denial of most
human rights; in the Chinese Communist world, landlords have been classified as
enemies of the people and so treated as non-persons by the state. Humanity does
not depend on social recognition, though often the failure of society to
recognize the prisoner, the alien, the heterodox as human has led to the
destruction of human beings. Anyone conceived by a man and a woman is human.
Recognition of this condition by society follows a real event in the objective
order, however imperfect and halting the recognition. Any attempt to limit
humanity to exclude some group runs the risk of furnishing authority and
precedent for excluding other groups in the name of the consciousness or
perception of the controlling group in the society.
may reject the appeal to the humanity of the fetus because he views
"humanity" as a secular view of the soul and because he doubts the
existence of anything real and objective which can be identified as humanity.
One answer to such a philosopher is to ask how he reasons about moral questions
without supposing that there is a sense in which he and the others of whom he
speaks are human. Whatever group is taken as the society which determines who
may be killed is thereby taken as human A second answer is to ask if he does
not believe that there is a right and wrong way of deciding moral questions. If
there is such a difference, experience may be appealed to: to decide who is
human on the basis of the sentiment of a given society has led to consequences
which rational men would characterize as monstrous.
rejection of the attempted distinctions based on viability and visibility,
experience and feeling, may be buttressed by the following considerations.
Moral judgments often rest on distinctions, but if the distinctions are not to
appear arbitrary fiat, they should relate to some real difference in
probabilities. There is a kind of continuity in all life, but the earlier
stages of the elements of human life possess tiny probabilities of development.
Consider for example, the spermatozoa in any normal ejaculate. There are about
200,000,000 in any single ejaculate, of which one has a chance of developing
into a zygote. Consider the oocytes which may become ova: there are 100,000 to
1,000,000 oocytes in a female infant, of which a maximum of 390 are ovulated.
but once spermatozoa and ovum meet and the conceptus is formed, such studies as
have been made show that roughly in only 20 percent of the cases will
spontaneous abortion occur. In other words. the chances are about 4 out of 5
that this new being will develop. At this stage in the life of the being there
is a sharp shift in probabilities, an immense jump in potentialities. To make a
distinction between the rights of spermatozoa and the rights of the fertilized
ovum is to respond to an enormous shift in possibilities. For about twenty days
after conception the egg may split to form twins or combine with another egg to
form a chimera, but the probability of either event happening is very small.
may be asked, What does a change in biological probabilities have to do with
establishing humanity? The argument from probabilities is not aimed at
establishing humanity but at establishing an objective discontinuity which may
be taken into account in moral discourse. As life itself is a matter of
probabilities, as most moral reasoning is an estimate of probabilities, so it
seems in accord with the structure of reality and the nature of moral thought
to found a moral judgment on the change in probabilities at conception. The
appeal to probabilities is the most commonsensical of arguments, to a greater
or smaller degree all of us base our actions on probabilities, and in morals;
as in law, prudence and negligence are often measured by the account one has
taken of the probabilities. If the chance is 200,000,000 to 1 that the movement
in the bushes into which you shoot is a man's, I doubt if many persons would
hold you careless in shooting; but if the chances are 4 out of 5 that the
movement is a human being's, few would acquit you of blame. Would the argument
be different if only one out of ten children conceived came to term? Of course
this argument would be different. This argument is an appeal to probabilities
that actually exist, not to any and all state of affairs which may be imagined.
probabilities as they do exist do not show the humanity of the embryo in the
sense of a demonstration in logic any more than the probabilities of the
movement in the bush being a man demonstrate beyond all doubt that the being is
a man. The appeal is a "buttressing" consideration showing the
plausibility of the standard adopted. The argument focuses on the decisional
factor in any moral judgment and assumes that part of the business of a
moralist is drawing lines. One evidence of the non-arbitrary character of the
line drawn is the difference of probabilities on either side Of it. If a
spermatozoon is destroyed one destroys a being which had a chance of far less
than 1 in 200 million of developing into a reasoning being, possessed of the
genetic code, a heart and other organs, and capable of pain. If a fetus is
destroyed, one destroys a being already possessed of the genetic code, organs,
and sensitivity to pain, and one which had an 80 percent chance of developing
further into a baby outside the womb who, in time, would reason.
positive argument for conception as the decisive moment of humanization is that
at conception the new being receives the genetic code. It is this genetic
information which determines his characteristics, which is the biological
carrier of the possibility of human wisdom, which makes him a self-evolving
being. A being with a human genetic code is man.
review of current controversy over the humanity of the fetus emphasizes what a
fundamental question the theologians resolved in asserting the inviolability of
the fetus. To regard the fetus as possessed of equal rights with other humans
was not, however, to decide every case where abortion might be employed. It did
decide the case where the argument was that the fetus should be aborted for its
own good. To say a being was human was to say it had a destiny to decide for
itself which could not be taken from it by another man's decision. But human
beings with equal rights often come in conflict with each other, and some
decision must be made as whose claims are to prevail. Cases of conflict
involving the fetus are different only in two respects: the total inability of
the fetus to speak for itself and the fact that the right of the fetus regularly
at stake is the right to life itself.
approach taken by the theologians to these conflicts was articulated in terms
of "direct" and "indirect." Again, to look at what they
were doing from outside their categories, they may be said to have been drawing
lines or "balancing values." "Direct" and
"indirect" are spatial metaphors; "line-drawing" is
another. "To weigh" or "to balance" values is a metaphor of
a more complicated mathematical sort hinting at the process which goes on in
moral judgments. All the metaphors suggest that, in the moral judgments made,
comparisons were necessary, that no value completely controlled. The principle
of double effect was no doctrine fallen from heaven, but a method of analysis
appropriate where two relative values were being compared. In Catholic moral
theology, as it developed, life even of the innocent was not taken as an
absolute. Judgments of acts affecting life issued from a process of weighing.
In the weighing, the fetus was always given a value greater than zero, always a
value separate and independent from its parents. This valuation was crucial and
fundamental in all Christian thought on the subject and marked it off from any
approach which considered that only the parents' interests needed to be
with the fetus weighed as human, one interest could be weighed as equal or
superior: that of the mother in her own life. The casuists between 1450 and
1895 were willing to weigh this interest as superior. Since 1895. that interest
was given decisive weight only in the two special cases of the cancerous uterus
and the ectopic pregnancy. In both of these cases the fetus itself had little
chance of survival even if the abortion were not performed. As the balance was
once struck in favor of the mother whenever her life was endangered, it could
be so struck again. The balance reached between 1895 and 1930 attempted
prudentially and pastorally to forestall a multitude of exceptions for
interests less than life.
perception of the humanity of the fetus and the weighing of fetal rights
against other human rights constituted the work of the moral analysis. But what
spirit animated their abstract judgments? For the Christian community it was
the injunction of Scripture to love your neighbor as yourself. The fetus as
human was a neighbor; his life had parity with one's own. The commandment gave
life to what otherwise would have been only rational calculation.
commandment could be put in humanistic as well as theological terms: do not
injure your fellow man without reasons.
In these terms, once the humanity of the fetus is perceived, abortion is
never right except in self-defense. When life must be taken to save life,
reason alone cannot say that a mother must prefer a child's life to her own.
With this exception, now of great rarity, abortion violates the rational
humanist tenet of the equality of human lives.
For Christians the commandment to love had received
a special imprint in that the exemplar proposed of love was the love of the
Lord for his disciples. In the light given by this example, self-sacrifice
carried to the point of death seemed in the extreme situations not without
meaning. In the less extreme cases, preference for one's own interests to the
life of another seemed to express cruelty or selfishness irreconcilable with
the demands of love.