Does the pro-life worldview make sense? : abortion, hell, and violence against abortion doctors 9781138307292, 1138307297, 9781351392204, 1351392204

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Does the pro-life worldview make sense? : abortion, hell, and violence against abortion doctors
 9781138307292, 1138307297, 9781351392204, 1351392204

Table of contents :
Hell --
Hell and abortion --
Forfeiture --
Forfeiture and killing abortion doctors --
Problems with forfeiture --
Forfeiture and abortion --
Consequentialism and abortion.

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Although while reading this monograph I often found myself disagreeing with Professor Kershnar’s arguments, this book is an important contribution to the abortion debate that no pro-­life (or pro-­choice) philosopher, serious about defending her position, should ignore. —­Francis J. Beckwith, Professor of Philosophy & Church-­State Studies, Baylor University and author of Defending Life: A Moral and Legal Case Against Abortion Choice

Does the Pro-­Life Worldview Make Sense?

This book looks at a family of views involving the pro-­life view of abortion and Christianity. These issues are important because major religious branches (for example, Catholicism and some large branches of Evangelicalism) and leading politicians assert, or are committed to, the following: (a) it is permissible to prevent some people from going to hell, (b) abortion prevents some people from going to hell, and (c) abortion is wrong. They also assert, or are committed to, the following: (d) it is permissible to use defensive violence to prevent people from killing innocents, (e) doctors who perform abortions kill innocents, and (f) it is wrong to use defensive violence against doctors who perform abortions. Stephen Kershnar argues that these and other principles are inconsistent. Along the way, he explores the ways in which theories of hell, right forfeiture, and good consequences relate to each other and the above inconsistencies. Stephen Kershnar is a distinguished teaching professor in the philosophy department at the State University of New York at Fredonia and an attorney. He is the author of seven books, including Gratitude toward Veterans: A Philosophical Explanation of Why Americans Should Not Be Very Grateful to Veterans (2014).

Routledge Research in Applied Ethics

1 Vulnerability, Autonomy and Applied Ethics Edited by Christine Straehle 2 Refugees and the Ethics of Forced Displacement Serena Parekh 3 Procreation, Parenthood, and Education Rights Ethical and Philosophical Issues Edited by Jaime Ahlberg and Michael Chobli 4 The Ethics of Climate Engineering Solar Radiation Management and Non-­Ideal Justice Toby Svoboda 5 Corporal Punishment A Philosophical Assessment Patrick Lenta 6 Hobbesian Applied Ethics and Public Policy Edited by Shane D. Courtland 7 Does the Pro-­Life Worldview Make Sense? Abortion, Hell, and Violence Against Abortion Doctors Stephen Kershnar

Does the Pro-­Life Worldview Make Sense? Abortion, Hell, and Violence Against Abortion Doctors Stephen Kershnar

First published 2018 by Routledge 711 Third Avenue, New York, NY 10017 and by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Routledge is an imprint of the Taylor & Francis Group, an informa business © 2018 Taylor & Francis The right of Stephen Kershnar to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. Library of Congress Cataloging-­in-­Publication Data Names: Kershnar, Stephen, author. Title: Does the pro-life worldview make sense? : abortion, hell, and   violence against abortion doctors / Stephen Kershnar. Description: 1 [edition]. | New York : Routledge, 2017. |   Series: Routledge research in applied ethics ; 7 |   Includes bibliographical references and index. Identifiers: LCCN 2017031369 | ISBN 9781138307292   (hardback : alk. paper) Subjects: LCSH: Abortion—Moral and ethical aspects. |   Abortion—Religious aspects. Classification: LCC HQ767.15 .K47 2017 | DDC 179.7/6—dc23 LC record available at https://lccn.loc.gov/2017031369 ISBN: 978-­1-­138-­30729-­2 (hbk) ISBN: 978-­1-­315-­14226-­5 (ebk) Typeset in Sabon by Apex CoVantage, LLC

I dedicate this book to my father, Lawrence Kershnar, and dog, Mitzi: The ideas in this book have their origin in our Roxbury conversations.

Contents

Acknowledgments

xi

Introduction1 Section I

Hell

15

1 Hell

17

2 Hell and Abortion

43

Section II

Abortion Doctors

65

3 Forfeiture

67

4 Forfeiture and Killing Abortion Doctors

85

5 Problems with Forfeiture

105

Section III

Abortion

121

6 Forfeiture and Abortion

123

7 Consequentialism and Abortion

153

Bibliography Index

175 189

Acknowledgments

In writing this book, I am grateful to my mother, Arlene Kershnar; brother, Eric Kershnar; and sister, Sari Reikes. They are an endless source of ideas, humor, football competition, and do serious damage at sushi buffets. I love my time with them and their families. We have spent many momentous days (Super Bowls, holidays, birthdays, weddings, Bar Mitzvahs, etc.) and some hard days (funerals, unveilings, memorial services, etc.) together. They are ever present in my life and very much loved. We remember my grandparents and eating bagels, coconuts, and orange juice at Jade Winds; watching sports downstairs near the wood burning stove; holidays and camping trips with the Haberles; hours lost to our lives at Temple Shalom; Thanksgiving at Arlene and Amy Mehlman’s houses; hard marches through the Roxbury Land Trust properties; spring runs in the Roxbury road races’ Christmas hockey at the Gunnery; visiting Aunt Rose; Uncle Gus’s stories, and so on. I am particularly grateful to friends and colleagues who have provided me with incredibly interesting and insightful feedback on this book. My good friend Neil Feit, brother Eric Kershnar, and brother-­in-­law David Hershenov read and gave me comments on every chapter or major idea. Many of the ideas in it were hatched during our discussions, often while watching football, speaking on the phone, attending family events, and during discussions at the Buffalo reading groups (PANTC and Blameless Buffalo). They should be blamed for most, if not all, of the ideas in this book. Philosophers extraordinaire Jim Delaney, John Keller, Phil Reed, and Dale Tuggy are blameworthy for any ideas that Feit, Kershnar, and Hershenov are not blameworthy for. If you have any problem with this book, take it up with them. Two friends, George Schedler and Thad Metz, have been an invaluable source of comments, criticisms, and ideas. I am fortunate to have such generous and intelligent people with whom to exchange ideas. I am also grateful to Robert Audi, Michael Levin, Larry Lombard, and especially the late Louis P. Pojman for the way in which they encouraged me and gave my ideas careful consideration. I am very lucky that my path has crossed such generous and gifted scholars.

xii Acknowledgments For feedback on these chapters, I am very grateful to the extremely helpful comments and criticisms of Ray Belliotti, Harvey Berman, Geert Craenen, Andrew Cullison, Rose Hershenov, Bob Kelly, Pete Koch, David Limbaugh, George Schedler, and Yuichi Minemura. I am also grateful to attendees of lectures on these chapters at the PANTC meeting and conference, Society of Christian Philosophers meeting at Niagara University, the State University of New York at Buffalo, and the State University of New York at Fredonia. Francis Beckwith gave superb comments and criticisms of the book. Many of the most interesting objections come from him. Alice Hodge’s comments and editing were invaluable for this project. Without her this book never would have been completed. One also has to admire her exquisite taste in reptiles. I am especially grateful to my wife (Maryclaire Koch). She makes my life happy and meaningful. Part of Chapter 1 appeared in Stephen Kershnar, “The Injustice of Hell,” International Journal for Philosophy of Religion 58 (2005): 103–123. Please note that most of Chapter 2 appeared in Stephen Kershnar, “Hell, Threshold Deontology, and Abortion,” Philosophia Christi 12 (2010): 115– 136; and much of Chapter 4 appeared in Stephen Kershnar, “Fetuses Are Like Rapists: A Judith-­Jarvis-­Thomson-­Inspired Argument on Abortion,” Reason Papers 37 (2015): 88–109.

Introduction

This book looks at a family of views involving the pro-­life view of abortion and Christianity. These issues are important because major religious branches (for example, Catholicism and some large branches of Evangelicalism) and leading politicians assert, or are committed to, the following: (a) it is permissible to prevent some people from going to hell, (b) abortion prevents some people from going to hell, and (c) abortion is wrong. They also assert, or are committed to, the following: (d) it is permissible to use defensive violence to prevent people from killing innocents, (e) doctors who perform abortions kill innocents, and (f) it is wrong to use defensive violence against doctors who perform abortions. In this book, I argue that these and other principles are inconsistent.

Part One: Opponents It is worth considering the religious positions on abortion. This is useful because they serve as real life opponents for many of the arguments discussed in the book. Note that some of these denominations hold that abortion is wrong, that some people go to hell, that aborted fetuses do not go to hell or are not known to do so, that it is wrong to shoot abortion doctors, and that permissible actions must respect people’s moral rights rather than merely maximizing the good. This book argues that some of these positions conflict with other ones. It is also useful to note that members of the religion disagree with the religions’ positions to a surprising degree. For example, it is worth distinguishing between the Catholic position on abortion and the position of most Catholic women on abortion. It would be an interesting question whether the arguments in this book, implicitly grasped by the denominations’ members, explain the difference. I take no position on whether they do, merely note that the question is one of interest. Many Christian denominations, but not all, oppose abortion. Neither the New nor Old Testament makes explicit judgment of it. Some academics have claimed that Christians have held different official positions over the

2 Introduction years.1 In recent history, Christian arguments, at least in part, motivated U.S. laws against abortion. The Catholic Church has opposed abortion since the first century. It currently holds that every human person has a right to life and that the right begins at fertilization.2 The church automatically excommunicates a woman who procures an abortion, although this does not apply if the abortion is in response to a direct threat to her life.3 The National Conference of Catholic Bishops, incorporated in 1973, tried to pass a constitutional amendment to prohibit abortion in the U.S.4 In some cases, Catholic bishops threatened to withhold communion for politicians supporting abortion. In other cases, they asked such politicians to refrain from receiving communion. Until 1869, the Catholic Church automatically excommunicated a woman for having an abortion at the point of ensoulment. Following Augustine and Thomas Aquinas, it held that this point occurs after conception. In 1869, it adopted a new position. It held that ensoulment occurs at conception and thus held any abortion not aiming to save the woman’s life merited excommunication.5 Rank-­and-­file Catholics often disagree with the church. A 2008 survey found that 65% of American Catholics were pro-­choice.6 The same survey found that 58% of American Catholic women did not think they had to follow their bishop’s teaching on abortion. Only 22% of U.S. Catholics thought abortion should be illegal in all cases. A 2013 Pew Research survey found that 53% of white Catholics in the U.S. considered abortion morally wrong.7 In contrast, only 25% of religiously unaffiliated adults thought it was wrong. Worldwide, the Alan Guttmacher Institute reports that in countries where the dominant religion is Catholicism, abortions are higher per capita than the worldwide average. The Mormon Church opposes elective abortion because it violates the sanctity of life. Its reasoning is that the spirit enters the body before birth.8 It does not, however, have a clear position on when the spirit enters the body (that is, when life begins). It does not rule out abortions in response to rape or incest, a severe threat to the life or health of the mother, or when the fetus has severe defects that will not allow it to survive beyond birth. In general, conservative and African-­American Protestants are pro-­life and mainline Protestants are pro-­choice. In general, various fundamentalist and evangelical Protestant groups oppose abortion (for example, conservative evangelical, Southern Baptist, and Pentecostal movements), but do not have a shared doctrine regarding it. They differ on abortions intended to save the life of the woman or in response to rape or incest. Fundamentalist and evangelical Protestants are more likely to agree with their church leaders than are Catholics. A 2013 Pew Research survey found that 58% of black Protestants, 75% of white evangelical Protestants, and 38% of mainline Protestants said it was morally wrong to have an abortion.9 In the U.S. in the 2000s, Protestant women were 29% less likely than Catholic women to have an abortion.

Introduction  3 Table 0.1 U.S. Group

Index Number

Average women Catholic women Jewish women Non-Judeo-Christian religious women Protestant women Women with no organized religion

1.0 1.01 1.08 0.78 0.69 4.02

In terms of women having abortions, a 2011 Guttmacher Institute study found that roughly two out of three women having an abortion were Christian.10 Of all U.S. abortions that year, the study found that 37% were Protestant, and 28% were Catholic. A 2011 Roper Center for Public Opinion Research study found the number of abortions in the U.S. per woman per group compared to the general population.11 Here 1.0 is equal to the probability in a population’s average and other numbers are percentages of this baseline. Table 0.1 shows the findings. The Jewish position is mixed. While it is not entirely clear what the Orthodox Jewish position is on abortion, one interpretation of it is that it is morally permissible only when necessary to save a woman’s life.12 Conservative Judaism takes a moderate position holding that it is permissible when the pregnancy might cause the woman severe physical or psychological harm or when the fetus is severely defective.13 Reform Judaism has a similar position to the conservative position, although it allows still other conditions under which abortion is permissible.14 The conservative and reform positions have backed pro-­choice political movements. Individual Jews tend to be pro-­choice. One survey found that 88% are pro-­choice.15

Part Two: Three Issues Following is a brief discussion of three important issues that illustrate the key concepts in the book. The topic matters because we want to know the truth about the underlying issues. It also matters because if many people, including government officials, believe in a set of theories that are false and inconsistent with one another, this is likely to lead to the adoption of mistaken policies. Issue 1: The Pro-­Life Position and Hell Consider the intersection of hell and abortion. Many of the leading pro-­life groups are Christians. The pro-­life position generally holds that abortion is wrong and should be illegal. One of the leading pro-­life groups, Operation

4 Introduction Rescue, is a Christian-­activist group. The Catholic Church holds that abortion is a grave sin and excommunicates people who directly participate in bringing one about, assuming they knew of the penalty when they acted. Before he was the pope, Cardinal John Ratzinger wrote that priests should tell politicians who support abortion that they should avoid taking communion or risk being denied the Eucharist. Other evangelical and fundamentalist Christian organizations oppose abortion, as does the Mormon Church. These groups’ influence has led the U.S. Republican Party to call for a ban on abortion. Traditional Christianity also accepts that some people go to heaven and some go to hell or are annihilated (cease to exist). The Bible repeatedly states that there is post-­earthly existence and many will not be saved. Consider Matthew 13:49–50, 25:41, 25:46; Luke 13:23; and Matthew 7:13–14. The Catholic Church and some types of Protestantism explicitly accept that hell exists and is a bad place to reside. The Catholic Church recently issued a report, approved by Pope Benedict, which expressed hope that unbaptized babies will be sent to heaven. The church is committed to a similar conclusion about fetuses because both fetuses and babies are created in the image and likeness of God and hence are sacred. This position makes a lot of sense. It is hard to believe that an all-­loving God would send an innocent child to hell or annihilate him or her. Compare this to the doctrine which holds that because unbaptized infants and fetuses are tainted by original sin, if they die unbaptized God sends them to hell. Just imagine the mean-­spirited religious leader who would tell the heartbroken parents who recently lost a newborn to a drunk driving accident that their child is wailing in hell and will do so for all eternity because they did not move quickly enough to have him or her baptized. The problem arises when we combine the pro-­life position with the preceding view on heaven and hell. If traditional Christianity is true, then a person who aborts a fetus guarantees that it goes to heaven. If someone guarantees that a fetus goes to heaven, then she does a wonderful thing for it. If someone does a wonderful thing for a fetus, then her action is permissible. Hence, if traditional Christianity is true, then abortion is permissible. As a result, on pain of contradiction, traditional Christians cannot be pro-­life. Even if we assume that fetuses have rights, specifically human rights, and that abortion infringes on them, the infringement is still permissible. After all, we often think that it is okay to infringe on someone’s right when doing so prevents a tragedy. Consider the following. There is a car accident, and a three-­year-­old black girl’s arm is cut off. If reattachment surgery doesn’t begin soon, she will permanently lose the arm. A bystander knows the only way to get the child to the hospital in time is to hotwire a parked car. The bystander knows the car owner and, in particular, that he is a member of the Aryan Brotherhood, a vicious racist organization, and would never consent to allowing his car to be used to help the girl. Intuitively, it seems

Introduction  5 permissible to hotwire the car. A similar thing permits us to break into a storefront and steal a syringe of insulin if it is necessary to save a diabetic child’s life. In short, it’s okay to infringe on someone’s right when doing so prevents a horrific tragedy. Note that the worst tragedy that can befall someone is spending eternity in hell. One objection here is that abortion is not similar to the preceding cases because it is not clear that the aborted fetus would have gone to hell. The fetus might have grown up and freely chosen Christianity. Still, we often praise people who act to reduce risk. If an emergency medical technician gives lifesaving shocks to a woman whose heart has stopped and thereby reduces her chance of permanent brain damage from 99% to 1%, we think that he did the right thing even though there is some chance the shocks weren’t necessary to prevent brain damage. A second objection is that because our bodies are on loan from God, we have no right to take others’ lives, and this includes unborn children. One problem with this is that this would prohibit self-­defense and defense-­of-­ others killings (for example, consider the U.S. military). A second problem is that God must have a reason to prohibit persons from sending their unborn children to heaven; otherwise, his prohibition is arbitrary. The fact that God owns their bodies is irrelevant. A third objection is that if traditional Christianity is true, then sending persons to hell is morally permissible. If God may send people to hell, then he must have a reason not to send everyone to heaven. The objection continues, if God has a reason not to send everyone to heaven, then so do women and physicians. Hence, they should not try to send fetuses to heaven. This objection fails. Just because God may not do all he can to ensure human beings go to heaven, the same is not true for human beings. After all, God has the power to change individual’s thoughts, and human beings do not. That is, when he acts, he interferes with human freedom in a way that differs from how human beings interfere with each other. The concern for freedom might explain why it would be wrong for God to kill monsters like Mao Tse-­tung, Joseph Stalin, or Adolf Hitler, but why the same is not true for human beings trying to stop them. Issue 2: The Pro-­Life Position and Assassinating Abortion Doctors Consider the intersection of the pro-­life position and assassinating abortion doctors. A couple of years ago, the Center for Medical Progress released secretly recorded videos of Planned Parenthood officials that appear to capture a criminal conspiracy by the organization to sell fetal body parts. Several states responded by cutting Planned Parenthood’s funding. Congress tried to defund it, but the attempt died in the Senate. While embarrassing, and perhaps criminal, the videos are less intellectually troubling than the pro-­lifers’ implicit commitment to violence.

6 Introduction There is a history of violence by pro-­life forces against abortion providers. The New York Times reports that between 1978 and 1993, there were more than one hundred bombings and arsons of clinics, more than three hundred invasions, and more than four hundred incidents of vandalism. Pro-­life violence has also resulted in eight people being killed, including four doctors, two clinic employees, a security guard, and a clinic escort. Two examples are worth considering. On October 23, 1998, Dr. Barnett Slepian was shot to death with a high-­powered rifle at his home in Amherst, New York. On May 31, 2009, Scott Roeder shot and killed Dr. George Tiller as the latter served as an usher at a Wichita, Kansas church. The leading pro-­ life groups publicly reject this violence. These numbers do not include the 2015 violence in Colorado. The problem is that if the pro-­life position is true, then the previously mentioned killings and some of the other violence are justified. The argument is straightforward. Lethal violence may sometimes be used to defend innocent parties and, if the pro-­life position is true, then, sometimes, assassinating abortion doctors is an instance of such defense. By analogy, consider the following case. A Nazi worker drives his truck to his job at the death camp, Treblinka. His job is to drop Zyklon B into the shower-­like rooms that are used to kill Jews. A Jewish resistance group kills the worker with an anti-­tank round when he is a mile away from the camp. They do so in order to save Jewish lives. Under German law, assassinating death camp workers is illegal and punishable by death. It intuitively seems the resistance group can permissibly assassinate the worker. On the pro-­life position, the Nazi worker is analogous to an abortion doctor, the Jews who would otherwise be killed by the worker are analogous to fetuses, and the Jewish resistance is analogous to the pro-­life resistance. To deny this analogy, the pro-­life opponent of assassinating abortion doctors has to deny that the Nazi worker may be assassinated or show that, on pro-­life assumptions, assassinating him is different from assassinating an abortion doctor. The pro-­life position blocks both moves. The pro-­life argument for assassinating abortion doctors makes the following assumption: Abortion is as wrong as killing adult people and is wrong for the same reason. On different accounts, abortion is wrong because it kills an innocent, infringes on the fetus’s rights, violates the Golden Rule, conflicts with God’s prohibition on such killing, deprives the fetus of a valuable future, or brutalizes the killer. The reason one of these wrong-­making features is present depends on further assumptions concerning whether the fetus is a person or human being, is loved by God, has a valuable future, and so on. The pro-­life commitment to violence can be seen in that on almost every pro-­life view, killing a fetus is as wrong as killing a newborn. If defending a newborn’s life warrants lethal force, then so does killing a fetus. This can be seen in the preceding case in that the resistance may kill the Nazi worker if his job consisted of gassing Jewish newborns.

Introduction  7 One objector might claim that assassinating doctors is illegal. This objection is weak because morality and legality are distinct. Slave owning was immoral even though it was legal. Helping slaves escape was moral even though it was illegal. A second objector might argue that it is always wrong to kill someone, intentionally kill someone, commit violence, intentionally commit violence, and so on. If this is a commitment of the pro-­life position, then it is rather implausible. This would rule out defensive war and lethal protection of children being slaughtered. For example, the Catholic Church is pro-­life but holds that some wars are permissible. A third objector might claim that pro-­life assassination is justified only if the benefit of the killing exceeds its cost. From the pro-­life perspective this is likely the case because assassinating and harassing those at abortion clinics reduce their frequency of abortions, and each additional life saved is likely to add a happy person to the world. It is also reasonable to think that having children will even enhance the lives of mothers who are prevented from getting an abortion. This rests on psychological studies of the effects of motherhood, including unwanted motherhood. If we have to trade off a fetus for an abortion doctor, then, in terms of costs and benefits, the trade-­off is worthwhile. The happiness the fetus gains by not being killed likely outweighs the happiness lost by the doctor and his grieving family members. This is because, on average, the fetus has more years of life ahead of her than does the doctor. This fetus’s being more important is further evidenced by the fact that, in many cases, the abortion doctor completed some or all of his reproduction, and the fetus has not yet reproduced. Also, because, on average, aborted fetuses have demographic features (for example, black and poor) that suggest that they will have more children than abortion doctors and will reproduce at a younger age (thus, shortening reproductive cycles), there is even more reason to believe that in terms of producing happy people, a fetus’s life is more valuable than that of an abortion doctor. In short, consistency requires that those who accept the pro-­life position also accept assassinating abortion doctors. The reason almost no one believes that it’s okay to kill abortion doctors is that they really don’t think that a fetus has a right to be in the woman’s body when she doesn’t want it there. Issue 3: Consequentialism and the Pro-­Life Position Consequentialism is the theory that an action is right when, and only when, it brings about the best results. If this theory is true, then people ought to do whatever produces more happiness and, thereby, makes the world a better place. This might include sending food to starving people in Africa, donating a kidney to a stranger, or volunteering at a local soup kitchen. The problem for pro-­lifers, especially Christian ones, is that consequentialism alone supports the pro-­life conclusion, and it conflicts with their other doctrines.

8 Introduction Consequentialism entails that abortion is wrong because abortion kills individuals who would otherwise become happy people and thereby make the world better. Their additional happiness is much greater than the suffering of women carrying fetuses they didn’t want and, in the absence of adoption, raising unwanted children. If consequentialism is true, the law should therefore aim to reduce the number of abortions and do so by criminalizing it. One objection to this theory is that, if it were true, what makes abortion wrong (namely, the loss of happy people) would make it wrong to use contraception. This is absurd. If consequentialism were true, pregnancy-­ inducing rape would be permissible. This is because the additional life produces more happiness than is lost by the rape victim. This conclusion shows that consequentialism is ridiculous. The problem with this objection is that it incorrectly assesses the results of contraception and pregnancy-­inducing rape. Consider the legal analogue to the moral theories mentioned earlier. The violence that would accompany legally permitted rape would be unbelievably costly in terms of lives ruined and destroyed. The resulting black market in violence prevention and retaliatory violence would be incredibly costly. The same is true for the black market in contraception. It is just not true that contraception and refraining from rape make the world worse. A second objection is that people do enough good when they have wanted, but not unwanted, children. Consequentialism does not require people to be moral saints. To see why this objection fails, note that in the United States, the majority of women who have an abortion are already raising children. Given that they know how to raise a child and often can afford to raise an additional child, especially with welfare, the burden of carrying an unwanted fetus or raising an unwanted child is not a saint-­ like demand. Nor is it greater than what was demanded of women in past centuries when abortion was not available and women frequently raised unwanted children. A third objection is that abortion removes people who will do harm to others (consider, for example, crime and welfare). Economists John Donahue and Steven Levitt report that because the fetuses will grow up in conditions tending to cause criminality, abortion significantly lowers the crime rate. The reason for these conditions is that abortion is far more frequent in teenagers, unmarried women, and the economically disadvantaged than in other populations, and children born to mothers in these circumstances are more likely to be involved in crime. A similar thing is true with regard to welfare. One response here is that, on average, people who would have been aborted have lives that add more value to the world than is lost by the crimes they would do or their economic drain on others. In economic terms, the value of a typical life is $7 to $10 million dollars, and it is unlikely that a person who would have been aborted cost other people that much. This is true even given the greater likelihood that an aborted fetus would have become a criminal or been on welfare when compared to fetuses not

Introduction  9 aborted. The crime-­and welfare-­related costs are offset by the fact that people who would have been aborted would have had, on average, their own children and that they would have valuable lives. The reason that Christians and other pro-­ lifers cannot adopt consequentialism is because it conflicts with their other doctrines. For example, Christians do not believe that it is okay to murder, steal, or have adulterous affairs when doing so makes the world a better place. Consequentialists believe this. To see this conflict, consider a businessman, Al, who has a wife and kids back in New Jersey. He goes to Hawaii on business and meets a server, Peaches. If Al and Peaches were to have an affair, they would greatly enjoy it, and it would not make their or anyone else’s lives go worse. Sex that makes at least one person’s life go better, and no one’s life go worse makes the world better. Hence, if consequentialism is true, Al and Peaches may have an affair. In fact, if it is true, they ought to do so. Christians do not believe this. Given their acceptance of hell, the Ten Commandments, the Doctrine of Double Effect, and so on, it is clear they do not think that the only thing that makes an act right or wrong is whether it makes the world better. Rather, they think that the ends do not always justify the means. Nor can most pro-­lifers accept consequentialism. If consequentialism were true, then it is permissible, in fact it is obligatory, to abort a fetus when the resulting person would make the world worse. This might occur, for example, if the resulting person would use so many medical resources that the cost of his life is greater than its benefit (including its benefit to him). Pro-­lifers do not, however, think this. Thus, if the pro-­life position is true, then consequentialism is true. If consequentialism is true, then the pro-­life worldview is false. Hence, if the pro-­ life position is true, then the pro-­life worldview is false. This is a problem.

Part Three: Overview The book focuses on the pro-­life worldview. In particular, it focuses on the intersection of hell and abortion and the intersection of when it is permissible to kill someone and the moral status of abortion and killing abortion doctors. Here are the chapter summaries. Chapter 1: Hell In Chapter 1, I discuss whether God would send someone to hell. I argue that he would not. This is a problem for the Christian pro-­life worldview in so far as it accepts that some people are sent to hell. Many pro-­lifers believe this to be true. Consider, for example, different lines of Christianity. My argument rests on the claim that if people go to hell, then God sends them as punishment. If God sends someone to hell as punishment, then an infinite punishment must be just. I then argue that human beings do not

10 Introduction warrant an infinite punishment. They do not do not have an infinitely bad character or do an infinitely blameworthy act or set of acts. I then argue that because there is no reason to override the demands of justice, God would not impose such a punishment. I also briefly argue that he cannot impose such a punishment. Two other theories of post-­earthly existence, annihilation and escapism, are also false. Hence, I conclude that God does not send anyone to hell. Chapter 2: Hell and Abortion In Chapter 2, I assume God sends some individuals to hell and address how this affects the pro-­life view. Specifically, I argue that traditional Christianity conflicts with the pro-­life view. The conflict occurs because abortion ensures that fetuses go to heaven, and in general, it is permissible to ensure individuals go to heaven. Traditional Christianity accepts the following: Some persons go to heaven, and some persons go to hell or are annihilated. My strategy is to establish that a person who brings about an abortion guarantees that the aborted individual goes to heaven and that it is morally permissible to guarantee someone goes to heaven. It follows that if traditional Christianity is true, then abortion is morally permissible. But if abortion is morally permissible, then the pro-­life position is wrong. Hence, traditional Christianity entails the falsity of the pro-­ life position. If we adopt universalist, escapist, or positivist theories of hell, then the picture with regard to abortion gets murkier. Chapter 3: Forfeiture In Chapter 3, I argue that forfeiture justifies killing and that this justification is independent of whether God exists or whether Christianity is true. This forms the basis of the next two chapters. They look at the moral status of killing physicians who perform abortions and abortion itself. Specifically, I argue that forfeiture explains when it is morally permissible to kill people. It entails that, except in the case where killing is necessary to avoid a catastrophe, only those who forfeit their rights are liable to be killed. My argument rests on the claim that forfeiture theory explains when individual and state violence is justified better than other theories. My argument rests on a number of assumptions. First, individuals alone have rights and are owed duties. Second, outside of state action (for example, war), if one individual wrongly kills a second, then the first fails to satisfy a duty he owes to someone. Third, if one person fails to satisfy a duty owed the second, then the first infringes on the second’s right. Fourth, state killing is morally similar to individuals’ killings of others. Fifth, if the first four assumptions are true, then the best theory of individual and state killing focuses on when rights are lost or defeated. Forfeiture theory alone does so.

Introduction  11 Chapter 4: Forfeiture and Killing Abortion Doctors In Chapter 4, I assume the pro-­life position is true, and apply forfeiture theory to the killing of doctors who perform abortions. I begin by noting that there is a history of violence by pro-­life forces against abortion providers. The New York Times reports that between 1978 and 1993, there were over one hundred bombings and arsons of clinics, more than three hundred invasions, and over four hundred vandalism incidents. Pro-­life violence has also resulted in eight people being killed, including four doctors. After noting this history, I argue that if the pro-­life position is true, then it is permissible to assassinate abortion doctors. My argument rests on two premises. First, lethal violence may sometimes be used to defend innocent parties. Second, if the pro-­life position is true, then, sometimes, assassinating abortion doctors is an instance of such defense. My conclusion applies the actual assassinations of abortion doctors, such as those mentioned earlier. My conclusion here is a conditional. If the pro-­life position is true, then such violence is permissible. If violence against abortion doctors is wrong, then it follows that the pro-­life position is false. Chapter 5: Problems With Forfeiture In this chapter, I address the seemingly fatal objections to forfeiture theory. This is the theory that was the focus of Chapters 3 and 4. First, there are issues regarding how rights can be forfeited when what justifies them (for example, the right holder’s autonomy or interest) is still present. Second, forfeiture has to explain a lot. Specifically, it has to explain why violence is limited by requirements, including, depending on the account, necessity, imminence, proportionality, and discrimination. This is a lot of explanatory work. Third, forfeiture theory asserts that forfeiture occurs following an attempted attack, rather than a completed one, but it is unclear why an attempt by itself is an injustice at all, let alone one that warrants lethal violence. Fourth, there are puzzle cases that forfeiture has trouble handling, such as the issue of what happens to the rights of two qualitatively identical people who simultaneously launch unprovoked attacks against the other. In that case, you have an unstable scenario similar to a liar paradox. Each person either has or lacks the right to defend against the other. If one attacker has the right, then the other does not and vice versa. Yet the two are qualitatively identical, so it is impossible for one to have the right if the other does not. Chapter 6: Forfeiture and Abortion In this chapter, I apply the forfeiture theory to abortion. I argue that the theory conflicts with the pro-­life position. Specifically, I argue that if an

12 Introduction unwanted fetus has rights (and I doubt it does), it forfeits them because it trespasses on a woman’s body. The chapter argues that abortion is just because it does not infringe on anyone’s right. This rests on three assumptions. First, the fetus has no right to be inside the woman. Second, if the fetus has no right to be inside the woman, then it may be removed with proportionate force. Third, in abortion, the woman uses proportionate force. The third argument rests on the notion that when the fetus’s presence is unconsented to, the fetus’s infringement on the woman’s right is as severe as rape and rape warrants lethal force. The chapter then considered two objections: Abortion is disproportionate because trespass does not warrant lethal force, and abortion is disproportionate because the fetus is innocent and thus unlike a rapist. These objections failed. The chapter then argues that abortion is also morally permissible because pregnant women do not fail to satisfy the duty to save. One reason for this is that there is no such duty. A second reason is that even if there is such a duty, it does not make abortion wrong because the duty does not apply when the cost is too high. Chapter 7: Consequentialism and Abortion In Chapter 7, I address whether consequentialism supports the pro-­life view. I argue that it does. This result helps the pro-­life position, though, only if consequentialism is true. Consequentialism is the theory that the right maximizes the good. In this chapter, I argue that consequentialism is true and that if consequentialism is true, then, on average, abortion is wrong. The second part of this rests on two assumptions. First, if consequentialism is true, then an act is right only if it maximizes or satisfices the totalist, impersonal, and possibilist good. Second, on average, abortion does not maximize or satisfice the totalist, impersonal, and possibilist good. I next argue that if, on average, abortion is wrong, then it should be illegal. This also rests on two assumptions. First, if a law would maximize the good, then the state should create and enforce it. Second, a law prohibiting abortion maximizes the good. The second assumption rests on the following: Prohibiting abortion would significantly cut back its frequency, cutting back the frequency of abortion would result in more individuals being created or, perhaps, not destroyed, and creating or not destroying more individuals would lead to more overall well-­being and thus more good.

Notes   1 See Kristin Luker, Politics and the Politics of Motherhood (Berkeley: University of California Press, 1985).   2 See Catechism of the Catholic Church, 2270.

Introduction  13   3 See Fr. William Saunders, “Excommunication for Those Who Procure Abortion,” The Arlington Catholic Herald, September 19, 2016, www.catholicherald. com/Faith/Your_Faith/Straight_Answers/Straight_Answers__Automatic_ Excommunication_for_Those_Who_Procure_Abortion/.   4 See Suzanne Staggenborg, The Pro-­Choice Movement: Organization and Activism in the Abortion Conflict (New York: Oxford University Press, 1994), 188.  5 See Richard McBrien, The HarperCollins Encyclopedia of Catholicism (San Francisco: Harper, 1995).  6 See Ashley Gipson, “Survey: Catholic Voters Split on Abortion, Gay Marriage,” USA Today, October 14, 2014, http://usatoday30.usatoday.com/news/ religion/2008-­10-­14-­catholics-­gays-­abortion_N.htm.   7 Pew Research Center, “Abortion Viewed in Moral Terms,” Pew Research Religion & Public Life Project, August 15, 2013, www.pewforum.org/2013/08/15/ abortion-­viewed-­in-­moral-­terms/.   8 The Church of Jesus Christ of Latter-­Day Saints, “Abortion,” Newsroom, www. mormonnewsroom.org/official-­statement/abortion, retrieved December 3, 2016.   9 See Pew Research Center, “Abortion Viewed in Moral Terms.” 10 See Guttmacher Institute, “Facts on Induced Abortion in the United States,” Guttmacher Institute, January 2011. 11 See Stanley K. Henshaw and Kathryn Kost, “Abortion Patients in 1994–1995: Characteristics and Contraceptive Use,” Family Planning Perspectives 28 (1996): 14–158. 12 Culturebox, “What Do Orthodox Jews Think About Abortion and Why,” Slate. com, August 25, 2000, www.slate.com/articles/news_and_politics/culturebox/ 2000/08/what_do_orthodox_jews_think_about_abortion_and_why.html. 13 The United Synagogue of Conservative Judaism, “The Abortion Controversy: Jewish Religious Rights and Responsibilities,” 2016, www.uscj.org/JewishLiving andLearning/SocialAction/SocialJustice/CurrentIssues/Political_SocialIssues/ TheAbortionControversy.aspx. 14 Union for Reform Judaism, “Free Choice in Abortion,” December 3, 2016, www.urj.org/what-­we-­believe/resolutions/free-­choice-­abortion. 15 Jews & The American Public Sphere, “Religion and the Public Square: Attitudes of American Jews in Comparative Perspective—­A Follow-­Up Study,” Survey of Jewish Opinions, www.cjcs.net/survey4.htm, retrieved December 3, 2016.

Section I

Hell

1

Hell

Part One: Introduction In this chapter, I argue that God will not send human beings to hell. My argument is that God would send someone to hell only if justice permits it as a means of punishing them. Justice permits such a punishment only if someone has does an infinitely wrong act or has an infinitely bad character. Because human beings do not meet either condition, God will not send them to hell. In the first part of this chapter, I argue that God would not, and perhaps cannot, impose hell on human beings. In the second part, I explore how my argument intersects with different conceptions of hell. Before going to the argument, we need to look at the nature of hell and just punishment. This chapter thus addresses a central feature of the Christian pro-­life worldview: the doctrine of hell. If the doctrine fails, the worldview is in trouble even before the issue of abortion is reached. Here I argue that the doctrine fails. The Nature of Hell This chapter makes the following assumptions about hell. More specifically, it assumes that if hell exists, then it has the following features.1 Some Inhabitants Thesis: There are some human beings in hell. The purpose of this assumption is to avoid the notion that hell is a location without inhabitants. No Escape Thesis: If a human being enters hell, he cannot leave. The idea here is that once a person goes to hell, he does not leave. Purgatory might be similar to hell in that it involves a period of suffering, but its temporary nature distinguishes it from hell. I leave aside the issue whether hell and purgatory are constituted by psychological conditions (for example, suffering), geographical regions, or something else. Infinite Negative Well-­Being Thesis: Hell results in a person having an infinitely negative amount of well-­being.2

18 Hell The idea behind this third assumption is that persons’ lives go poorly for each significant period in hell and that there are an infinite number of such periods. The “significant” locution allows that someone in hell might experience momentary pleasures. Someone’s life goes poorly if it is worse than nonexistence. An objector might claim that an individual who does not exist has no level of well-­being rather than a zero level. The idea being that a level of well-­being is an intrinsic feature of an individual and a thing must exist in order to have an intrinsic property. However, if one thinks that an individual should be rationally indifferent between not existing and having a zero level of well-­being, then we can say that the value of nonexistence to the individual has a value equivalent to zero. Alternatively, negative well-­being might be seen as occurring when the things that make an individual’s life go poorly outweigh the things that make his life go well. I am also assuming here that suffering over time does not approach a limit. For example, assume that well-­being is measured in well-­being units and that a person’s well-­being level for each successive year is as follows: 1, ½, ¼, and so on. Here even though the human being’s life goes poorly for each significant period and even though there are an infinite number of such periods, he or she still does not have an infinite negative well-­being level because the total amount approaches a limit.3 In some accounts, hell involves an everlasting amount of suffering. Because each additional unit of suffering (for example, −10 well-­ being units) merely adds a finite number to an already finite amount of suffering, an individual never has an infinitely negative amount of well-­being. The assumption here is that the amount of suffering a person has undergone is a cumulative property had at a time and that there is no time at which a person has had an infinite amount of it. However, there do seem to be timeless propositions about the future (for example, Jones will suffer each year for an infinite number of years) that entail that persons will receive an infinitely negative amount of well-­being, and hell might involve such propositions. In any case, I shall assume this is correct. If not, my arguments can be rephrased in terms of everlasting suffering. Other versions of post-­earthly existence involve universalism (everyone eventually goes to heaven), escapism (everyone is able to leave hell), annihilation (God causes persons who do not go to heaven to go out of existence), and the view that hell is a good place (persons’ lives go well in hell, although perhaps not as well as they go in heaven).4 The first one denies the conjunction of the Some Inhabitants Thesis and the No Escape Thesis, the second denies the No Escape Thesis, and the third and fourth deny the Infinite Negative Well-­Being Thesis. The belief in permanent hell or annihilation and that this is bad for those who go there or are annihilated is part of the Catholic and many Protestant traditions.5 In the King James version, biblical reference to post-­earthly

Hell  19 existence can be seen in Matthew 13:49–50; 25:41; 25:46. Post-­earthly existence is found in three famous creeds: the Apostles’, the Nicene, and the Athanasian. Mormonism also accepts it. The notion that many will not be saved can be seen in Luke 13:23 and Matthew 7:13–14. In addition, the New Testament appears to refer to hell. For example, there are references to “everlasting destruction” (Thess. 1:9), “eternal fire” (Jude 7), and being “tormented day and night for ever and ever” (Rev. 20:10). Just Punishment Punishment occurs when one person intentionally harms to a second because of what the second did.6 Conventional punishment occurs when an authority intentionally harms a second because the second violated a rule. Punishment is just when it satisfies the demands of justice. We now look at the notion of just punishment. Feature 1: Right to Punish Consider the following account of just punishment: Just Punishment: One person justly punishes a second if and only if the first has a right to punish the second and the punishment severity is no greater than the proportionality ceiling. The idea here is that just punishment is one that respects the rights of the person who is punished. This occurs when punishment is imposed on someone who has no claim against punishment and when the punishment takes place within the boundaries of the right to punish, that is, it does not exceed the justice-­based ceiling on punishment severity. A proportionality ceiling is the maximum punishment that justice allows. A just punishment might be less than the ceiling because the person with the right to punish may waive part or all of his right to punish. This is similar to the way in which a person who is owed money may waive part or all of a debt. The notion that a just punishment can only be imposed by the victim or her authorized agent can be seen in when we consider punishment in the state of nature.7 In the state of nature if Al savagely beats Betty, then we intuitively think that Betty has a right to punish Al. However, if roving agents have already punished Al for what he did, then Betty loses her right to punish Al, or she has a right to impose a disproportionate punishment. The former is incorrect, because it is hard to see what Betty has done that makes her forfeit or waive her right to punishment. The latter is incorrect because in the absence of such a proportionality constraint, many people could punish Al resulting in a vastly disproportionate amount of punishment being imposed, and this intuitively seems incorrect.

20 Hell Feature 2: Proportionality The second feature focuses on the ceiling on just punishment. Proportionality: A punishment is proportionate to the ground if and only if the severity of the punishment equals the seriousness of the ground. It is this notion that explains why we think that just punishments have a ceiling. For example, we think that a ten-­year sentence for stealing a candy bar is too harsh and a $10 fine for a brutal rape is too light. The seriousness of the ground is the product of the agent’s responsibility for an act and, perhaps also, the significance of the right on which the act infringed or was intended to infringe. This account of the seriousness of the ground captures two notions. First, other things being equal, diminished responsibility entails diminished proportionate punishment. For example, provocation, duress, and other responsibility-­diminishing features lessen the punishment that intuitively may be imposed on a wrongdoer. We also think that insanity and infancy completely excuse the actor from punishment. The same is true for ignorance of the relevant facts when the agent is blameless for his ignorance. Second, other things being equal, a person who attempts to infringe on a more significant right should receive greater punishment than one who attempts to infringe on a less significant right. For example, if one person tries to cut up a model’s face and a second tries to steal her car, we intuitively think that justice permits a greater punishment of the first. There is an issue as to whether just punishment is grounded by attempts or outcomes. For simplicity, I shall focus on outcomes, but justice actually focuses on attempts. This can be seen if we consider two doppelgangers (identical persons with identical mental states—­specifically motives, intentions, desires, etc.) both who attempt to shoot someone. The first succeeds. The second fails due to a defective bullet which was something that the second could not have predicted. If punishment rests on things for which the agent is responsible and if the doppelgangers are responsible for the same things (same intention, mental act, physical movement, etc.), then punishment cannot track outcome. With these assumptions in mind, let us turn to the argument against hell.

Part Two: God Will Not Send Human Beings to Hell Argument In this part, I provide an argument for the claim that no human beings go to hell and then defend the premises. (P1) If some human beings go to hell, then God imposes it as punishment. (P2) If God imposes hell as punishment, then justice permits God to impose an infinite punishment on some human beings.

Hell  21 (C1) Hence, if some human beings go to hell, then justice permits God to impose an infinite punishment on some human beings. [(P1), (P2)] (P3) Justice does not permit God to impose an infinite punishment on some human beings. (C2) Hence, no human beings go to hell. [(C1), (P3)] The argument probably supports a stronger thesis, namely, that God can’t send human beings to hell. The idea here is that a person can do something only if he can choose to do it. A person can choose to do something only if he can be motivated to choose it. If a motivation would conflict with an individual’s essential nature, then it is not one that he can have. Because God is essentially all good, he can’t be motivated to choose to do evil things, such as creating hell or sending someone there.8 While I think this argument is sound, I shall focus on the more limited claim that God won’t send anyone to hell even if he could do so. Defense of Premise (P1) (If Some Human Beings go to Hell, Then God Imposes It as Just Punishment) The idea behind this premise is that if some human beings go to hell, then God imposes a negative choice-­consequence (either directly or indirectly). If God imposes a negative choice-­consequence, then the consequence is either a disincentive or punishment. Hell is not a disincentive. This is because there is nothing that hell can deter that cannot also be deterred by a finite punishment, albeit, perhaps, a very severe one. One objection here is that God does not impose hell (either directly or indirectly). Rather it is a choice of the persons who choose to separate themselves from God.9 However, God intentionally makes the consequences of the choice harsh, and this makes it a punishment. Consider the following case. Janitor Punishment A school principal sets up the punishment for student fighting. If he sets up a system whereby the janitor forcibly sodomizes fighters, then the principal is responsible for the fighters’ suffering even if they have made themselves liable for it.10 Similarly, if God sets up a system where persons suffer greatly for refusing to accept him in their lives, then he punishes them. A second objection is that God imposes hell, but it is a disincentive. A finite disincentive will work as well for morally responsible individuals and that is who should be the focus here. This is because the value of freedom does not provide a reason for God to avoid interfering with those who are insane or have another responsibility-­undermining condition. The only thing that a finite punishment cannot deter is an infinite gain. Outside of

22 Hell heaven, which cannot be achieved through wrongdoing, it is hard to see what infinite gains human beings hope to receive. A third objection is that in allowing people to go to hell, God refuses to provide them with a benefit rather than harming them. The idea is that hell is the separation from God and with it comes the loss of love (including God’s love), purpose, and community. Because there is no duty to provide such a benefit, those sent to hell have not been unjustly punished. However, if someone can provide a benefit to another and can do so at no cost to himself, failure to do so indicates too little beneficence. Sending persons to heaven is a benefit that God can provide at no cost to himself, and hence, his failure to do so would indicate too little beneficence, which is impossible in a perfect being. Here is the applicable principle. Beneficent-­Character Principle: If someone could provide a benefit to another at no cost to anyone and without making the world a worse place, then refusal to do so reflects a defect in beneficence. The objector might respond that life in heaven is only possible for a person who willingly wants to join God. Alternatively, he might argue that life there would not be good for someone who does not accept God or some aspect of his love and, perhaps, also morality. The idea here is that a human being who does not warrant heaven would suffer there because he is terribly unsuited to join God. However, in accord with beneficence, God would then provide a life that is as good as possible or at least one that does not involve negative infinite well-­being. If this is not possible, then a beneficent being like God would annihilate someone rather than consign him to hell. Another objector might respond that a person who warrants hell is evil and that making an evil person’s life go well makes the world a worse place.11 An example that illustrates this claim is the common intuition that if Hitler were isolated on a tropical island, the world would be in itself better if he were to suffer rather than flourish, even though his condition would not affect anyone else. One concern here is that it is not clear if everyone who warrants hell is evil. In addition, if a person’s suffering would in itself make the world a better place, the beneficent thing for God to do would be to annihilate him rather than sending him to hell. A different objector might claim allowing people who do not warrant heaven to go there would impose a cost on God. Hence, beneficence does not dictate that he send such an individual there. Even if true, a beneficent being would again opt for annihilation. Defense of Premise (P2) (If God Imposes Hell as Just Punishment, Then Justice Permits God to Impose an Infinite Punishment on Some Human Beings) The idea here is that if there is no consequentialist override, then God acts in accord with justice. Here there is no consequentialist override. A

Hell  23 consequentialist override is a reason that trumps other moral reasons and focuses on bringing about the best outcome. If there were a consequentialist override, then God would have the duty to create a maximally great state of affairs, but such a duty would be impossible to satisfy because there is an infinite sequence of increasingly better states of affairs. For example, God could have created a world with one happy person, two happy people, three happy people, and so on. Alternatively, God could have created a world in which the people had an average of 1 well-­being unit/life, 2 well-­being units/life, 3 well-­being units/life, and so on. If there is an infinite sequence of increasingly better worlds, then there would never be a consequentialist reason to bring about any one world because this reason would always give God a reason to create a still better world.12 Whether we focus on the total or average amount of well-­being, each world is better than the previous one and there is no limit. If God created a world with an infinite amount of good in it, then it is unclear whether subtracting or adding an infinite amount of good (for example, a person in heaven) makes the world have zero value or some other value.13 Again, then, there would be no particular state of affairs that would be maximally good. An objector might claim that there is a consequential override in this context. The maximally great state of affairs is the one with an infinite amount of intrinsic goodness. He might claim that some infinities are better than others. For example, he might claim a life that had the following infinite number of well-­being level/year 2, 2, 2, 2, . . . is better than this life, 1, 1, 1, 1, . . . , even though the total amounts are the same. This is also true if we are talking about total well-­being/life. One principle that might explain this is the Weak Pareto principle. It states that if each value location has more goodness in one world compared to another, then the first is better.14 In some accounts, a stronger principle is available. In one such principle, one world with infinite value locations can be better than a second with infinite value locations even if the first is not better at every location. The idea is that if relative to one finite subset the first is better, and no matter how that set is finitely expanded the first remains better, then the first is better than the second.15 There still, however, is no limit to goodness because there could be successive additions to the happiness of an infinite population. For example, in the first world, the well-­being/life is 8, 8, 8, . . . . After addition it becomes, 9, 9, 9, . . . . Hence, there is no maximally great state of affairs and, hence, no consequentialist duty for God to override justice. The claim that there is a consequential override can be seen in an argument by William Lane Craig. Craig argues that God must allow some individuals to go to hell in order to make the world a better place.16 He claims that this is because a large number of individuals can go to heaven only if some go to hell. The reason for this is that God has actualized a world in which there is an optimal balance of saved and unsaved individuals. In his account, there are two reasons for this. First, there might be individuals who suffer transworld damnation; that is, they are lost in every world that is feasible to God. They might be lost in every world in which they exist or every world in which

24 Hell they exist, and a large number are saved. Second, they might suffer from contingent damnation. Here who is lost and who is saved vary between possible worlds. In Craig’s account, God has middle knowledge (knowledge of what human beings will choose under different conditions) and, hence, knows given what world he actualizes, who will be saved and who will not. Craig’s argument fails. If one individual’s decision were necessarily linked to another, then the linkage would undermine responsibility and hence the basis for sending or allowing someone to go to hell. If instead individuals’ decisions are not so linked, then it is logically possible for everyone to be saved. More specifically, there is a particular possible world that lacks the transworld damned and for which it is true that all of its inhabitants are saved. If such a world is possible and if God has middle knowledge, then he can make such a world actual and thus save everyone. It is hard to see how one would have either more well-­being units or higher-­order goods by creating a world in which some are damned. One good is higher-­order than a second if the first has more moral weight than an equal quantity of the second. Defense of Premise (P3) (Justice Does Not Permit God to Impose an Infinite Punishment on Some Human Beings) If justice permits God to impose an infinite punishment on some human beings, then human beings warrant an infinite punishment. If human beings warrant an infinite punishment, then either their character or acts warrant it. Character-­Based Punishment A human being’s character does not warrant infinite punishment. The idea here is that punishment tracks desert and desert tracks character. Here is the argument for the notion that desert tracks character. Acts and character are the most plausible grounds of desert because these are the two things for which a person is most responsible. Desert does not track acts. This is because if desert tracks some feature of an act, then it tracks the motive from which the act is done. Because a person’s character is the collection of his mental states and the relations between them, motive is part of that collection. If desert tracks motive and motive is part of character, then it tracks character, or at least part of it. The notion that desert tracks motive can be seen when we consider the following cases: Example 1: Good Motive and Right Act Alice tries to save Betty’s life because she loves Betty. Example 2: Bad Motive and Right Act Carla tries to save David’s life because she believes that David will kill her ex-­husband, and Carla wants him dead.

Hell  25 Example 3: Good Motive and Wrong Act Erica is a surgeon who tries to save Francis’s life through a lifesaving operation. Unfortunately, she is relying on another physician’s, Gerry’s, diagnosis, and it is incorrect. The combination of incorrect diagnosis and surgery brings about Francis’s death. Example 4: Bad Motive and Wrong Act Hank kills Inez because he finds it arousing to watch women die. Our intuitions support the conclusion that negative desert (that is, deserved suffering) tracks the motive from which an act is done and not its deontic status. Positive desert also intuitively seems to track good motives. Because desert tracks the motive from which an act is done rather than the deontic status of the act, the former is what grounds desert. The badness of character is a function (for example, a sum) of the virtue and vice of particular attitudes.17 A human being has an infinitely bad character only if he has an infinite number of mental states or one of his mental states has an infinite intensity or duration. This rests on the following account of the goodness of a character: Goodness of Character = [(# good mental states)(intensity/good mental state)(duration/good mental state)] − [(# bad mental states)(intensity/ bad mental state)(duration/bad mental state)] If a character is infinitely bad, then a human being has an infinite number of attitudes, or some of his attitudes have infinite intensity. Because of human beings’ finite mental capacity, neither is true, at least during earthly life. Remember that on the conventional account of hell, it has to be warranted at the end of earthly life. Hence, bad character does not warrant infinite punishment. An objector might assert that we do have infinite attitudes (for example, 1 is less than 2, 3, 4, . . .). Even if this is true, it is probably not true of virtuous and vicious attitudes. Even if there were an infinite number of virtuous and vicious attitudes, there would still be a basic virtuous or vicious state that would be the bearer of value.18 For example, the mental state Jones’s pleasure at the thought of Smith’s pleasure would be basic virtue-­state and other states, for example, Jones’s pleasure at the thought of Smith’s pleasure while in Aruba would have value only in so far as it contained the basic value-­state. Even if bad character grounds deserved suffering, it likely does not warrant punishment. After all, we don’t normally think that mean-­spirited hermits should be punished. In any case, we can sidestep this issue because human beings cannot have bad enough characters to warrant hell. Table 1.1 provides a summary of objections to character-­based infinite punishment.

26 Hell Table 1.1 Character Grounds Infinite Punishment 1. No Punishment: Even if bad character grounds deserve suffering, it does not justify punishment. 2. No Infinitely Bad Character: Human beings do not have infinitely bad characters.

One additional argument that appears to fit in here is by Thomas Talbott. Talbott argues that the existence of suffering beings in hell prevents the existence of heaven because persons in heaven would feel pain at the thought of the suffering of those in hell.19 This is murky because it is not clear that one should feel pain at the thought of another receiving his just deserts or punishment and even if one should, it is not clear that it would and should prevent the flourishing of those in heaven. When a virtuous soul in heaven realizes the multitude saved and the few damned, it might, for example, reduce his well-­being level from +50 well-­being units/year to +45 well-­being units/year.20 When it comes to virtuous attitudes, pain at the thought of those suffering in hell should be weighed against the pleasure of the thought of others in heaven. Act-­Based Punishment A human being’s acts do not warrant infinite punishment. Just punishment tracks seriousness of wrongdoing and human beings do not perform an infinitely serious wrongdoing or an infinite number wrongdoings that are in the aggregate infinitely serious.21 Finite Acts

If human beings’ acts warrant infinite punishment, then either finite or infinite acts do so. In this section, I argue that human beings’ finite acts do not warrant infinite punishment. The first assumption is that finite acts against human beings do not warrant infinite punishment. One reason is that an agent can cause or attempt to cause an infinite loss only if he tries to send someone to hell. This presupposes that hell exists and that people get sent there. In the absence of an independent reason for hell to exist, this begs the question. A second reason is that a person can be responsible for a result (for example, Jones going to hell) only if he intends it, that is, only if this is his goal or means. My guess is that it is rare to find someone who intends to bring this about. Even if the agent in question were indifferent about whether he was ending a person’s earthly or eternal life, if he did not intend the latter he still lacks the relevant intention. The second assumption is that finite acts against God do not warrant infinite punishment. God does not have the right to punish. This is because

Hell  27 human beings do not victimize him. He might gain the right to punish on behalf of victims if the victims transfer their right to punish him. This is similar to the way in which in business, a principal can authorize an agent to act on his behalf. However, a transfer of right requires uptake in order for the right to transfer.22 Uptake is a speech act that constitutes acceptance. For example, a buyer must accept the seller’s offer in order to gain the right to a good. As far as I can tell, many people have not transferred their right to punish to God, and even if others have, I see no evidence of his uptake. In addition, if the people who have transferred their right to punish to God are saved, perhaps because they accept God in their lives and act accordingly, then no one who transfers the right to punish suffers an infinite loss. Hence, even if there are transfer and uptake, they must be done on behalf of someone who suffers an infinite loss because he ends up in hell. Depending on what is necessary to be saved, this is an unlikely scenario. Human beings might be thought to wrong God because they harm his creations (analogy: property), disobey (analogy: state authority), or are ungrateful (analogy: child and parent). In addition, because his well-­being is infinitely important, harming him warrants an infinite punishment. None of these arguments work. First, the analogies do not apply. Humans are not property otherwise they would lack moral claims. The assumption here is that an individual owns something just in case he is owed all the claims with regard to that thing. Nor do humans owe him obedience if they have not promised it. In general, the greater wisdom of one person does not result in his having authority over slower persons. Nor do persons owe him gratitude if they have not actively accepted his benefits and even if owed, the duty may be satisfied in other ways. For example, it might be satisfied through charity, prayer, or spreading the word about salvation. If no such duties exist, then human beings rarely wrong God. Second, even if they do wrong God, it is unlikely that they act with the requisite intent. Hence, God rarely, if ever, has a right to punish them. Third, even if a human being wrongs God and even if he has the relevant intent, it is not clear the wrong is infinitely serious. This depends on which of God’s rights, human beings infringe or attempt to infringe on. In the absence of such an account, we can’t be confident that the wrong is infinitely serious. One objection is that human beings wrong God when they mistreat his creations. Jonathan Kvanvig discusses the notion that this wrong is similar to one that occurs when a person wrongs a parent by wronging her child. Kvanvig’s idea is that when two people stand in an intimate, immediate, and connected relationship, it is possible to wrong one by wronging the other.23 There are a couple of problems with this objection. One problem is that it is not clear that God stands in an intimate, immediate, and connected relationship with human beings. Kvanvig admits that one does not wrong a parent when he harms her adult child and that the distance between God and a human being appears to be as great as that between a parent and her adult

28 Hell child. Deciding whether God has such a relationship with humans requires a better understanding of intimate, immediate, and connected relationships than we currently have. A second problem is that the basic idea conflicts with what is probably the best view of rights. If one adopts a property-­rights theory of moral rights (that is, all rights are property rights), then it is false that one wrongs a parent by wronging her child. On this theory, at least at some point, a child owns herself, and no one else owns her. Hence, wronging the child does not infringe on her parent’s right. The property-­rights theory asserts that rights are claims to particular things, negative, and do not conflict. This theory coheres nicely with intuitions about the rights to life, liberty, and property.24 It also provides a clean explanation of various political freedoms, such as those concerning religion and speech, and how the state gains authority. If the property-­rights model is correct, then one does not wrong a parent by wronging her child, and hence, the objection does not get off the ground. A respondent might argue that wronging a child infringes her parents’ rights, specifically, the right against unjust emotional harm. Hence, it would be wrong to kill a fetus in order to send her to hell if one or both parents do not consent. One problem with this is that this makes abortion permissible when both parents consent. This is not something that a pro-­lifer will concede because this can occur and, in fact, often does occur. A second problem is that this wrong-­making feature would not be present even when one or both parents did not consent so long as they were not emotionally harmed or, if they were harmed, the emotional harm was caused by what was done to the woman (involuntary abortion) rather than what was done to the fetus. A third problem is that causing unjust emotional harm is not a primary wrong-­making feature. An act is unjust if and only if it infringes a right. Hence, this theory of wrongness presupposes that the wrong-­ making feature is another right infringement, and thus, the wrongness of emotional harm depends on another wrong. This can be seen in that it is not wrong to cause emotional harm when doing so is done through a just means. For example, if freeing a plantation owner’s slaves causes him severe emotional harm, doing so is not wrong, not even prima facie wrong, because it is just. A second objector might point out that the preceding argument assumes that God does not have a right to punish humans because they don’t victimize him. The objector notes that because God is essentially good, he cannot err with regard to the creatures he creates or the ends he instructs them to pursue. These ends, the objector argues, determine the good of the creatures, and so acting inconsistently with them is wrong. Just as parents may punish their children for acting inconsistently with their proper end, so God may do so with his children. Just as their children’s wrongdoing need not victimize their parents in order for their parents to punish them, the same is true for God. In fact, it is even more true given that God is essentially good

Hell  29 and the source of all existence, including rational creatures. Here is a passage designed to illustrate this idea: God made you and your victims in his image, sustains you and your victims in existence, made you and them for a particular goal to reconcile with him, love him, and be loved by him; and morality is the immanent means to that goal. When you fail to live the loving life that he wants you to do, your proper end, the good that morality serves, you have wronged him, (not to mention yourself, and others,). Morality is fundamentally loving God, loving him involves loving his creations, and morality is aimed at union with God so when you are immoral you don’t show you love him and you need to be reformed and reconciled to him for he is the Good that you fall short of.25 The problem with this objection is that it fails to identify the way in which a human wrongdoer wrongs God. One person wrongs a second if and only if the first fails to satisfy a duty owed to the second. God does not own people. Hence, when one person wrongs a second, God is not wronged because he owns the second similar to how someone who owns a horse is wronged when a horse thief injures his horse while stealing it. Nor do people have a duty to God via promise, at least for people who have not promised God to avoid wronging others. There is not even a fair play–type duty given that many people do not see themselves as participating in a mutually beneficial and just cooperative project with God. If people owe a duty to God other than gratitude, it is based on gratitude. Gratitude does not ground a duty in one person to avoid wronging a second. Gratitude requires that one person be thankful for the benefit that the benefactor gave them and perhaps communicate his thankfulness. Whether a person does this is independent of whether he wrongs another. Nor can refraining from wronging another be the only means by which gratitude be expressed because refraining from wronging another is at best loosely connected to expressing gratitude. In fact, it is often more virtuous for one person to refrain from wronging a second because he sympathizes or empathizes with the second rather than doing so because he is grateful to God. Thus, when one person wrongs a second, he does not wrong God. The objector’s argument appears to be that people have a duty to God because he created their unique and ultimate good. One problem with this is the Euthyphro Dilemma. Specifically, if the good would not exist independent of God, then the unique and ultimate good of people is arbitrary. If it would exist independently of him, then he does not create it even if he created people. Second, this smuggles in right-­grounding features and does so in an incorrect way. If a person’s unique good includes respecting people’s rights, not exploiting them, not harming them, and so on, then this just includes standard right-­and wrong-­making features through the good for people. However, it includes them in the wrong way in that the primary reason it

30 Hell intuitively seems we should not violate people’s rights by murdering, raping, or beating them is because of what it does to the person to whom these things are done. In contrast, the teleological account suggests that the primary reason is because of what these actions do to himself or, perhaps, to God. The correct view is that the primary reason rests on what was done to the people to whom these things are done. Third, this makes morality a function of goodness in a way that is mistaken or trivial. If the good is understood as the good for someone, then a person acts morally when, and only when, he promotes what is good for him. This makes it impossible for an immoral act to be in someone’s interest and a moral one to be opposed to it. This is implausible. If the good is understood as good for people in general, and not just for the individual, then this theory makes the right depend on what makes people’s lives go best. This entails consequentialism or something like it, and neither theory would hold that it is permissible to bring about infinite suffering. If the good is not understood as the good for someone (an individual or others), then the objector is merely saying that a person ought to do what is morally required of him. This is trivially true. In any case, none of these interpretations of the people’s unique and ultimate good results in people wronging God when they victimize another person. A third objector might argue that God is perfect (specifically, essentially all-­good and all-­knowing), and thus if he believes that someone deserves an infinite punishment, the individual deserves it. God believes that people who intentionally kill innocents deserve an infinite punishment (it is a mortal sin). Hence, the objector concludes, people who intentionally kill deserve hell. One problem with this argument is that merely because someone deserves something, it does not follow that another individual (God or man) has a right to impose it on him. For example, a prisoner who has been a bad husband, father, and son might deserve to suffer, but this does not mean that the Aryan Brotherhood or other prison gang has the right to make him suffer. If the argument is restated in terms of whether someone ought to receive an infinite punishment, a different problem arises. Specifically, it begs the question to assume that God believes that people who intentionally kill innocents ought to receive an infinite punishment. Being omniscient, God believes what is true. If the above argument succeeds, then it is not true that people ought to be sent to hell. Hence, God does not believe that they should be sent there. Infinite acts

If human beings do not do acts that in the aggregate are infinitely serious, then their acts do not add up in such a way as to warrant infinite punishment.26 The notion that human beings do not do acts that in the aggregate are infinitely serious rests on the following assumptions. A human being can’t do an infinite number of acts during his life on Earth.27 He might be able to do an infinite number in the afterlife. However, it is not clear what acts he could do that wrong other human beings or God and that are done an infinite number of times.

Hell  31 Even if there were some acts that wrong other human beings or God and that could be done an infinite number of times, it is not clear the individual could be responsible for doing them. If human beings do an infinite number of acts and these acts ensure that he goes to or stays in hell, then the refusal to stop doing them reflects a mental defect. Specifically, it reflects a defect in knowledge, desire, or willing. For example, the defect might be ignorance (for example, not knowing to avoid such acts), intrinsically irrational desires (for example, wanting to suffer), or weakness of the will (for example, intending to refrain from such acts, but still doing them). After a while, the persistence of such a defect reflects a loss of moral responsibility, and it is unjust to punish someone under this condition.28 There is an issue as to whether human beings can ever do an infinite number of acts. Every act they do adds one more to a finite number. If a human being were to count endlessly (0, 1, 2, 3, . . .), he would never reach infinity.29 Acts seem to work in the same manner. On the other hand, if an individual were to wrong another in every significant finite period (for example, one wrong a year) and he persists for an infinite number of years, then he would perform an infinite number of wrongs. This is true even though there is no time at which he has completed an infinite number of wrongs. If a just punishment can only be imposed at a particular time, then hell is unjust. Also, if a just punishment must follow the act or acts that warrant it and if hell is warranted by infinite acts, then hell is unjust.30 It is worth remembering here that on the account of hell we are assuming, no one in hell can escape it. Summary of Act-­Based Punishment

Table 1.2 summarizes the findings about act-­based punishment.

Table 1.2 Number Wrongs Human Beings of Acts Finite

Wrongs God

•  Do Not Wrong God: Human 1. Begs the Question: This begs beings do not wrong God or the question in assuming hell attempt to do so. exists. •  Do Not Intentionally Wrong 2. Lack Intention: Human beings God: Even if human beings rarely intend to cause others wrong God, they do not infinite harm. intentionally do so. 3. No Right Transfer: Some human •  No Infinitely Serious Wrong: beings don’t transfer their right Even if human beings wrong to punish to God. Those that do, God and do so intentionally, the don’t suffer an infinite loss. wrong is not infinitely serious. 4. No Uptake: Even if human beings transfer their right to punish to God, he does not give uptake. (Continued)

32 Hell Table 1.2  (Continued) Number Wrongs Human Beings of Acts Infinite

•  No Infinite Wrongs: Human beings do not infinitely wrong other human beings. •  No Responsibility: Even if there are infinite wrongs, the agent is eventually not responsible for doing them. •  Infinities: Even if human beings can do an infinite number of wrongs, and this is not clear, there is no time at which hell may be imposed. •  Same as Above: There is no right transfer to God or, if there is, he does not give uptake.

Wrongs God 1. No Infinite Wrongs: Human beings do not infinitely wrong God. 2. No Responsibility: Even if there are infinite wrongs, the agent is eventually not responsible for doing them. 3. Infinities: Even if human beings can do an infinite number of wrongs, and this is not clear, there is no time at which hell may be imposed. 4. Same as Above: Human beings do not wrong God or attempt to do so. Even if they do, they do not do so intentionally.

Part Three: Objections31 One objector might claim that it is wrong to kidnap someone and hook her up to the experience machine even though the machine would cause the one who is kidnapped to have a perfect life. Specifically, the life would consist of a succession and variety of pleasurable experiences and would be free of any disappointments, sadness, pain, or suffering. Doing this to a kidnap victim would be wrong, the objector notes, because it would rob her of choice. The same is true, the objector argues, with regard to a fetus. This kidnapping would not be wrong, though, if the unhooked-­up victim were to lead a short and miserable life and hooking her up guaranteed her an ecstatic and everlasting life. This is because the consequential gain is so large that it overrides the wrongness of infringing on her right. By analogy, assuming there is no afterlife, it would be permissible, all things considered, to kidnap Hitler’s mother before she got pregnant and hook her up to the experience machine if doing so was the only way to prevent Hitler from being born and causing the violent death of tens of millions of people in World War II. Returning to when there is an afterlife, the expected gain in the case of aborting a fetus, and the actual gain in cases in which the fetus would have developed into someone who went to hell, is larger than the gain in the World War II case because the former generates an (expected or actual) infinitely positive benefit, rather than a finite one, and the cost is the same in both cases. The general problem here is that the case for overriding a right gets stronger when doing so generates an infinite net gain. A second objector might argue that if killing an innocent person is wrong, then participants in an abortion—­mother, doctor, nurse, and so on—­have

Hell  33 damned themselves (in the Catholic tradition, it is a mortal sin). The objector notes that I would respond that this begs the question by assuming that abortion is wrong when it sends a fetus to heaven. The objector gives a couple of replies to this response. First, the objector reasons, God is perfect and tells us not to kill the innocent. Necessarily, if God instructs people to do something, then it is obligatory. Because God instructs people not to kill innocents even if doing so produces net good results, intentionally aborting a fetus is wrong. Second, he notes that heaven has to be earned through good choices or virtue. A fetus will never make such choices or be virtuous even if she ends up in heaven. Hence, heaven-­guaranteeing abortion wrongs the fetus because it prevents her from earning heaven. The first argument begs the question because it assumes that God believes that people who intentionally kill innocents ought to receive an infinite punishment. Being omniscient, God believes what is true. If the preceding argument succeeds, then it is not true that people ought to be sent to hell. Hence, God does not believe that they should be sent there. The author might respond by citing the Bible or religious experience in which case we would need evidence that these are infallible indicators of what God believes and that one or both indicate that God believes this. Even if the former claim is true, the objector would still need to establish that the best interpretation of the Bible prohibits the killing of innocent, intentional killing of innocent, failing to prevent an innocent’s death, or so on. This would likely rest, at least in part, on an evaluation of these positions, and this takes us back to the above philosophical discussion. The second argument rests on the notion that fetuses and infants do not earn heaven. I agree. Still, it intuitively seems tragic if their not earning it prevents them from going there. This would make miscarriages and sudden infant death syndrome incredibly tragic. The claim that once in heaven, a fetus will never make choices or be virtuous assumes that God does not allow fetuses to develop in heaven. This is implausible given that allowing them to do so would be good for the fetus and would not wrong or harm anyone and that God wants what is best for those in heaven. It is far more plausible that God allows them to develop into a virtuous being capable of choices or simply transforms them into a being with this capacity. A third objector might note that classical theism holds that God cannot be arbitrary because he is the source of the universe, including morality. Because morality cannot be arbitrary, the objector reasons, God cannot be arbitrary. Specifically, the objector might argue as follows: On classical theism, God cannot be arbitrary since arbitrariness presupposes a larger universe in which the arbitrary act is performed. But God is not a thing in a larger universe. He is a self-­subsistent being and thus is that form from which all being that receives being arises. Also, on classical theism, God is good, since he is the plentitude of being and being is convertible with the good. Thus, God can no more

34 Hell be arbitrary than his essence be not identical to his existence. This, of course, is controversial, since even some theists reject it (for example, Richard Swinburne and Alvin Plantinga). Nevertheless, it is the view of Catholicism, the largest pro-­life religious body on Earth.32 Even if God cannot be arbitrary, the issue still arises whether God prohibits people from aborting their fetuses as a way of guaranteeing that they go to heaven. As argued earlier, it begs the question to assume that he does so. Even if God is the source of morality, the issue arises as to whether God could have been different and thus constituted or given rise to a different morality. If he could have been different, then morality is arbitrary. If not, then something about God, morality, or the connection between the two does not allow for it. What would not allow for it is the reason or reasons that make morality have the nature and content it does. If so, then the content of morality does not depend on God in a way that depends on his beliefs, desires, intentions, or choices, and thus, it is independent of him in the relevant sense even if not metaphysically independent. A fourth objector might respond to the Euthyphro dilemma by arguing that on classical theism, God is identical to the good. As a result, morality is neither independent of God nor arbitrary because it depends on God. As argued earlier, though, the issue then becomes whether God could have been different in such a way as to make morality not exist or different. If he could have been different, then morality is arbitrary in that it depends on God’s contingent nature or his beliefs, desires, intentions, or choices and none of them fundamentally rest on necessary-­and-­intrinsic reasons (reasons that necessarily rest on, and only on, the intrinsic nature of things). If he could not have been different, then morality is not arbitrary, but this is because God’s nature has an essential connection to necessary-­and-­intrinsic reasons. On this horn of the dilemma, morality is not arbitrary and, in some sense, is independent of God because it explains his essential nature, even if it is still metaphysically dependent on him. A fifth objector might argue that heaven is not a place. Rather, it is an ultimate end to which we are ordered. This ultimate end is full participation in heaven. More specifically, it is fully taking part in beatitude. This occurs when one sees God in all of his essence. The objector continues that one can achieve full participation only if she makes free choices (or, perhaps, exercises powers) that require full maturity. Thus, even if a fetus goes to heaven, she is harmed because she is unable to acquire the highest level, or perhaps merely a higher degree, of beatitude. Hence, the objector concludes, killing a fetus to guarantee that she will go to heaven wrongs her because it harms her. If this were correct, this would make miscarriages and sudden infant death syndrome incredibly tragic. They would not only take individuals away from their families but also deny them a higher degree of beatitude for an everlasting future. The claim that once in heaven, a fetus will never make choices or be virtuous assumes that God does not allow fetuses to develop in heaven. This is implausible given that allowing them to do so would be

Hell  35 good for the fetus, would not wrong or harm anyone, and that God wants what is best for those heaven. It is far more plausible that God allows them to develop into a virtuous being capable of choices or simply transforms them into a being with this capacity. Even if the fetus were to be denied a higher degree of beatitude, it is still not clear that abortion would harm it. If a fetus were to develop into an adult, then she would run the risk of going to hell as well as having a chance of experiencing a higher degree of beatitude. If the chance of the former were large enough, then it might still benefit a fetus to guarantee her everlasting life at a lower degree of beatitude. For now, let us set aside the difficulty of generating expected values when there are infinite payoffs. By analogy, consider a person in a prisoner of war camp who faces three options: a 90% of extreme torture and then mutilation followed by death; a 9% chance of a minimally good existence consisting of minimal sustenance, friendship, and being left alone; and a 1% of an ecstatic and meaningful life. Assuming the prisoner doesn’t get to choose, it likely benefits the individual to guarantee that he gets the second option. If infinite values are entered into the mix, then lower and higher degrees of beatitude over an everlasting life generate the same total amount of well-­ being and thus are equally good because the total amount is infinite. They do not generate the same average (per time) amount of well-­being, but there is a good reason not to identify someone’s well-­being in terms of his well-­ being per time (for example, per moment). Such an account of well-­being would say that a momentary ecstatic life was better than a century of a minimally lower level of ecstasy because the former has a higher average-­ per-­moment happiness level. It also entails that the addition of very happy, but not ecstatic, years to an otherwise ecstatic life would make someone’s life go worse because it would lower average-­per-­moment happiness. This is a variant of the mere addition paradox. It would make the issue of whether happy years now for an individual make her life go better depend on how happy she was when she was younger. This is a variant of the Egyptology problem and it is implausible. A sixth objector continues that there is special value in a life that includes freely chosen virtue, specifically, virtue that includes self-­sacrifice and risk. If this were not true, God would just teletransport people into heaven in general or, perhaps, would send them once they became virtuous. The problem with the preceding argument, the objector argues, is that it denies the value of a life of virtue on Earth. Killing an innocent denies this value and in so doing denies an important good for fetuses or, perhaps, an important good simpliciter. The problem with this objection is that even if this is correct, the value of a life with freely chosen virtue is a finite one. This is true whether the good is for the individual or simpliciter. Because it is finite, it can, and sometimes will be, outweighed by the infinite gain for someone of going heaven when he otherwise would have gone to hell. This outweighing is made even greater if, in heaven, the fetus becomes someone who has freely chosen virtue.

36 Hell

Part Four: Other Theories of Hell Theory 1: Annihilation Hell does not fare any better if we drop one or more of the assumptions we made about the nature of hell. Consider annihilation. This occurs when after earthly existence, God causes some human beings to cease to exist. This conflicts with Negative Infinite Well-­Being Thesis (hell results in a person having an infinitely negative amount of well-­being). Annihilation is just only if God has a right to punish human beings, and as argued previously, he does not. In addition, an individual suffers an infinite loss when he is annihilated rather than sent to heaven. If an infinite punishment of human being is unjust, and for the earlier reason I think it is, then such a punishment is unjust. A proponent of annihilation might object that it is a natural end to human existence, except when God intervenes to ensure that someone lives on in heaven. This is similar to the way in which a physician who allows a person who is not his patient to die of a curable cancer has not killed her but merely allowed her to die. The idea, then, is that God would not wrong anyone because no one has a claim against him that she be kept alive for eternity. A response to this objection is that God created persons who have this natural end. He could have created them with a different end because being mortal is not essential to free being, good being, or another type of being he might create. Hence, God would be blameworthy for creating less-­than-­ optimal beings. However, if there is an infinite sequence of increasingly better beings, this might not indicate a defect in God any more than creating a world with an infinite amount of good signals a defect just because it is always possible for God to tack on more good things. The real problem with this account is that it conflicts with the Beneficent-­Character Principle. That is, the refusal to benefit someone when it has no cost to the benefactor reflects a defective character, in particular, a lack of beneficence. Theories 2 and 3: Escapism and Universalism The escapist theory of hell asserts that everyone is able to leave hell. It denies the No Escape Thesis (if a human enters hell, he cannot leave) and the weaker thesis that some people who enter hell are unable to leave it. Again, there is a concern whether God has the right to punish people. In addition, if people can escape, then the refusal to do so, in the long run, can only be explained by factors that undermine responsibility. The only reasons an individual would not want to join God over time is his failure to recognize, desire, or will being with God. Such failures over vast stretches of time can only be explained by factors that undermine moral responsibility. Universalism asserts that everyone eventually goes to heaven. It conflicts with the conjunction of the Some Inhabitants Thesis and No Escape Thesis. If it is combined with the notion of purgatory, a temporary period of suffering that occurs before some persons can go to heaven, then it assumes God

Hell  37 has the right to punish. In the absence of an assumption about purgatory, it is an appealing theory. Theory 4: Hell Is a Good Place A fourth theory is that hell is a good place. It is worse than heaven in that it lacks something that makes individuals’ lives go better, probably a personal relationship with God or something along these lines. The motivation for this theory is that because God is a loving being, he would not want to cause anyone to suffer unnecessarily. This is true whether God does so directly or indirectly. One concern about this theory is that it makes hell look like part of heaven. This issue gets murky in the absence of an account of whether heaven and hell are locations, states of being, or something else. In addition, if persons did not eventually leave hell, this would likely be explained by factors that reflect a lack of responsibility. Again, the idea is that over vast stretches of time, the only reason for an individual to refuse to make his life go better and do so in a way that connects him to the true and the good is that he suffers from a defect. This defect might be a problem with his knowledge, motivation, intention, or volition. Any of these defects eventually constitute a responsibility-­undermining condition. Table 1.3 provides a summary of the annihilation and alternative theories of hell. Table 1.3.  Alternatives to the Traditional View of Hell Theory

Rejected Assumption(s)

Objections

Annihilation (God causes persons who do not go to heaven to go out of existence)

Negative Infinite Well-Being Thesis

Escapism (Everyone is able to leave hell)

No Escape Thesis

Universalism (Everyone eventually goes to heaven) Hell Is a Good Place (In hell, persons’ lives go well)

Conjunction 1. No Escape Thesis 2. Some Inhabitants Thesis Negative Infinite Well-Being Thesis

1. No Right to Punish: God does not have (or rarely has) a right to punish human beings. 2. No Infinite Ground: Human beings do not warrant an infinite punishment. 1. No Right to Punish: See above. 2. No Responsibility: If persons did not escape, this results from factors that undermine responsibility. 1. No Right to Punish: If combined with purgatory, then it assumes God has the right to punish. 1. No Responsibility: If persons did not eventually leave, this results from factors that undermine responsibility thesis 2. Part of Heaven: This makes hell look like a suboptimal part of heaven.

38 Hell

Part Five: Conclusion In this chapter, I argued that God would not send someone to hell. My argument rests on the claim that if persons go to hell, then God sends them as punishment. If God sends someone to hell as punishment, then an infinite punishment must be just. I then argued that human beings do not warrant an infinite punishment. They do not have an infinitely bad character or do an infinitely blameworthy act or set of acts. I then argued that because there is no reason to override the demands of justice, God would not impose such a punishment. I also briefly argued that he cannot impose such a punishment. Two other theories of post-­earthly existence, annihilation and escapism, are also false. Hence, I conclude that God does not send anyone to hell. Now there’s some good news.33

Notes   1 My conditions differ from the strong view of Jonathan Kvanvig because his account does not assume infinite negative suffering and does assume the purpose of hell is punishment. For his account, see Jonathan Kvanvig, The Problem of Hell (Oxford: Oxford University Press, 1993), 25.   2 This is the view found in such historically significant authors as Augustine, The City of God, trans. John Healey, ed. R. V. G. Tasker (New York: Dutton, 1972), Book 21, ch. 17 and Aquinas, Summa Theologica, trans. Fathers of the English Dominican Province (Benzinger Brothers, 1946). The traditional Christian view of hell is that God punishes some human beings by sending them to hell. Those sent exist there and cannot leave. Kvanvig, The Problem of Hell, 19, 25. My analysis of hell overlaps with this traditional thesis only insofar as it assumes that human beings exist in hell.   3 This notion is discussed in James Cain, “On the Problem of Hell,” Religious Studies 38 (2002): 355–362; Charles Seymour, “Hell, Justice, and Freedom,” International Journal of Philosophy 43 (1998): 84 n. 5 citing Thomas Flint.   4 The universalist view can be seen in Thomas Talbott, “The Doctrine of Everlasting Punishment,” Faith & Philosophy 7 (1990): 19–43; Daniel Howard-­Snyder, “In Defense of Naïve Universalism,” Faith and Philosophy 20 (2003): 343–363. For a nice discussion of universalism, see Michael Murray, “Three Versions of Universalism,” Faith and Philosophy 16 (1999): 55–68. The case for annihilation can be seen in Richard Swinburne, Responsibility and Atonement (Clarendon Press, 1989), 180–184; John W. Wenham, “The Case for Conditional Immortality,” in N. Cameron, ed., Universalism and the Doctrine of Hell (Carlisle: Paternoster Press, 1992), 161–191; Clark Pinnock, “The Conditional View,” in W. Crocket, ed., Four Views on Hell (Grand Rapids, MI: Zondervan, 1992), 135–166; John Robinson, In the End, God (New York: Harper & Row, 1968); Oscar Cullman, Immortality of the Soul or Resurrection of the Dead? (Epworth, 1958). The notion that inhabitants of hell have a positive level of well-­being can be seen in Andrei Buckareff and Allen Plug, “Escaping Hell: Divine Motivation and the Problem of Hell,” Religious Studies 41 (2005): 39–54; Andrei Buckareff and Allen Plug, “Escapism, Religious Luck, and Divine Reasons for Action,” Religious Studies, forthcoming.  5 For the Catholic tradition, see the Catechism of the Catholic Church (paragraph 1033): We cannot be united with God unless we freely choose to love him. But we cannot love God if we sin gravely against him, against our neighbor or

Hell  39 against ourselves: “He who does not love remains in death. Anyone who hates his brother is a murderer, and you know that no murderer has eternal life abiding in him.”612 Our Lord warns us that we shall be separated from him if we fail to meet the serious needs of the poor and the little ones who are his brethren.613 To die in mortal sin without repenting and accepting God’s merciful love means remaining separated from him for ever by our own free choice. This state of definitive self-­exclusion from communion with God and the blessed is called “hell.”   6 By “harm,” I mean “a setback to an interest.” This notion comes from Joel Feinberg, Harm to Self (Oxford: Oxford University Press, 1984), ch. 1.   7 The notion that the right to punish is an individual right that must be transferred to others can be seen in Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), ch. 3. The underlying idea is that the right to punishment occurs because responsible agents who wrong others forfeit their right against punishment. This forfeiture account can be seen in Vinit Haksar, “Excuses and Voluntary Conduct,” Ethics 96 (1986): 321–324; Alan Goldman, “The Paradox of Punishment,” Philosophy & Public Affairs 9 (1979): 43; A. John Simmons, “Locke and the Right to Punish,” in A. John Simmons, Marshall Cohen, Joshua Cohen, and Charles Beitz, eds., Punishment (Princeton, NJ: Princeton University Press, 1995), 238–252; Judith Jarvis Thomson, The Realm of Rights (Cambridge, MA: Harvard University Press, 1990), 365–366.   8 The notion that God is essentially all good follows from the notion that he is a maximally great being. Maximal greatness is filled out, at least in part, in terms of maximal intrinsic goodness. In addition, God can’t be contingently all-­good, because then his goodness would depend on external factors or random and arbitrary forces. This dependence is inconsistent with maximal greatness. The above point comes from “Moral Responsibility in a Maximally Great Being,” Philo 7 (2004): 97–113.  9 The notion that persons choose hell can be seen in C. S. Lewis, The Great Divorce (New York: Macmillan, 1946); Jerry Walls, Hell: The Logic of Damnation (Notre Dame, IN: University of Notre Dame Press, 1992), esp. 13; Kvanvig, The Problem of Hell; Thomas Talbott, “Providence, Freedom, and Human Destiny,” Religious Studies 26 (1990): 244. 10 This example comes from Stephen Kershnar, “The Injustice of Hell,” International Journal for Philosophy of Religion 58 (2005): 106. 11 The notion that additional well-­being to an evil person makes the world a worse place or at least does not improve it can be seen in Fred Feldman, “Adjusting Utility for Justice: A Consequentialist Reply to the Objection From Justice,” Philosophy and Phenomenological Research 55 (1995): 567–585; Thomas Hurka, “The Common Structure of Virtue and Desert,” Ethics 112 (2001): 6–31; Neil Feit and Stephen Kershnar, “Explaining the Geometry of Desert,” Public Affairs Quarterly 18 (2004): 273–298. 12 I am assuming here that person-­affecting principle in which one state of affairs is better than a second only if it makes the persons who exist in both states better off. A nice criticism of this theory can be seen in Gustaf Arrhenius, “The Person-­Affecting Restriction, Comparativism, and the Moral Status of Potential People,” Ethical Perspectives 10 (2003): 185–195. Among the problems with such a theory is that it does not satisfy transitivity. 13 There are some infinite sets (power sets) that are larger than other sets if larger is understood in terms of higher cardinality (the number of elements in a set). It is unclear how such sets are relevant to the comparison between infinite sets of objects. 14 This principle comes from Luc Lauwers and Peter Vallentyne, “Infinite Utilitarianism: More Is Always Better,” Economics and Philosophy 20 (2004): 307–330.

40 Hell 15 For defense of these principles, see Lauwers and Vallentyne, “Infinite Utilitarianism: More Is Always Better”; Peter Vallentyne and Shelly Kagan, “Infinite Value and Finitely Additive Value Theory,” The Journal of Philosophy 94 (1997): 5–26. 16 See William Lane Craig, “‘No Other Name’: A Middle Knowledge Perspective on the Exclusivity of Salvation Through Christ,” Faith & Philosophy 6 (1989): 172–188. 17 Attitudinal theories of virtue hold that virtue consists in part or whole in having certain attitudes. The notion that it consists in taking a pro-­attitude toward the right sort of object can be seen in Aristotle, Nichomachean Ethics 1099a7–21, 1104b3–1105a17, 1106b16–23, 1152b5–6, 1172a19–27; G. E. Moore, Principia Ethica (New York: Prometheus, 1988), 208–211, 216–217; W. D. Ross, The Right and the Good (Indianapolis: Hackett, 1980), 160 (one type virtuous action is action done from a desire to bring about something good); Roderick Chisolm, Brentano and Intrinsic Value (Cambridge: Cambridge University Press, 1986), 62–67; Noah Lemos, Intrinsic Value (Cambridge: Cambridge University Press, 1974), 34–37, 73–77; Robert Nozick, Philosophical Explanations (Cambridge, MA: The Belknap Press of Harvard University Press, 1981), 429–433. 18 This idea for this point comes from Fred Feldman, “Basic Intrinsic Value,” Philosophical Studies 99 (2000): 319–346 19 Talbott, “Providence, Freedom, and Human Destiny,” 239–241. 20 The idea here is that the intensity of a pleasure or pain should be proportionate to the intrinsic goodness or badness of the attitudinal object can be seen in Thomas Hurka, Virtue, Vice, and Value (Oxford: Oxford University Press, 2001), ch. 3. 21 The general claim that perfect justice does not allow human beings to suffer an infinite punishment can be seen in Marilyn McCord Adams, “Hell and the God of Justice,” Religious Studies 11 (1975): 433–447. 22 The notion that a right transfer requires uptake can be seen in Judith Jarvis Thomson, The Realm of Rights (Cambridge, MA: Harvard University Press, 1990), 322–323. 23 See Kvanvig, The Problem of Hell, 35–40. 24 A clean statement of this theory is set out in Robert Nozick, Anarchy, State, and Utopia. In some interpretations, this theory of rights can also be seen John Locke’s classic theories of property and government. See John Locke, Two Treatises of Government (Cambridge: Cambridge University Press, 1988), 285–302. 25 I owe this objection to David Hershenov. 26 The notion that human beings do an infinite number of acts that together warrant hell is discussed in Seymour, “Hell, Justice, and Freedom,” 78–79 and Adams, “Hell and the God of Justice,” 433. Also, the severity of punishment might not be a sum of the seriousness of the wrongdoings that an agent committed (perhaps measured in harm, or well-­being setback, units) because cumulative harms to one person might cause greater suffering than the sum of individual harms to different individuals. For example, it is worse for one person to lose all of his teeth than for thirty-­two different people to each lose one teeth. This point and example can be seen in Marilyn McCord Adams, “Divine Justice, Divine Love, and the Life to Come,” Crux 13 (1976–1977): 14–16. 27 Note I am assuming that fine-­grained account of acts is false. Such an account asserts that through one intentional bodily movement (for example, moving my finger) I instantiate other properties and thereby do other acts (for example, flipping the switch and scaring a burglar). If such an account were correct, then a person might be able to do an infinite number of acts. For a fine-­grained account, see Alvin Goldman, A Theory of Human Action (Upper Saddle River,

Hell  41 NJ: Prentice-­Hall, Inc., 1970), 1–19. For a denial of this account, see G. E. M. Anscombe, Intention (Ithaca, NY: Cornell University Press, 1958), 45; Donald Davidson, “Actions, Reasons, and Causes,” in his Essays on Actions and Events (New York: Clarendon Press, 1980), 4–5. 28 Marilyn McCord Adams makes a different but related point. She argues that human beings have diminished responsibility because of their psychological flaws, and as a result it would be cruel to send them to hell. Marilyn McCord Adams, “The Problem of Hell: A Problem of Evil of Christians,” Eleonore Stump, ed., A Reasoned Faith (Ithaca, NY: Cornell University, 1993), 313–314. This is particularly true given the large number of psychological traits that are influenced by genetic factors. See, for example, Steven Pinker, The Blank Slate (New York: Viking, 2002), esp. 372–378. Similarly, Thomas Talbott argues that the notion that a fully informed agent might freely choose eternal suffering for himself is incoherent. Talbott, “Providence, Freedom, and Human Destiny,” 228. 29 The notion that infinity cannot be achieved through successive addition can be seen in William Lane Craig, “The Existence of God and the Beginning of the Universe,” Truth: A Journal of Modern Thought 3 (1991): 85–96. 30 For an argument that the act that grounds punishment must precede it, see Saul Smilansky, “The Time to Punish,” Analysis 54 (1994): 50–53. 31 I owe these objections to Francis Beckwith. 32 I owe this objection to Francis Beckwith. 33 I am grateful to Andrew Cullison, Neil Feit, and Dale Tuggy for the extremely helpful comments and criticisms.

2

Hell and Abortion

Part One: Introduction In the previous chapter, I argued that God would not send people to hell. My argument is that God would send someone to hell only if justice permits it as a means of punishing them and it does not. In this chapter I argue that if God sends some people to hell, then this conflicts with the pro-­life position. The conflict occurs because a person who brings about an abortion ensures that the aborted individual goes to heaven and it is permissible to ensure that someone goes to heaven. The two chapters work together to undermine a widely held theistic pro-­life worldview for they suggest that a central theistic doctrine about hell is false but that were it true, it would undermine the pro-­life position. This chapter thus complements the first chapter in that the first argued against the Christian pro-­life worldview. This chapter argues that even if this worldview is correct, it conflicts with its pro-­life position. This is a problem because a worldview’s metaphysical and moral positions should cohere with one another. Thesis Here I argue that one specific type of Christianity conflicts with the pro-­ life position on abortion. The specific type of Christianity is that which also accepts threshold deontology and the existence of hell. I shall refer to this position as “Threshold-­Hell Christianity.” By “pro-­life,” I mean “abortion is either always wrong and should be illegal or is wrong and should be illegal except when the fetus endangers the woman’s life or health.” By “abortion,” I mean “the intentional killing or letting die of the fetus.” By “fetus,” I mean “human life from conception to birth.” Threshold deontology is the view that ordinarily moral duties consist of non-­consequentialist side-­constraints on the pursuit of the good. However, the value gained in avoiding catastrophic loss or promoting massive gain can override the side-­ constraints. On this account, in some cases it is morally permissible to do

44 Hell acts that would otherwise be wrong (for example, violence, fraud, and theft) because doing so prevents a catastrophe or promotes massive gain.1 This inquiry is relevant because many of the pro-­life groups are Christian. In particular, the Roman Catholic Church opposes abortion, and Operation Rescue labels itself as a Christian-­activist organization. It is not clear, however, if these groups adopt Threshold-­Hell Christianity. Some Christians accept the following: Some persons go to heaven, and some persons go to hell or are annihilated. Heaven is an infinite period of flourishing following an individual’s earthly existence. On the account of hell that some Christians adopt, hell is an infinite period of suffering following an individual’s earthly existence.2 Annihilation, which is distinct from hell, involves an individual permanently ceasing to exist.3 On one account of hell, hell has the following essential features: it involves an infinite amount of suffering, has some inhabitants, once an individual enters it she cannot leave, and God sends or permits individuals to go there. This account is neutral as to whether hell is a location, state of being, or something else. Except when otherwise specified, this chapter assumes that if hell exists it has these features. On a different account, hell involves everlasting suffering rather than an infinite amount of suffering. This is because each additional unit of suffering (for example, −10 well-­being units) merely adds a finite number to an already finite amount of suffering in the past. Hence, an individual never has an infinitely negative amount of well-­being. The assumption here is that the amount of suffering a person has undergone is a cumulative property had at a time and there is no time at which a person has an infinite amount of it. However, there are propositions about the future (for example, Jones will suffer each year for an infinite number of years) that entail human beings will receive an infinitely negative amount of well-­being and hell might involve the truth of such propositions. Hence, the infinite-­suffering condition avoids this objection. In adopting this view of hell, Threshold-­Hell Christianity denies three positions: universalism, escapism, and the notion that hell is an enjoyable place. Universalism asserts that everyone goes to heaven.4 The idea is that God is all loving and that a being when acting from love could not or would not annihilate people or condemn them to hell. Escapism asserts that persons in hell can voluntarily leave and go to heaven if they are in the right state or do the right thing. For example, to go to heaven a person might have to have the right sort of relationship with God or let his heart be filled with love.5 On this account, hell is a stopover before heaven. Escapism tracks the notion that hell differs from heaven in that persons are separated from God and that their joining him can only occur through voluntary choice. Some theorists assert that hell is enjoyable.6 More specifically, it asserts that persons in hell have lives worth living. On one version of this theory,

Hell and Abortion  45 time in hell is as good for a person as an equal time in heaven. On these accounts, hell is a good place to be. Escapism nicely fits with the notion that hell is enjoyable, because the idea is that God, being loving and merciful, wouldn’t want persons to suffer just because they haven’t yet chosen to join him. There are other arguments against hell. Marilyn McCord Adams argues that human responsibility is so lessened by psychological flaws that it would be cruel to subject a person to hell.7 Marilyn McCord Adams and I argue that sending someone to hell is unjust because they don’t deserve an infinite amount of suffering or because no one has a right to impose it on them.8 An opposing view is that hell is bad because it involves a separation from God can be seen in the work of C. S. Lewis and others.9 In this argument, I take no position on whether heaven or hell exists and, if either does, which account of them is correct.

Part Two: The Argument for Conflict The Argument Here is the argument for the claim that Threshold-­Hell Christians can’t be pro-­life: (P1) Threshold-­Hell Christianity is true. (P2) If Threshold-­Hell Christianity is true, then if a person aborts a fetus then she guarantees that it goes to heaven. (C1) Hence, if a person aborts a fetus, then she guarantees that the fetus goes to heaven. [(P1), (P2)] (P3) If someone guarantees that a fetus goes to heaven, then she acts permissibly. (C2) Hence, if a person aborts a fetus, then she acts permissibly (that is, abortion is always permissible). [(C1), (P3)] (P4) If abortion is always permissible, then the pro-­life position is false. (C3) Hence, the pro-­life position is false. [(C2), (P4)] I defend the argument by defending the premises.10 Defense of the Premises Premise (P1): Threshold-­Hell Christianity Is True This premise is part of the overall strategy, which is to show that if we begin by assuming that Threshold-­Hell Christianity is true, we end up concluding that the pro-­life position is false. If this can be shown, then the two positions are inconsistent.

46 Hell Premise (P2): If Threshold-­Hell Christianity Is True, Then if a Person Aborts a Fetus Then She Guarantees That It Goes to Heaven This premise rests on two points. The first point asserts that Threshold-­Hell Christianity accepts the following proposition: 1. Threshold-­Hell Christianity: Some persons go to heaven, and some persons go to hell or are annihilated. As mentioned earlier, this is a claim about the content of the Christian tradition. The second point then addresses what happens to the individual who is aborted. This principle can be seen in (2). 2. Fetuses Go to Heaven: If a fetus is killed, then it goes to heaven. The idea here is that an all-­good and all-­loving being like God would not send an innocent human being to hell or annihilate her. Instead, he would annihilate or send someone to hell only if she has voluntarily done wrong (for example, committed force, fraud, or theft, or rejected God) or lacks an attitude (for example, desire to join God). These acts or attitudes might be necessary to flourish in heaven or to warrant heaven. Individuals who are fetuses have not yet committed acts or developed attitudes.11 This idea need not support universalism because some adults are not innocent in the right way. An objection to (2) (Fetuses Go to Heaven) is that God may annihilate aborted fetuses or send them to hell because he doesn’t owe them anything. However, it’s hard to square God’s being all good with his annihilating an innocent being or sending her to hell. After all, God would be denying the individual a major good in annihilation and worse yet making her suffer in hell. Even if God isn’t morally required to send someone to heaven, it seems a character defect to avoid doing so when it costs him nothing and the other options are undeserved. If God is perfect, then he doesn’t have character defects. A Threshold-­Hell Christian might maintain that persons without the cognitive capacity are annihilated like nonhuman animals. The assumption here is that because nonhuman animals and human beings without developed consciousness are morally similar, a perfect being would treat them in a similar manner. Because nonhuman animals are not sent to heaven, human beings without cognitive capacity are also not sent. However, none of this undermines the claim that if such human beings have souls and they will thrive in heaven, then it is hard to see why God would not give them an eternity of heaven. If animals have souls who will thrive in heaven, the same sort

Hell and Abortion  47 of analysis would apply. However, if God does annihilate aborted fetuses, then my argument is unsound. In addition, sending someone to hell might be viewed as harming her rather than refusing to benefit her. In the absence of a reason, this also reflects a character defect. Whether it is a harming depends on whether sending someone to hell makes her worse off than she otherwise would be. This, in turn, depends on a person’s baseline level of well-­being, a topic we can safely bypass. Premise (P3): If Someone Guarantees That a Fetus Goes to Heaven, Then She Acts Permissibly This premise combines the previous notion that abortion sends the fetus to heaven with an account of whether it is permissible to send someone to heaven by killing her. To get this account, we begin with a general theory of right action. My conclusion is found in (3). (3) Guaranteeing Heaven: If an agent guarantees that someone goes to heaven, then she acts permissibly. This notion rests on the idea that a person acts permissibly just in case she satisfies perfect duties (duties to which someone holds a corresponding claim) or doesn’t satisfy them, but there is a consequential override and satisfies imperfect duties (duties that are not perfect). Begin with imperfect duties. In killing someone to guarantee his or her trip to heaven, the killer might still satisfy her imperfect duties. Take the paradigm imperfect duty, the duty to give to charity. This duty can be satisfied in many ways and with regard to many people. So long as the person has given enough to charity in some form or other to someone or other, she satisfies this duty. There is nothing in the context of abortion preventing the persons involved in abortions from having satisfied various imperfect duties. Move next to perfect duties. The pro-­life position often asserts that abortion infringes on a fetus’s right to life. The argument for abortion infringing on a fetus’s right to life usually rests on the notion that the fetus has a right to life because it has a valuable future, has levels of well-­being, and so on. This notion is then supplemented with the claim that the fetus has a right to be inside the woman or the claim that even though the fetus has no right to be inside the woman abortion involves a disproportionate amount of defensive force.12 Even if abortion infringes on a fetus’s right to life, it still seems justified if doing so guarantees that the aborted individual spends an eternity in heaven. After all, we often think that it is okay to infringe on someone’s right as a way of avoiding catastrophic losses.13 For example, consider the following cases. To keep the cases simple, assume that there is no afterlife.

48 Hell Hotwire There is a car accident, and a three-­year-­old black girl’s arm is cut off. If reattachment surgery doesn’t begin soon, she will permanently lose the arm. A bystander knows the only way to get the child to the hospital in time is to hotwire a parked car. The bystander knows the car owner and in particular that he is a member of the Aryan Brotherhood, a vicious racist organization, and would never consent to allowing his car to be used to help the girl. Intuitively, it seems permissible to hotwire the car. Ticking Time Bomb A terrorist plants a nuclear bomb in the middle of New York City. He plans to blow it up in the middle of the day when the city has millions of commuters in addition to its residents. He is tortured and still won’t disclose its location. The only thing that will make him talk is making him witness the mutilation and killing of one son and a threat to do the same to his others. Intuitively, it seems permissible to do this.14 In both cases, it seems permissible to infringe on someone’s moral right because this is necessary to avoid a catastrophic loss, even though it’s a finite one. However, the gains in both cases are less than the expected gain in the case in which a woman or physician guarantees an individual’s future in heaven. That is because the catastrophic loss avoided is infinite. Specifically, it is the product of some percentage (for example, 50%) and an infinite loss (for example, infinite utils lost if an individual does not go to heaven). Hence, if the consequential override is satisfied in Hotwire and Ticking Time Bomb, and it seems that it is, then it is satisfied when an agent guarantees that someone goes to heaven. Hence, when a person aborts someone to guarantee that the latter goes to heaven, she fails to satisfy a perfect duty to the individual in the womb but instead satisfies the consequential override. On this account, then, because a person who brings about an abortion guarantees that another goes to heaven and because a person who guarantees that another goes to heaven acts permissibly, abortion is permissible. There are a number of challenging objections to (P3). For ease of exposition, I present the argument for the last premise and then return to the objections. Note that this defense of threshold deontology has been at most a brief sketch and perhaps not one convincing to many pure deontologists or consequentialists. If so, then my argument should be understood as merely assuming threshold deontology is true and, hence, not an argument that should trouble Christians who reject this doctrine. Premise (P4): If Abortion Is Always Permissible, Then the Pro-­Life Position Is False This premise is an analytic truth. The background assumption here is that by “pro-­life position,” I mean “abortion is either always wrong and should

Hell and Abortion  49 be illegal or is wrong and should be illegal except when the fetus endangers the woman’s life or health.” One concern about my argument is that it doesn’t show that the state should permit abortion. It shows that the pro-­life position is wrong only because the position is a conjunction: abortion is wrong and should be illegal. However, the argument for legality is a quick one. Consider the following proposition. (1) Legality Principle: If an act is morally right, doesn’t directly bring about net harm for anyone, and makes the world better, then it should be legal. This principle is plausible because it says that regardless of whether the criminal law is justified by the value of enforcing morality, protecting against harm, or maximizing the good, the state should permit acts that do all three.15 If the earlier argument is sound, abortion does all three. Here I am reinterpreting John Stuart Mill’s harm principle so that it asserts that the prevention of direct and net harm to others is a good reason, and the only good reason, for state coercion. The directness condition is designed to screen out third-­party effects that regularly accompany voluntary and involuntary interactions. The net condition is designed to screen out beneficial activities that contain some harm (for example, the pain of a medical injection). If we just focus on harm rather than directly imposed harm, then the issue gets murky. If an abortion leads to more abortions, it might save more individuals. If it leads to greater violence and this leads to persons being annihilated or sent to hell when they later might have been saved, then it might cause infinite harm to multiple persons.16 We then have issues relating to the number of individuals an agent causes to go to heaven, hell, or annihilation; the relevance of desert; and how infinitely good and bad outcomes are to be compared. This involves myriad issues that I sidestep here. In some accounts, abortion might lead to more abortions or violence by affecting the social fabric. It might be objected that what is legally permitted should not depend on religiously grounded claims, even ones known to be true.17 This position strikes me as implausible when religiously grounded facts and knowledge concern significant costs and benefits. However, if it is true, then the preceding argument for abortion is irrelevant with regard to whether the state should permit abortion. Objections to Premise (P3) Objection 1: This Argument Rests on an Incorrect Theory of Right Action

An objection to (P3) is that my account of a right action is false. In particular, the objector might claim that what makes an action right is that God permits it, someone acts from a particular motivation, or the agent’s perfect

50 Hell duties are satisfied (no consequential override). The objector next asserts that persons who bring about abortions don’t satisfy whichever criterion is the correct one. The divine command theory asserts that what makes an act obligatory and good is that God commands it and what makes an action wrong or bad is that God forbids it. However, there are two standard problems with it. The first problem is that it makes morality arbitrary because God has no reason to forbid a type of action (for example, rape) rather than permitting it. The second problem is that it threatens to make religious tenets like “God is all-­good” trivially true because the tenet translates to “God is commanded by God.” There are some responses in the literature to these criticisms.18 If they succeed, then my argument is unsound. A variant of this objection is Kenneth Himma’s claim that abortion is a sin against God.19 If abortion is a sin against God, then either there is an independent reason that it is wrong or it is wrong because God forbade it. If there is an independent reason that it is wrong, then the reason is likely that it wrongs the fetus, and we have seen that this wrong is overridden. If abortion is a sin merely because God forbade it, then this works only if the divine command theory survives the preceding objections. The motivational theory of rightness asserts that an act is morally right if and only if the agent acts from a certain motive. The motive might be duty or a correct emotion like love or caring. One difficulty for this is that the person who pays for or performs an abortion might do so out of love or caring for her fetus. A parent who believes that abortion is punishable by eternity in hell and still has an abortion to ensure that the aborted individual goes to heaven acts altruistically. Hence, if the motivational theory of rightness is true, then some cases of abortion are right. Leaving this aside, the motivational theory of a right action is most likely mistaken. A duty-­based account will be viciously circular if it asserts that an act is right if and only if it is done from duty and something is done from duty if and only if what is right motivates an agent’s actions. A motivation-­ based account also clashes with our intuitions. It intuitively seems mistaken to run together the rightness and goodness of an action. They are different properties. Rightness is a function of an external property (what is done to others) whereas goodness is a function of an internal property (the agent’s motive). This is what allows us to say that a person did the wrong thing but wasn’t blameworthy for doing so or vice versa. Consider Mark Murphy’s objection that it is presumptuous to rely on God’s gracious gift of eternal life.20 There are different ways to understand this argument. If Murphy is saying that this is wrong because of what motivates the person who solicits or performs an abortion, then his argument is an instance of the motivational theory of right action and fails for that reason. If the motivational theory of a right action is mistaken, then what the agent knows is probably not relevant to an act’s rightness. On my account, whether an act is known to bring about a certain result is a fact that is

Hell and Abortion  51 relevant to blameworthiness, not rightness. If this is correct, then the concern that abortion is wrong, even when it prevents a catastrophic loss, because the agent does not know (or knows but without strong enough evidence) that his act will prevent such a loss is beside the point. If there is a knowledge requirement for rightness, then my argument is in trouble. If this knowledge requirement is present, then there is a problem for my theory in cases in which the agent does not know (or knows but without strong enough evidence) a number of propositions, such as that God exists, some people go to hell, and aborted fetuses go to heaven. The notion that perfect duties are never overridden by the avoidance of catastrophic consequences might be seen in the intuition that there is no amount of catastrophic loss so great that its avoidance justifies the rape and torture of a prepubescent child. However, I don’t share these intuitions, and I doubt many others do. Less stringent rights are not absolute. For example, it intuitively seems that stealing a cheap candy to save someone from dying from insulin shock is, all things considered, permissible. Even stringent rights do not intuitively seem to be absolute. For example, consider Ticking Time Bomb. In addition, on some accounts of threats, killing a fetus to protect the life or health of a woman is a permissible infringement on the fetus’s right to life. If this is correct, then the notion that rights are absolute is mistaken.21 Even though this is a life-­versus-­life trade-­off, such a trade-­off is still impermissible with regard to an absolute right. However, if one holds that threats forfeit their rights with regard to the threatened person, then the pro-­life proponent need not allow for such a conflict of rights. However, if one, in the end, holds that rights are absolute, can’t conflict, and that abortion infringes on a fetus’s rights, then (3) is unsupported. A Kantian pro-­lifer might reason along these lines. I leave aside the issue of the precise connection between the notion that rights are absolute and that a person should never be treated merely as a means. The notion that rights don’t conflict is at odds with the view that there are both positive and negative rights and that rights consist of waves of duty that can and often do conflict. An illustration of the way that positive rights will conflict with negative ones can be seen in Robert Nozick’s discussion of how rights to equality will conflict with the substructure of particular rights to things.22 Objection 2: This Argument Is Too Strong Because It Applies to All Cases of Killing Innocent or Good People23

This argument focuses on abortion because of the enormous amount of literature on the topic, its relevance to public policy, and the fact that fetuses are paradigmatic innocents and ones we know to be innocent. An objection is that this argument could just as easily be used to support infanticide and, perhaps, even murdering people who if they died now

52 Hell would go to heaven. This is correct. If the reader finds the focus too narrow, please substitute the phrase “killing individuals who will go to heaven” wherever the word abortion appears. I focus on the narrow issue for abortion because this relates to a public policy issue in which there is an intersection of a widely held religious belief about hell, a plausible ethical theory (threshold deontology), and a procedure (abortion). More generally, if this is what Threshold-­Hell Christianity entails and if it’s absurd, then so is Threshold-­Hell Christianity. However, this response fails if there are independent reasons to accept that Threshold-­ Hell Christianity is true. This gets complex if persons have different levels of well-­being in hell. For example, consider the case when a person kills a woman, A, and her fetus. Assume A and the individual who was her fetus both had a 50% of going to hell. If A has −10 units of well-­being per year in hell and the individual who was her fetus would have had −1 unit per year, then one might think that B brought about a worse result. Problems also arise if there are different probabilities that the person who was killed would have been annihilated or gone to hell. This might happen, for example, if A had a 5% of going to hell whereas the individual who was her fetus had a 50% of going to hell. For this second example, assume that both would have had −1 unit of well-­being per year in hell.24 The objector might reply here that my argument should focus on the ethics of homicide and the reasons why Christians and others see homicide as a fundamental evil. I don’t see why. Given the widespread nature of the above view of heaven and hell and the plausibility and wide acceptance of threshold deontology, it is an interesting topic to see whether the two positions are compatible. Whether my argument shows that the Threshold-­Hell Christian view of murder is inconsistent is also an interesting topic but not one that endangers my argument. One response is that of Kenneth Himma. Himma responds that such killings might harm society by diminishing the respect for human life.25 This response is unconvincing for two reasons. The same might be true of abortion and hence this response would undercut his argument for the liberal position on abortion. In addition, except in the context of a consequential override, focusing on harm rather than injustice (that is, a moral-­right infringement or failure to satisfy a perfect duty) is incorrect. In Hohfeldian terms, a claim is a duty owed by one individual to another. I will assume that a claim and a perfect duty are the same thing from two different perspectives. By “harm,” I mean “a setback to an interest.”26 Under this definition, there are cases when a person produces a net harm and still acts permissibly. This might happen, for example, when one storeowner’s greater acumen drives a second out of business. This might involve a net harm if the second is the sole breadwinner for a large family. If so, then the first harmed the second but didn’t act unjustly toward him. Even if harm is understood in causal terms, there are still cases of acts that are both harmful and just.

Hell and Abortion  53 For example, a bank official who forecloses on the second storeowner’s property might act permissibly even if his doing so produces a net harm. A second response can be seen in the appendix to this chapter. Objection 3: This Argument Rests on a Misunderstanding of How the Consequentialist Override Works

A third objection is that the intuitive support for the consequential override does not support (3). A consequential override occurs if and only if the justification of an act based its leading to the avoidance of a catastrophic loss (and, perhaps, the bringing about of immense gain) trumps (overrides or undermines) the justification based on a non-­consequentialist constraint. I think that only type of non-­consequentialist constraint is a right-­infringement, but nothing in this definition or my argument rests on this claim. The objector might claim that even if we adopt this account of an override, it doesn’t apply to (3). We might agree there is an override in cases like Hotwire and Ticking Time Bomb, because the agent’s act is necessary and sufficient for avoiding the loss. However, in the case when a person kills a fetus, the killer merely provides a sufficient condition for the fetus to go to heaven. However, the objector might argue, merely providing a sufficient condition doesn’t generate the required gain or loss, because the desired result might have otherwise occurred. For example, in a parallel case to Hotwire, the bystander acts wrongfully if he takes the racist’s car when he could have gotten the girl to the hospital just as quickly by taking his own car. This objection fails because increasing the likelihood that someone goes to heaven has an infinite value to the recipient. Let us assume that because individuals have libertarian freedom, the future is open. Because it is open, future contingent events have different likelihoods of occurring. If this is correct, then one can provide a gift by increasing the likelihood that an outcome occurs. For example, consider when a woman, Karen, has a 1% chance of getting $1 million and a 99% chance of getting nothing. Karen’s father, John, changes the chance of her getting the $1 million to 100%. John has given Karen something of value (specifically, a gift worth $990,000) even though his actions are not necessary for the desired outcome. Similarly, if, as a fetus, Karen stands a chance of going to hell or being annihilated and John eliminates it, he has given her something of great value. Because the value is the product of the increased probability and an infinite gain, it has infinite value. Even if one requires that the increased chance of going to heaven be significant, the argument still works in those cases where such an increase occurs. If the future is not open, then there is at present a right answer about whether an individual will go to hell if another does not intervene. The future is not open if determinism is true. By “determinism,” I mean that “the state of the world at an earlier time and the laws of physics entail the state of the world at any later time.”27 If there are such right answers, then my thesis will have to be qualified in the following way:

54 Hell (3a) Guaranteeing Heaven: If an agent guarantees that someone goes to heaven who would otherwise not go, then she acts permissibly. My argument would then have to be restricted to this type of case. There is an issue as to whether an agent would know that she is in the antecedent condition, but this is relevant only if rightness depends on what the agent knows. Objection 4: The Argument Fails to Recognize That if Threshold-­Hell Christianity Is True, Then It Is Wrong for God to Guarantee That All Human Beings Go to Heaven

A fourth objection is that if Threshold-­Hell Christianity is true, then there is a sound argument that the traditional doctrine of hell is morally permissible. The only sound argument there could be for the claim that the traditional doctrine of hell is morally permissible will include a premise that it is morally wrong for God to guarantee that all human beings go to heaven. Therefore, the objector concludes, if Threshold-­Hell Christianity is true, then it is morally wrong to guarantee that all human beings go to heaven. If it is wrong for God to guarantee that all human beings go to heaven, the objector continues, then (P3) is false. However, even if it is true that it is morally wrong for God to guarantee that all human beings go to heaven, it does not follow that it is wrong for him to guarantee that all aborted fetuses go to heaven. Nor does it follow from this that a human being may not do all he can to ensure that all human beings go to heaven. This is because God has the power to change an individual’s decision-­making and will, whereas a human being does not have this power. The objector might respond that the value of autonomy explains why it is wrong for God to guarantee that all human beings go to heaven. The objector’s idea is that autonomy is incomparably important. As a result, God should allow individuals to gain it and respect their exercise of it. If he were to send fetuses or children to heaven, then they would not develop autonomy or, if they did, sending them to heaven independent of their choices would fail to respect it. The same argument would then explain why adults may not abort fetuses. The problem is that autonomy is commensurate. In some cases, it is rational to trade off autonomy for other values. For example, if persons cease to exist at the end of earthly life, it still seems that a person living in pain might rationally decide that suicide is in his interest because avoidance of further pain outweighs future autonomy. It is also rational to trade off degrees of autonomy. For example, a person might rationally get drunk or high despite the fact that doing so involves temporarily lessening autonomy in return for pleasure. Others rationally choose jobs that endanger intelligence or education in return for pleasure, money, or to maintain a personal relationship.

Hell and Abortion  55 For example, a person might rationally pursue a career in boxing because he loves it, despite the increased chance of lessened autonomy via brain damage. If autonomy is a commensurate value, then benefiting someone might involve sacrificing his autonomy, at least for a temporary period, to guarantee an ecstatic eternity. Sending them to heaven might be just such a case. Whether this actually occurs depends on whether fetuses develop into autonomous beings in heaven and what happens to them if they don’t go to heaven. In addition, if fetuses develop into autonomous beings in heaven and if God annihilates persons who do not make choices that warrant heaven, then sending a fetus to heaven maximizes their expected autonomy-­value. Here autonomy-­value is the product of a person’s autonomy-­intensity (degree per unit of time) and duration (units of time). A similar thing is true if souls in hell lose their autonomy or suffer to such a degree that they are unable to exercise autonomy. Objection 5: The Argument Fails Because There Are Different Levels of Heaven

A fifth objection is that the benefits of heaven come in degrees according to how one lived his earthly life. The objector continues that even if fetuses go to heaven, their lives in heaven are not as good as they could have been. They are good enough that God does nothing wrong by setting up the world in this way, but God gave everyone an opportunity to have a better lot in heaven, and he gave us significant power to take that away from people. We do wrong by aborting if this scenario is true. The response to this objection is that this is true only if the abortion-­ related costs to the individual exceed the benefits. Here are the costs and benefits to the aborted individual: 1. Abortion-­Related Benefit: (value of life in heaven following abortion) − [(probability of individual going to hell or being annihilated if not aborted) × (value of life in hell or following annihilation)] 2. Abortion-­Related Cost: [(probability of individual going to heaven if not aborted) × (value of life in heaven if not aborted)] − (value of life in heaven following abortion) It is unclear that the cost is greater than the benefit. However, if it is, then my argument fails. There are a number of problems with this comparison. One problem is whether to focus on total versus average benefits and costs. If we focus on the total and both are infinite amounts, then the two will be the same size, and the objection will succeed. However, focusing on total well-­being is problematic insofar as our intuitions favor a life consisting of a century of ecstasy rather than one consisting of drab eternity, that is, an eternal life each year of which is barely worth living.28

56 Hell A second problem is that if the fetus is annihilated, then it is unclear being following annihilation. This is whether he has any level of well-­ because a person has a level of well-­being at a time only if he exists and by definition a person does not exist after he has been annihilated. Some persons implicitly argue that the value for a person who previously existed during the time he otherwise would have existed is zero.29 One argument that might be given in support of this is that persons are rationally indifferent between nonexistence and existence with a zero level of well-­being. A third problem is that if the future is open, then it is not clear that there is a probability as to what a person would have chosen had he not been aborted. One might think that probabilities do not apply to free actions. Objection 6: The Argument Fails Because the Person Doing the Abortion Does Wrong Even Though It Benefits the Fetus

An objector might concede that abortion guarantees that a fetus goes to heaven. However, she might still claim that it does not follow that the person who killed the fetus and her conspirators did the right thing. She might claim that they still acted wrongly and in so doing warrant hell. Hence, the objector concludes, abortion sends one individual to heaven only by guaranteeing that another, the sender, goes to hell. The problem with this objection is that it is hard to see why the person performing (or ordering) the abortion warrants hell. This person ensured that another would receive an infinitely good life and did so, at least in some cases, out of love for that person. We normally think that if one person intentionally does a permissible act and does so from a good motive, then her act is right and, perhaps, good and that she is praiseworthy of doing it. Someone who is praiseworthy for doing a right act does not warrant hell. On a side note, acts by themselves do not intuitively seem to be good or bad. Objection 7: The Argument Fails Because Abortion Involves Providing a Benefit Rather Than Avoiding a Harm

One might object that paternalistic objections apply because abortion at most involves benefitting a fetus, rather than preventing harm to it and that this is a relevant difference. This objection is unsuccessful. First, when it comes to consequentialist overrides, providing a benefit can override constraints and justify paternalism even if harm prevention provides (or usually provides) a stronger justification for these things. For example, we would think it okay to steal medicine from a hospital to save a thousand children even though this is a case of providing a benefit. Second, whether this is a provision of a benefit is unclear. Imagine that God sends people to hell. Thus, the child will grow up to be someone who is harmed, in part, by God’s decision, and through abortion we prevent this harm. This seems to be a

Hell and Abortion  57 case of preventing harm. Imagine a woman is about to make a choice to get very drunk at a Hell’s Angels’ party and put herself in severe danger of rape. We prevent her from attending the party. This might be viewed as preventing harm, and this might be analogous to what abortion does.

Part Three: Some Concerns There are some concerns that have accompanied this chapter and warrant a response. One concern here is that this chapter does not establish that Threshold-­Hell Christianity somehow captures the beliefs that are held by many Christians who oppose abortion. However, the purpose of this chapter is to investigate whether this plausible position is consistent with the pro-­ life position. Whether or not the largest Christian movements, or perhaps those that oppose abortion, hold this position is a separate issue and not part of my argument. I make no claim about whether any Christian accepts Threshold-­Hell Christianity. In any case, there is some reason to believe that Threshold-­ Hell Christianity is held among some Christians, including some who oppose abortion. This position is held by anyone who accepts the following: Christianity, some persons go to hell or are annihilated, and threshold-­hell deontology and rejects the following: universalism, escapism, and the claim that hell is an enjoyable place. It is obvious that some people are Christians. The belief in permanent hell or annihilation and that this is bad for those who go there or are annihilated is part of the Catholic and many Protestant traditions. In the King James version, biblical references to post-­earthly existence can be seen in Matthew 13:49–50, 25:41, and 25:46. Post-­earthly existence is found in three famous creeds: the Apostles’, the Nicene, and the Athanasian. Mormonism also accepts it. The notion that many will not be saved can be seen in Luke 13:23 and Matthew 7:13–14. In addition, the New Testament appears to refer to hell. For example, there are references to “everlasting destruction” (Thess. 1:9), “eternal fire” (Jude 7), and “tormented day and night for ever and ever” (Rev. 20:10). Many noteworthy Christian philosophers also accept that some persons go to hell or are annihilated and that this is bad for them. See, for example, C. S. Lewis and Richard Swinburne. For the Catholic tradition, see the Catechism of the Catholic Church (paragraph 1033): We cannot be united with God unless we freely choose to love him. But we cannot love God if we sin gravely against him, against our neighbor or against ourselves: “He who does not love remains in death. Anyone who hates his brother is a murderer, and you know that no murderer has eternal life abiding in him.”612 Our Lord warns us that we shall be separated from him if we fail to meet the serious needs of the poor and the little ones who are his brethren.613 To die in mortal sin without repenting and accepting God’s merciful love

58 Hell means remaining separated from him forever by our own free choice. This state of definitive self-­exclusion from communion with God and the blessed is called “hell.” My argument, then, is a problem only for individuals and religions that accept that abortion is wrong and that aborted fetuses go to heaven. One church that neither accepts nor rejects the latter claim is the Catholic Church. The Vatican’s International Theological Commission, with the approval of Pope Benedict, recently issued its finding that allowed for the hope that unbaptized babies go to heaven. This decision appeared in a report titled “The Hope of Salvation for Infants Who Die Without Being Baptized.” This finding has been interpreted to apply to fetuses. In addition, the Catholic Church is committed to the similar status of fetuses and babies because both are created in the image and likeness of God and hence are sacred. See, for example, Catholic Catechism 2319. The Catholic Church is one of the leading opponents of abortion. It excommunicates Catholics who procure or participate in an abortion, assuming they know of the penalty when they helped to bring about the abortion. Before he was the current pope, Cardinal Joseph Ratzinger wrote that priests should warn politicians who support abortion that they avoid taking communion or risk being denied the Eucharist. A second concern is that Christians don’t accept threshold deontology. Here are my responses to this concern. First, rank-­and-­file Christians almost certainly do accept this. For example, I doubt we could find many Christians who would assert that one should not steal a candy bar in order to save a child from fatal diabetic shock. Second, to the extent that they don’t accept it, they probably haven’t thought about this sort of case. Third, on some interpretations of the doctrine of double effect, and to my mind the correct one, there is a type of threshold deontology going on. The doctrine of double effect allows one to violate a moral norm (for example, infringing on a moral right) if doing so is unintended and brings about better results in some sense. Note that it is still prima facie wrong to violate the moral norm but that the unintended way in which the act is done in part explains why it may be done. Fourth, even if Christians don’t accept threshold deontology and the doctrine of double effect does not commit them to it, they still should accept it. A proponent of the doctrine of double effect might claim that I am wrong about the doctrine. Specifically, he might note that it prohibits someone from intentionally violating a moral law. It does not allow someone to do evil that good may come of it.30 As noted earlier, though, the doctrine of double effect would prohibit actions that prevent catastrophic losses. For example, it would prohibit covertly putting birth control pills into Hitler’s mother’s drink on the day that she would have conceived Hitler even if doing so would prevent the tragic losses of World War II. This is implausible.

Hell and Abortion  59 In addition, if the moral law that constitutes the first step in assessing an action under the doctrine of double effect is not a prohibition on infringing someone’s moral rights, then the doctrine does not allow rights to play a central role in morality. This is at odds with how we often think of morality. If the moral law that may not be intentionally violated focuses on moral rights, then it is not clear that why intentionally is relevant given that one can take actions that foreseeably, but not intentionally, infringe people’s rights. Furthermore, if the moral law does not focus on moral rights, then it is odd that infringing a moral right is sometimes permissible, but doing so intentionally is not, that is, that the intentionality-­condition is so much stronger than the right-­condition. This is made even more obscure if what makes an action wrong is primarily a feature of the person toward whom the agent acts rather than a feature of the agent. The commonsense explanation of why murder, rape, and battery are wrong focuses on what is done to the victim (consider, for example, her loss of control or sovereignty over her life, the setback to her dignity, or her suffering). These intuitively seem to be right-­based reasons. Focusing on intentionality shifts the primary wrong-­making feature from the person acted on to the actor. This is also implausible. A third concern is that if the argument in this chapter is successful, then it has a stronger conclusion than is my focus, namely, that we are morally obligated to terminate virtually all pregnancies and to kill infants and others who have what is necessary to be saved. This chapter takes no position on this theory. I find the narrower issue interesting enough because of the enormous literature on abortion, its relevance to public policy, and the fact that fetuses are paradigmatic innocents and ones we know to be innocent.

Part Four: Abortion and Other Views of Hell One response to my argument is that Threshold-­Hell Christianity is false and that, instead, universalism, escapism, or the hell-­is-­an-­enjoyable-­place theory is true. Note that this doesn’t conflict with my argument because I am merely trying to show the conditional claim that Threshold-­ Hell Christianity conflicts with the pro-­life position.

Part Five: Conclusion In this chapter, I’ve argued that Threshold-­Hell Christianity conflicts with the pro-­life position on abortion. I argued that a person who brings about an abortion guarantees that the aborted individual goes to heaven and that it is morally permissible to guarantee someone goes to heaven. It follows that if Threshold-­Hell Christianity is true, then abortion is morally permissible. But if abortion is morally permissible, then the pro-­life position is wrong. Hence, Threshold-­Hell Christianity entails the falsity of the pro-­life position.

60 Hell

Part Six: Appendix A second response is that adults don’t trigger the consequential override because of the nature of intrinsic value. A plausible version of this response rests on three assumptions. First, the consequential override is a function of gains and losses in intrinsic value. Second, intrinsic value is in part a function of desert-­adjusted well-­being. Third, it is infinitely better for an innocent to go to heaven than for an adult to do so. The idea behind this third assumption is that a heaven-­bound adult human being has a desert level. As a result, there are limits on the intrinsic value of her overall life no matter how well it goes. The limits are finite. In contrast, innocents have no such limits. This is because each additional period of their flourishing makes the world a better place. A parallel thing is true of how his suffering makes the world worse. As a result, the consequential override as it relates to guaranteeing heaven works for fetuses but not adults.31 The idea behind these limits is as follows. For most, if not all, human beings, it seems that there is no amount of well-­being that we could give to a person with slightly positive desert that would outweigh the value of billions of saints getting what they deserve. Instead, the former has a limit that is approached in an asymptotic manner.1 For example, an average sinner with slightly positive desert and with +10 units of well-­being over his lifetime (WB) might generate +10 units of intrinsic value (IV). If he has +20 WB this might generate +15 IV, +40 generates +17.5 IV, and so on. A similar thing is true of his suffering.32 A different rule applies to innocents. This is because when it comes to value, the separateness of lives does not matter. The idea here is the world is equally good when there are two innocents who each live one hundred years and have +10 WB as when one innocent lives two hundred years and has +20 WB. The idea for this point comes from Robert Nozick’s suggestion that we should take a Kantian approach to persons and a utilitarian approach to animals and that it is the separateness of lives that explains Kantian duties.33 The success of this response rests on the plausibility of these premises and the notion that while in heaven, individuals who were aborted don’t develop into beings with desert levels (or, more specifically, beings with a finitely positive desert level).

Notes  1 This view can be seen in Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), 30n; Michael S. Moore, Placing Blame (Oxford: Clarendon Press, 1997), 719–724; Thomas Nagel, “War and Massacre,” in his Mortal Questions (New York: Cambridge University Press, 1979), 53–74, esp. 62. Arguments against this position can be seen in Larry Alexander, “Deontology at the Threshold,” San Diego Law Review 37 (2000): 893–912; Anthony Ellis, “Deontology, Incommensurability and the Arbitrary,” Philosophical and

Hell and Abortion  61 Phenomenological Research 52 (1992): 855–875. Their objections focus on the difficulty in identifying the threshold, either as an absolute level or as a sliding scale. For an interesting discussion of this theory, see Shelly Kagan, Normative Ethics (Boulder: Westview, 1998), 78–84.   2 This is the view found in such historically significant authors as Augustine, The City of God, trans. John Healey, ed. R. V. G. Tasker (New York: Dutton, 1972), Book 21, ch. 17 and Aquinas, Summa Theologica, trans. Fathers of the English Dominican Province (New York: Benzinger Brothers, 1946). The Threshold-­Hell Christian view of hell is that God punishes some human beings by sending them to hell. Those sent exist there and cannot leave. Jonathan Kvanvig, The Problem of Hell (New York: Oxford University Press, 1993), 19, 25. By this, I mean to be neutral on theories of hell that allow that persons might suffer a finite amount of harm over an infinite amount of period because the harm approaches a limit. James Cain, “On the Problem of Hell,” Religious Studies 38 (2002): Charles Seymour, “Hell, Justice, and Freedom,” International Journal of Philosophy 43 (1998): 84 n. 5 citing Thomas Flint.   3 Richard Swinburne, Responsibility and Atonement (Oxford: Clarendon Press, 1989), 180–184; John W. Wenham, “The Case for Conditional Immortality,” in N. Cameron, ed., Universalism and the Doctrine of Hell (Carlisle: Paternoster Press, 1992), 161–191; Clark Pinnock, “The Conditional View,” in W. Crocket, ed., Four Views on Hell (Grand Rapids, MI: Zondervan, 1992), 135–166.   4 Daniel Howard-­Snyder, “In Defense of Naïve Universalism,” Faith and Philosophy 20 (2003): 343–363. For a nice discussion of universalism, see Michael Murray, “Three Versions of Universalism,” Faith and Philosophy 16 (1999): 55–68.   5 This theory can be seen in Andrei Buckareff and Allen Plug, “Escaping Hell: Divine Motivation and the Problem of Hell,” Religious Studies 41 (2005): 39–54 and Andrei Buckareff and Allen Plug, “Escapism Redux,” forthcoming.   6 This view can be found in Buckareff and Plug, “Escapism Redux.”   7 See Marilyn McCord Adams, “The Problem of Hell: A Problem of Evil for Christians,” Eleonore Stump, ed., A Reasoned Faith (Ithaca, NY: Cornell University Press, 1993), 313–314.   8 The former can be seen in Marilyn McCord Adams, “Hell and the God of Justice,” Religious Studies 11 (1975): 433–447, the latter in Stephen Kershnar, “The Injustice of Hell,” International Journal for Philosophy of Religion 58 (2005): 103–123.   9 See C. S. Lewis, The Great Divorce (New York: Macmillan, 1946); Jerry Walls, Hell: The Logic of Damnation (Notre Dame, IN: University of Notre Dame Press, 1992), esp. 13; Thomas Talbott, “Providence, Freedom, and Human Destiny,” Religious Studies 29 (1993): 244. 10 Foster Digby argues that religious opponents of abortion have to show that aborted individuals get sent to hell. Foster Digby, “Abortion Is the Issue From Hell,” Free Inquiry 16 (1996): 24–25. This is mistaken since all that needs to be shown is that aborted individuals don’t get sent to heaven. Annihilation will also result in an infinite loss. The notion that abortion increases the likelihood that an individual goes to heaven can also be seen in Richard Schoenig, “Abortion, Christianity, and Consistency,” Philosophy in the Contemporary World 5 (1998): 32–37, esp. 33–34. Schoenig doesn’t say why killing a fetus is morally right. Specifically, he doesn’t address whether it is the women’s or physician’s motives or whether they have a right to kill the fetus. The notion that because abortion doesn’t harm the fetus it should be morally protected even if it is morally wrong can be seen in Kenneth Einar Himma, “No Harm, No Foul: Abortion and the Implications of Fetal Innocence,” Faith and Philosophy 19 (2002): 172–194.

62 Hell 11 Richard Schoenig points out that Jesus had a special concern for children. Schoenig, “Abortion, Christianity, and Consistency,” 33 citing Luke 19: 15–16; Matt 18:1–6; Mk. 9:36–39, 10:13–16. He then implicitly argues that because fetuses are relevantly similar to children, Jesus also has a special concern for them. Ibid., 33. 12 The notion that the fetus has a right of life is implicit in Don Marquis and John Noonan. Don Marquis, “Why Abortion Is Immoral,” Journal of Philosophy 86 (1989): 183–202; John Noonan, The Morality of Abortion: Legal and Historical Perspectives (Cambridge: Harvard University Press, 1970), 51–59. The notion that the fetus has a right to be inside the woman can be seen in Francis Beckwith, “Arguments From Bodily Rights: A Critical Analysis,” in Louis P. Pojman and Francis Beckwith, eds., The Abortion Controversy: 25 Years After Roe v. Wade: A Reader, 2nd ed. (Belmont: Wadsworth, 1998), 132–150. The notion that abortion uses a disproportionate amount of force can be seen in Baruch Brody, “Thomson on Abortion,” Philosophy and Public Affairs 1 (1972): 335–340. Challenges have been raised to these notions. For implicit and explicit challenges to the notion that the fetus has a right to life on the basis of its having a valuable future, see Alastair Norcross, “Killing, Abortion, and Contraception,” Journal of Philosophy 87 (1990): 268–277; Gerald Paske, “Abortion and the Neo-­Natal Right to Life: A Critique of Marquis’s Futurist Argument,” in Louis P. Pojman and Francis Beckwith, eds., The Abortion Controversy: 25 Years After Roe v. Wade: A Reader, 2nd ed. (Belmont: Wadsworth, 1998), 361–371; Peter McInerney, “Does a Fetus Already Have a Future-­Like-­Ours,” Journal of Philosophy 87 (1990): 264–268. Michael Tooley and Mary Anne Warren reject the notion that fetuses have rights. Michael Tooley, “Abortion and Infanticide,” Philosophy and Public Affairs 2 (1972): 37–65; Mary Anne Warren, “On the Moral and Legal Status of Abortion,” in James Sterba, ed., Morality in Practice, 6th ed. (Belmont: Wadsworth Thomson Learning, 2001), Vail reject the notion 129–138. Judith Jarvis Thomson and David Boonin-­ that abortion infringes on the fetus’s right to life. Judith Jarvis Thomson, “A Defense of Abortion,” Philosophy and Public Affairs 1 (1971): 47–66; David Boonin-­Vail, “A Defense of ‘A Defense of Abortion’: On the Responsibility Objection to Thomson’s Argument,” Ethics 107 (1997): 286–313. For the purpose of this argument I’ll assume that one of the arguments for the injustice of abortion is sound. 13 These cases involve consequences justifying harm. Thus, whether abortion benefits or avoids harm to an individual who was a fetus is not relevant to my argument. For a debate in which this is relevant, see Himma, “No Harm, No Foul: Abortion and the Implications of Fetal Innocence,” 172–194; Mark C. Murphy, “Pro-­Choice and Presumption: A Reply to Kenneth Himma,” Faith and Philosophy 20 (2003): 240–242; Kenneth Himma, “Harm, Sharm, and One Extremely Creepy Argument: A Reply to Mark C. Murphy,” Faith and Philosophy 21 (2004): 250–255. 14 This example can be seen in Henry Shue, “Torture,” Philosophy and Public Affairs 7 (1978): 124–143, esp. 141; Michael Levin, “The Case for Torture,” Newsweek, June 7, 1982; Fritz Allhoff, “A Defense of Torture: Separation of Cases, Ticking Time-­Bombs and Moral Justification,” International Journal of Applied Philosophy 19 (2005): 243–264. 15 For Mill’s principle, see John Stuart Mill, On Liberty (New York: Knopf, 1992), 12. 16 There is actually some evidence that abortion decreases the rate of murder. John J. Donahue III and Steven D. Levitt, “The Impact of Legalized Abortion on Crime,” Quarterly Journal of Economics 116 (2001): 379–420.

Hell and Abortion  63 17 I owe this point to Thomas Flint. 18 See, for example, Robert Adams, “A New Divine Command Theory,” Journal of Religious Ethics 7 (1979): 66–79. 19 Himma, “No Harm, No Foul: Abortion and the Implications of Fetal Innocence,” 182. 20 See Murphy, “Pro-­ Choice and Presumption: A Reply to Kenneth Himma,” 240–242. 21 The notion that self-­defense involves either a narrowly bounded right (for example, a right to life-­except-­where-­necessary-­to-­save-­someone’s-­life) is discussed in Judith Jarvis Thomson, “Self-­Defense and Rights,” in William Parent, ed., Rights, Restitution, and Risk (Cambridge: Harvard University Press, 1990), 37–42. The notion that it is a permissible right infringement can be seen in Phillip Montague, Punishment as Societal Defense (Boston: Rowman & Littlefield Publishers, Inc., 1995), ch. 5. It is, however, inconsistent with various forfeiture accounts. See, for example, Alan Goldman, “The Paradox of Punishment,” Philosophy and Public Affairs 9 (1979): 9; Vinit Haksar, “Excuses and Voluntary Conduct,” Ethics 96 (1986): 321–324; A. John Simmons, “Locke and the Right to Punish,” in A. John Simmons, Marshall Cohen, Joshua Cohen, and Charles Beitz, eds., Punishment (Princeton: Princeton University Press, 1995), 238–252; Judith Jarvis Thomson, The Realm of Rights (Cambridge: Harvard University Press, 1990), 365–366. 22 See Nozick, Anarchy, State, and Utopia, 238. The notion that there are conflicting waves of duties can be seen in Jeremy Waldron, “Rights in Conflict,” Ethics 99 (1989): 503–519. 23 I owe this objection to Neil Feit. 24 For an approach that allows us to compare these scenarios see Peter Vallentyne and Shelly Kagan, “Infinite Value and Finitely Additive Value Theory,” The Journal of Philosophy 94 (1997): 5–26. 25 Himma, “No Harm, No Foul: Abortion and the Implications of Fetal Innocence,” 186–188. 26 The idea for this definition comes from Joel Feinberg, Harm to Others: The Moral Limits of the Criminal Law (New York: Oxford University Press, 1984), ch. 1, esp. 33. 27 The idea for this definition comes from Peter van Inwagen, “The Incompatibility of Free Will and Determinism,” Philosophical Studies 27 (1975): 185–199. Such a view about right answers might be present in the views of many Christians, including Molinists, Calvinists, and Thomists. 28 This example comes from Derek Parfit, : Parfit, Derek Parfit,[0] “Overpopulation and the Quality of Life,” in J. Ryberg and T. Tännsjö, eds., The Repugnant Conclusion (Berlin: Kluwer Academic Publishers, 2004), 7–22. 29 See Ben Bradley, “When Is Death Bad for the One Who Dies?” Nous 38 (2004): 1–28; Neil Feit, “The Time of Death’s Misfortune,” Nous 36 (2002): 359–383. 30 I owe this objection to Francis Beckwith. 31 For the notion that intrinsic goodness is at least in part a function of desert-­ adjusted well-­ being, see Fred Feldman, “Adjusting Utility for Justice: A Consequentialist Reply to the Objection From Justice,” Philosophy and Phenomenological Research 55 (1995): 567–585; Shelly Kagan, “Equality and Desert,” in Louis P. Pojman and Owen McLeod, eds., What Do We Deserve? (New York: Oxford University Press, 1999), 298–314; Thomas Hurka, “The Common Structure of Virtue and Desert,” Ethics 112 (2001): 6–31; Neil Feit and Stephen Kershnar, “Explaining the Geometry of Desert,” Public Affairs Quarterly 18 (2004): 273–298.

64 Hell 32 The asymptote for positive well-­being can be seen in Feldman, “Adjusting Utility for Justice: A Consequentialist Reply to the Objection from Justice,” 567–585; Hurka, “The Common Structure of Virtue and Desert,” 6–31; and Feit and Kershnar, “Explaining the Geometry of Desert,” 273–298. An analogous approach with regard to the diminishing value of adding additional happy people to the world can be seen in Thomas Hurka, “Value and Population Size,” Ethics 93 (1983): 496–507. 33 See Nozick, Anarchy, State, and Utopia, ch. 3, esp. 30–33 and 35–42.

Section II

Abortion Doctors

3

Forfeiture

In this chapter, I argue that forfeiture theory best explains just killing. My argument rests on the claim that forfeiture theory explains when individual and state violence is justified better than other theories. This argument is independent of theism if, in general, morality is independent of God. Were morality dependent on God (for example, were what makes an action right is that God commands it), then God would have no reason to make some acts right (for example, respecting one’s spouse) and others wrong (for example, rape). Intuitively, though, morality does not seem so arbitrary. There is something about rape that explains why it is wrong. In addition, if moral values were merely what God prefers, then some doctrines would not be able to do the work theists need them to do. For example, if goodness is merely what God prefers, then the doctrine God is good would reduce to God is what God prefers. This would not allow God’s goodness to play its justificatory role in the various arguments for God’s existence. Consider, for example, the ontological argument. In the fifth chapter, I revisit forfeiture theory. This chapter, though, aims to show that it is the best theory of permissible killing and thus the basis for the discussions of killing that follow in the next two chapters. This chapter, then, provides the basis for two later chapters. Specifically, if forfeiture explains when killing is permissible and when it is not, then whether killing abortion doctors and fetuses is permissible depends on whether one or both have forfeited their right to life. In the next chapter, I argue that if the pro-­life position is true, abortion doctors have forfeited their lives. In the sixth chapter, I argue that contra the pro-­life position, fetuses have forfeited this right.

Part One: Thesis In this chapter, I defend the following thesis. Forfeiture Theory Thesis: Forfeiture theory best explains just killing.

68  Abortion Doctors Specifically, it explains when killing is just and, as a general matter, when it is morally permissible to kill people and break things. This theory has strong implications for whom is liable to be killed. In particular, except in the case where killing is necessary to avoid a catastrophe, only those who forfeit their rights are liable to be killed. This theory also has implications for which, if any, of the commonly cited restrictions on killing (imminence, necessity, proportionality, and discrimination) are relevant. The second part of this chapter provides an account of how forfeiture works. The third part provides the argument for this position. The fourth part summarizes the theory and the argument.

Part Two: How Forfeiture Works Here is a brief account of how forfeiture works. First, I provide the relevant concepts. Second, I argue that forfeiture is needed to account for when defensive violence is justified. A person loses a right if and only if he waives it or forfeits it.1 A person waives a right if and only if he consents to waive it. A person forfeits a right if and only if he loses a right and does not waive it. In particular, a person forfeits a right just in case he is an unjust threat. This is true whether the right is one against defensive violence, punishment, or compensation.2 One person is an unjust threat if and only if he infringes a right or, on an alternative account, is likely to infringe a right. This includes rights against risk. The right forfeited limits what the respondent may do. The limits might include factors such as necessity, proportionality, imminence, and so on. A right is defeated if and only if it is overridden. The stringency of a right is not equal to the value of what is protected (for example, the value of autonomy the right protects) or rights would likely do no work. Nevertheless if the ground (for example, autonomy or interest) is to explain a right, there must be some proportionality relation. To see the argument for forfeiture, consider the following: Case 1: Prevention in the State of Nature In the state of nature, Al batters, rapes, and sodomizes Betty. When Al attacks a second time, she strikes him, thereby intentionally causing him to suffer temporarily and preventing the attack. Her strike causes temporary pain but no lasting suffering, disability, or harm. Al does not intend or know that Betty will strike him or otherwise cause him to suffer, nor is he reckless with regard to the fact that she might do so. Intuitively, Betty’s act is just. Just acts are ones that do not infringe on anyone’s moral rights. If Betty’s act is just, then one of four things happens. First, Betty’s act might not infringe on Al’s right because his right to his body is complex, having something like the following content: Betty-­ and-­others-­have-­a-­duty-­not-­to-­touch-­Al’s-­body-­unless-­it-­is-­necessary-­for-­

Forfeiture  69 just-­defense-­or-­just-­punishment-­etc. This content will result in a right that is indistinguishable from forfeiture theory because it has the same implications for just defense. However, this theory is unhelpful because the just-­defense condition cannot be explained in terms of the right to one’s body because the latter includes the former as part of its content. On this account, then, we cannot explain why Betty’s violence is okay in terms of Al’s rights. Second, Betty’s act might permissibly trump Al’s right. A reason (or an act done from a reason) trumps a right if it infringes on a right and the agent is justified in doing so. However, if Al’s right is infringed, whether trumped or not, then Al is owed compensation or at least some other residue duty, for example, an apology. Intuitively, Al is not owed either. Third, Al might voluntarily lose or suspend his right. This might occur via consent or promise.3 A person does something voluntarily only if he does it intentionally (that is, with purpose, knowledge, or recklessness), and this is not true here. Hence, Al does not voluntarily suspend or lose his right. Fourth, given the failure of the preceding three theories, Al’s right must be forfeited. This is the Forfeiture Theory. On this account, this forfeiture is a primitive feature of how rights work.4 That is, forfeiture does not depend on a more fundamental theory of rights or morality. Table 3.1 summarizes these results. On this account, forfeiture occurs only with regard to the would-­be victim. Again, this is a primitive feature of rights. The victim’s agents may act on her behalf, but she alone has the right to defend herself. An exception occurs when she transfers it to someone else. In the state of nature, it is hard to see how when one person attacks a second, this changes the rights

Table 3.1  For Forfeiture Theory

Assertion

Objection(s)

Narrow Scope

Justified defensive violence does not infringe on the attacker’s right because it is part of the content of the right. Justified defensive violence overrides the attacker’s right.

1. The right cannot explain what a defender may and may not do. 2. The theory is extensionally equivalent to forfeiture theory. If this were true, then the just defender would have a residue duty (to compensate or apologize to him), and she has no such duty. Many attackers do not consent.

Override

Consent

Forfeiture

Justified defensive violence does not infringe the attacker’s right because he has consented to the defender’s violence. Justified defensive violence does not infringe the attacker’s right because he has lost it.

No unique objection.

70  Abortion Doctors of third parties. Just as the property rights of third parties are not affected by transactions involving others, the same intuitively seems to be true with regard to defense. If in the state of nature the right to defense were not held by the victim alone, then if a third party acts on his own and attacks a bad guy in defense of a third party, then either the victim would not be able to justly defend against the bad guy or there would be no proportionality limit on just defense. Both intuitively seem incorrect. In addition, the right forfeited is either the right in question or an equivalent right. This is in part because otherwise defense would be impossible in some cases. For example, a blind man who tries to blind another could not be prevented from doing so. Nor could anyone defend against a man who does not own a car and tries to steal one from another. Note whether the right that is lost has a limited scope in time or whether the right is only temporarily lost is a distinction without a difference, because both descriptions are equivalent and there is no reason to prefer one over the other. On this account, the forfeited right acts as the ceiling on the amount of violence that can be used in just defense. The right to defend oneself is a liberty against an unjust attacker to use violence. This is an absence of a duty owed to him not to use defensive violence. It is also accompanied by a claim to noninterference against the victimizer. This right is usually, if not always, accompanied by a power over the claim. A power is the moral standing to eliminate, modify, or leave in place this duty. It also includes an immunity over the other elements, which is a lack of power in the other party. One objection here is that some people do not share the intuition that Betty’s act is just. The objector might claim that intuitively Betty’s act is unjust. In this account, our intuition is explained by the fact that Betty’s act is a case of blameless wrongdoing. My intuitions do not align with the objector, nor do the majority of people who were asked the same question in a recent public lecture. I see no reason in terms of either frequency of intuition or coherence with other plausible intuitions to reject the intuition that Betty acts justly. If, however, intuitions in general or in the context of applied ethics are unreliable, then my argument is unsound. In addition, one can imagine cases where Betty meets the conditions of responsibility, and hence, it is hard to see why, if her act were wrong, she would be blameless. For example, it is possible that she is rational, meets the metaphysical condition or conditions for freedom (she has libertarian freedom, is reasons-­responsive, has second-­order volitions with which she identifies, etc.), and lacks an excuse (for example, provocation or duress). Forfeiture theories vary in terms of whether in order to forfeit a right, an attacker must be blameworthy for an attack or morally responsible for putting another at risk.5 On my account, forfeiture does not require blame or responsibility. Consider the following case.

Forfeiture  71 Case 2: Psychotic Aggressor A woman’s companion in an elevator goes berserk and attacks her with a knife. There is no escape. The only way for her to avoid serious bodily harm or even death is to kill him with her gun. The assailant acts purposely in the sense that he means to further his aggressive end. He does act in a frenzy or in a fit, yet it is clear that his conduct is non-­ responsible. If he were brought to trial for his attack, he would have a valid defense of insanity.6 Intuitively, it seems that the woman may defend herself even though the attacker is neither blameworthy for the attack nor responsible for imposing a relevant risk on the woman.7 The explanation for why these responsibility-­ related conditions are irrelevant is that moral rights protect an individual’s autonomy and forfeiture is part of this function. A victim’s autonomy can be set back by acts for which another is not morally responsible as well as ones for which he is responsible. For example, the woman loses her life, and thus, her autonomy in the above case whether the attacker is responsible or not. If moral rights rest on the autonomy of the right holder and forfeiture reflects that justification, then forfeiture can occur regardless of whether the attacker is morally responsible. If the attacker doesn’t have rights in virtue of not being morally responsible, whether temporarily or permanently, then forfeiture does not justify defensive violence against him. A person can’t lose what he doesn’t have. In such a case, the defender has options similar to what happens when the attacker forfeits his rights. Others argue that because when the attacker does not act at all, he is not a moral subject and, hence, cannot infringe on an endangered person’s rights.8 Such a case might occur when you are at the bottom of your own well, a bad guy throws an innocent man down the well at you, and the only way to avoid being killed is to disintegrate him with your ray gun.9 Given that both you and the innocent man are people with moral rights, it is hard to see why this account is correct. The innocent may have an excuse for endangering you and, perhaps, he doesn’t forfeit his right. Still, the endangerment either does or does not result in forfeiture, and his lack of agency intuitively seems to be relevant only in so far as it relates to his being blameless. Whether his being blameless leaves his rights intact depends on the way in which autonomy justifies rights. This might depend on whether the threat to the body of the person at the bottom of the well is due to the falling innocent man or to the combination of the falling innocent man and the person at the bottom of the well.10 Alternatively, it might depend on how autonomy links up to property rights.11 In any case, though, my overall theory is compatible with blame-­and responsibility-­based accounts of forfeiture, and thus, for the purposes of this argument, nothing rests on this issue.

72  Abortion Doctors Another rival theory, threshold deontology, asserts that consequentialist reasons can justify wartime killing and destruction. A consequentialist override occurs when action is justified because it brings about very good results and the value of these results trump a non-­consequentialist side-­constraint. Even if this is correct, the results must be very good for it to override stringent side-­constraints against killing and destruction. Given that standard trolley and surgeon’s harvest cases indicate that a net saving of five lives is not weighty enough to do so and that many wartime killings do not generate a benefit worth more than five lives, the consequentialist override will not justify many instances of wartime killing.12 In addition, if someone’s right is overridden, compensatory justice requires that the person whose right is overridden be given an apology, if not compensation. However, unjust wartime aggressors intuitively seem to be owed neither. Thus, there is reason to doubt that wartime killing is justified by an overriding of military members’ rights. In summary, then, forfeiture theory appears to be a better account of individual defense than competitor theories, such as narrow scope theory, permissible infringement, and consent theory. On this account, forfeiture is a primitive feature of how rights work and only affects the Hohfeldian relations (claim, liberty, power, and immunity) between the one who attacks and the one who defends.

Part Three: Argument Here is the argument for the thesis. (P1) If forfeiture theory explains when individual and state violence is justified better than other theories, then forfeiture theory best explains just killing. (P2) Forfeiture theory explains when individual and state violence is justified better than other theories. (C1) Hence, forfeiture theory best explains just killing. [(P1), (P2)] Premise (P1) is trivially true. Premise (P2) rests on the following assumptions. I will assume there are no consequential overrides and then revisit this assumption later. Assumption 1: Rights. Individuals alone have rights and are owed duties. Underlying is this assumption is the idea that a right is grounded by autonomy or an interest and that individuals alone have autonomy or an interest.13 Assumption 2: Wrongness of Individual Killing to Duty-­Infringement. Outside of war, if one individual wrongly kills a second, then the first fails to satisfy a duty he owes to someone.

Forfeiture  73 If one person acts wrongly, then he wrongs someone. That is, there are no free-­floating non-­consequentialist wrongs. If one person wrongs someone, then he fails to satisfy a duty he owes to that individual. Assumption 3: Duty-­Infringement to Right-­Infringement. If one person fails to satisfy a duty owed the second, then the first infringes on the second’s right. This assumption rests on the Hohfeldian notion that a right is a claim and that a claim is to be owed a duty. Assumption 4: Wrongness of State Killing. State killing is morally similar to individuals’ killings outside of war. The fact that the state does the killing does not by itself change the relation between a wrong act and a moral right. Also, the fact that the state does the killing does not change what rights individuals have (specifically, their content, distribution, or stringency). To see this consider the following cases: Case 3: Mob A mob of mothers from a particular region of Sudan burn down a house containing a renter. They have just watched a news show that mistakenly identified the renter having Ebola. They kill him because they want to protect their children. The mob’s members have spontaneously got together and have not made any promises to each other. Nor have they consented to anything involving the others. Case 4: Partnership A collection of mothers from a region of Sudan form a partnership to promote and protect their children. The partnership pays someone to burn down a house containing a renter. The partners have just watched a news show that mistakenly identified the renter as having Ebola. They kill him because they want to protect their children. Case 5: Government A collection of mothers from a particular region of Sudan occupy the lion’s share of the Somali government (legislature, executive, and judiciary). Their priority is to promote and protect Somali children. Following democratic procedure, they pass a law declaring war on biological threats. Following the passage of this law and a presidential order, the army burns down a house containing a renter who resides in a house in Ethiopia on a property adjacent to Sudan. The leaders have just watched a news show that mistakenly identified the renter as having Ebola. They kill him because they want to protect their children.

74  Abortion Doctors Wartime killing is a type of state killing. Assumption 5: Assumption to Forfeiture Theory. If the first four assumptions are true, then the best theory of state killing (including just war) focuses on when rights are lost or defeated. Forfeiture theory alone focuses on when rights are lost or defeated. Note that if there is a consequential override of rights, then acts that would otherwise be permissible are wrong or vice versa. The forfeiture account is compatible with such overrides. In fact, I think that not only can such overrides occur, but they sometimes do occur during wartime and other emergencies as well. The forfeiture theory of state killing has several advantages. First, it coheres with the notion that individuals alone have rights. Because this is a plausible notion given that the standard justifications of rights in terms of autonomy and interests because individuals alone have autonomy and interests, it nicely dovetails with an account of who has rights.14 The background picture is that people have natural rights that are almost all, if not all, negative.15 Nonnatural rights are all derived from these natural rights. As a result, every right is had by an individual. Second, it coheres with what happens to the rights of the attacker in a standard case of self-­defense. As argued earlier, forfeiture is the most plausible account of why a just defender does not wrong an unjust attacker. This is a significant advantage in that it is hard to see how war could change the distribution and operation of rights from what occurs in ordinary self-­ defense. That people coordinate their efforts or join voluntary groups, such as nations, does not intuitively seem capable of changing these features of rights. In general, the analogy here is to the principle of the conservation of mass; namely, in a closed system, mass is neither created nor destroyed, although it is rearranged. When people enter or leave groups, their rights are neither created nor destroyed, although they can be rearranged via waiver and forfeiture. Third, the theory views conflicts between states, such as war, as merely a collection of violent acts in which individuals’ rights govern what individual may do to another. In understanding and evaluating war, it need not posit additional metaphysical or moral complexities. In particular, it need not posit a group as a metaphysical entity distinct from the collection of individuals that are its parts. Nor need it posit new moral relation that emerges when a collection of individuals interact in a complex manner. For example, it need not posit group rights that are morally distinct from an aggregation of individual rights. Nor need it assume that acts are made right or wrong by something other than moral rights. It is thus compatible with the view that desert, fairness, equality, exploitation, virtue, and so on either do not make acts right or wrong or ground rights. There is an independent reason to think this correct.16

Forfeiture  75 Table 3.2  Specific Forfeiture Account Name

Issue

General Theory

Holder

Who has rights? Individual people

Specific Theory

Autonomous beings alone have rights. Content What rights do All rights are natural •  Natural rights are negative parties have? rights or rights rights to one’s body. derived from them. •  Nonnatural rights are derived from natural rights. They are rights to property (and, perhaps, compensation). 1. A right is waived via Protection When is a right 1. A right is lost consent. lost or defeated? if and only if 2. A person forfeits a right if it is waived or and only if he is an unjust forfeited. threat. Whether he is an 2. A right is defeated unjust threat does not if and only if depend on respondent’s another moral mental state. consideration 3. A right is overridden if and overrides it. only if a consequentialist consideration is opposed to and more stringent than the right-based one. Closure Is an act wrong Yes Same as above. if it infringes on a right and the right is not lost or defeated? Forfeiture When is a right A person forfeits A person is an unjust threat if forfeited? a right if he is an he imposes an unjust risk on unjust threat. someone.

Fourth, the theory fits cleanly with theories of punishment and just compensation that apply to the state of nature and to criminal and tort law. This is not true for theories that make self-­defense, punishment, or just compensation depend on the state for either metaphysical or moral reasons. Table 3.2 summarizes the theory so far.

Part Four: Objections17 There are several objections that might be raised against the overall theory. The ones I find most challenging are those discussed in Chapter 5. Here I focus on two other powerful objections. One objection is to the preceding account of rights. The objector might deny that individuals alone have rights. Alternatively, she might think that

76  Abortion Doctors what nations may do during wartime is not solely a function of rights. David Rodin argues that individualism about the ethics of war is incorrect because permissible national defense allows for war-­fighting options not available to a collection of individuals. Specifically, he argues, nations are allowed to attack unarmed members of the enemy’s army, use preemptive attacks (for example, mines) to prevent future enemy attacks, and have less, if any, of a duty to retreat.18 Henry Shue argues that an individualist account of war cannot handle the moral basis for the laws of war. In particular, he argues, if such an account were true, then all combatants who are part of an unjust campaign would be subject to punishment for violating international law.19 Michael Walzer rejects the individualist account because war is a relation between political entities, not individuals. As such, he argues, the moral duties and permissions apply to the political entities and not to individuals, at least not directly. Also, he argues, war is so different from what is found in civilian life in a functioning peaceful society that it has its own moral norms.20 Noam Zohar argues that war is permissible even when self-­defense cannot justify it. This is because, he claims, the self-­defense justification requires guilt, fault, or aggression on behalf of the attacker, and many combatants do not have these features. Instead, he argues, soldiers are treated as embodying a nation’s agency rather than their own.21 The objections all fail if non-­consequentialist right and wrong are a function of, and only of, rights and if rights rest on autonomy or interests. The former assumption is plausible because it is intuitively difficult to come up with a plausible case when a wrong act does not wrong someone and when one person wrongs a second without infringing a duty owed to her. Standard examples such as exploitation and imperfect duties are unconvincing and in any case likely involve a covert duty-­infringement, albeit a disjunctive one in the case of an imperfect duty. The latter assumption rests on the notion that rights function to protect something valuable and autonomy and interests are the most plausible valuable things warranting such protection. That autonomy is had by, and only by, an individual can be seen in that almost every theory of responsibility focuses a feature of an individual that requires consciousness (for example, reason-­responsiveness, aligned desires, capacity for self-­revision, knowledge of the true and good, and agent causation).22 Individuals alone are conscious. The same is true for theories of well-­being, almost all of which focus on, whether in part or in whole, on pleasure, desire fulfillment, or knowledge and each of these requires consciousness. The first objection does raise an interesting issue with regard to the consent of members of the military. It might be objected that, for many countries, members of the military consent to be killed in virtue of their consenting to governments that, in turn, have consented to international laws that set forth various rules about when and how nations may go to war.

Forfeiture  77 They have thus consented to rules about killing in the case of international conflict as part of their consent to their government’s authority. Consider, for example, the rules of war found in the Hague and Geneva Conventions. This is analogous to ways in which, on some theories, offenders consent to be punished in virtue of their having consented to a government that either contains a particular penalty system or a more fundamental procedure by which a penalty system is chosen and implemented.23 This assumes that government authority is justified by consent. I think this is correct, although it should be noted that many theorists deny this. They argue that citizens don’t consent, and if they did, it would be invalid because it was done involuntary or without adequate knowledge. In addition, A. John Simmons argues that consent cannot justify government because the government’s proposed deal (for a given territory, an individual and government trade consent for government-­dependent benefits) presupposes that the government already has legitimate authority over the territory and, thus, may offer such a deal.24 This, Simmons argues, pushes the issue of government authority one step back. There is a further problem with consent theory in that, in some accounts, asking people to consent to certain arrangements is wrong, even if the consent is informed and free. For example, it seems wrong to ask women to consent to marriages that permit marital rape even if this is made clear to them and they are not coerced into marrying. That is, in some accounts, valid consent is not sufficient for a just agreement, even if it is necessary. Assuming the problems with consent legitimating governments can be overcome, and I think they can, the issue is whether the international war-­fighting conventions are binding on citizens, especially members of the military. A concern is that consent is effective only if the consented-­to arrangement is reasonable, fair, or nonexploitative and that members of the military’s consent do not meet this condition. I do not think these are side-­constraints at all; rather, they are covert appeals to rights or desert and usually mistaken ones. In any case, if the consent argument goes through, it is compatible with forfeiture theory. A second objection might be that morality applies to the actions of a nation as a group. On this account, the nation as a group is distinct from the collection of individuals who compose it because the group might have been composed of a different collection of individuals from those who actually composed it.25 The objector might also claim that this is also true for a military unit (for example, an army) that serves a nation. The objector concludes that the individualist forfeiture theory fails because it incorrectly reduces the status of a military campaign to a collection of individual relationships. This objection is problematic for several reasons. First, the objection assumes that a thing can have properties distinct from its parts, and this is controversial. Second, even if the group is distinct from its parts, it is unclear how it can be a moral patient, that is, the type of thing that can be

78  Abortion Doctors owed duties. To be owed duties, a thing must be capable of having different levels of well-­being, and to have different levels of well-­being, a thing must be conscious.26 It is unclear how a group can be conscious given that it does not have a mind.27 Third, to do acts that warrant praise or blame a thing must be morally responsible or a moral agent and a group is neither.28 If one thinks that right-­infringements require moral responsibility or agency, then a group can’t infringe someone’s right. Fourth, even if an organization is distinct from its parts, can be owed duties, and is a moral agent, it is not clear what would be the basis for its acting wrongly or infringing on another’s rights. If the objector asserts that this is true because individuals attacked others, this focuses on what individuals did, and we are back to considering what is owed by or to individuals. A third objection is that the metaphysical reduction of war to a collection of individual acts of aggression is mistaken. If the second objection fails, then so does the third. If the relevant entities for the purpose of deontic status are individuals and their actions, then whether war is an aggregation of individuals’ acts is irrelevant. It might not be, although I have a hard time seeing why, but, if so, this is irrelevant to the morality of war. A fourth objector might argue that a person can have a duty to obey his country’s laws on a basis other than consent. This might be because social entities (consider, for example, families and nations) exist apart from the collection of people that constitute them. Alternatively, it might be because persons are embedded in, or perhaps even constituted by, groups to whom they have feelings and owe duties and this gives rise to distinct group-­based duties. The objector might argue, for example, that he loves his family and that that love differs from his love of his wife, son, and daughter. Just as he might have attitudes toward his family that differ from his attitudes toward the individuals who constitute it, he also might have duties toward his community or nation that differ from his duties toward the individuals who constitute them. The objector’s claim might be metaphysical or moral. He might be claiming that countries and families are different from the collection of people that constitute them. Alternatively, he might be claiming that they are not different, but that there are duties owed to the collection that are not the sum of duties he owes to the individuals who constitute the collection. The first is an odd notion in that it is hard to see what a family could be other than a collection of objects (or concrete particulars) with the right sort of causal, promissory, or emotional connections between them. Even if there were an entity that was distinct from the collection of individuals, it would not have a well-­being level because it would not have a mind. For example, if a family is different from a collection of individuals, the family does not have a mind and, hence, no well-­being level and no autonomy. If something lacks a well-­being level and autonomy, then, intuitively, it can’t owe or be owed duties. This is why humans and animals are owed duties, but rocks and weeds are not.

Forfeiture  79 A concern might be raised because a collection has its members essentially and thus does not persist if people come and go from it. This is parallel to mereological essentialism. It is the doctrine that every part of an object is essential to it. If one rejects mereological essentialism or, perhaps, evades its bite by assuming things have temporal parts, then objects such as people can persist even as they gain and lose parts (such as brain cells) so long as the change is spatially and temporally continuous and, perhaps, slow enough. Similar moves might be made with regard to groups. The second is odd, too, in that it is hard to see how one could owe a duty to a group that not reducible to duties owed to a collection of individuals. After all, the group just is the collection. The collected individuals might have relations that shape their individual claims or duties, but this is consistent with individuals alone being the bearers of claims and duties. For example, a person might owe money to a corporation. Specifically, he might owe a debt to Citibank based on his using its credit card. In that case, Citibank’s owners would have joint property over the debt and an agreement as to how to handle the joint property. This is consistent with the duty to pay being owed to individual people who have an agreement amongst themselves over what to do with the money once it is paid. The same is true were the group (consider, again, Citibank) to owe a duty to return money to the credit-­card owner in the form of a rebate. Each owner would owe him money, but how much and when he should pay it would be fixed by agreement. A fifth objector might argue in support of the notion that governments can owe and be owed duties. He might cite treaties that one country owes another. Consider, for example, a treaty that Canada owes Mexico. This is not a duty owed to any individual or collection of them, the objector argues, because a nation is not merely a collection of individuals. Even if a nation is just a collection of people (perhaps in a certain relationship), the objector continues, the duty is not owed to the collection. This can be seen in that the people who constitute the nation, if they do constitute it, go in and out of existence, and the duty persists. If, as argued earlier, a nation is a collection of people with certain relations between them, then there is no nation above and beyond its people, let alone one that can owe and be owed duties. Moreover, the duty to pay things like taxes and fees is owed to the collection of people constituting the nation at the time the debt is due. The collection changes as people die or emigrate. There are then two models as to what happens to the debt. On one account, the debt is owed to the original creditors, although other people can gain a third-­party right to it when the creditor gives or sells his claim to another. In a second account, and not one that I favor, the debt is owed to the collection whomever it is at the time, and thus, the people to whom it is owed change over time. A sixth objector argues that people can act wrongly even if they don’t wrong anyone. He might provide two types of cases. First, he might cite the case of Cecil Partee, who because he was black was denied admission to the University of Arkansas Law School.29 Because he was admitted to much

80  Abortion Doctors better law schools (the University of Chicago and Northwestern) and would have attended them over Arkansas Law anyway, he was not wronged. Still, the objector argues that he was not wronged because he was not harmed, and yet Arkansas (or government officials on its behalf) acted wrongly. The objector might claim that there can be duties not owed to anyone. Consider, he argues, the duty to pay my credit-­card balance to Citibank. This duty is not owed to anyone because Citibank’s employees and board members change over time. One problem with this objection is that, leaving aside consequentialist duties, it is hard to see how one can act wrongly if he does not wrong someone. A person acts wrongly if he fails to satisfy a duty that he owes. The duty is either owed to someone (or, perhaps, something) or it is not. If it is not owed to someone, then it is a free-­floating duty. It is intuitively implausible that there are such free-­floating duties other than a duty to make the world a better place, that is, a consequentialist duty. This can be seen in the oddity of saying that someone has a duty to do something but not being able to say to whom the duty is owed. The second problem is that the objector’s cases are not instances of wrongdoing without someone being wronged. In the first case, Mr. Partee is wronged because his moral claim to attend a state institution is infringed. This claim might rest on law, equality, dignity, or something else. He might not be harmed when Arkansas refused to allow him to attend its law school, but not being harmed is different from not being wronged. I am wronged when someone steals my garbage without my permission but not harmed, assuming the thief’s doing so does not make my life go worse by making me have less pleasure, fewer desires fulfilled, or the loss of things such as agency, virtue, or knowledge (objective-­list goods). In the second case, the duty to pay money is owed to Citibank’s owners at a specific time (perhaps at the time the debt is due). As the owners change, some owners sell their claim to that debt to others, and it becomes owed to new people. If the credit-­card debtor fails to pay he wrongs someone, specifically, the people who have a claim to the money at the time he refuses to pay. If the debtor fails to pay, then, this is an instance of wrongdoing that wrongs someone.

Part Five: Conclusion In this chapter, I argued that forfeiture theory best explains just killing. My argument rests on the claim that forfeiture theory explains when individual and state violence is justified better than other theories. My argument rested on a number of assumptions. First, individuals alone have rights and are owed duties. Second, outside of war, if one individual wrongly kills a second, then the first fails to satisfy a duty he owes to someone. Third, if one person fails to satisfy a duty owed the second, then the first infringes on the second’s right. Fourth, state killing is morally similar to individuals’ killings

Forfeiture  81 outside of war. Fifth, if the first four assumptions are true, then the best theory of just killing focuses on when rights are lost or defeated. Forfeiture theory alone focuses on when rights are lost or defeated. I then considered objections to the individualist theory of rights and briefly mentioned some of the theory’s implications.30

Notes   1 A forfeiture theory of just war killing can be seen in David Rodin, War & Self-­ Defense (New York: Oxford University Press, 2002), 70–77. People who assert that a criminal forfeits some of his moral rights include Stephen Kershnar, “The Structure of Rights Forfeiture in the Context of Culpable Wrongdoing,” Philosophia 29 (2002): 57–88, A. John Simmons, “Locke and the Right to Punish,” in A. John Simmons, Marshall Cohen, Joshua Cohen, and Charles Beitz, eds., Punishment (Princeton: Princeton University Press, 1995), 238–252, Judith Jarvis Thomson, The Realm of Rights (Cambridge: Harvard University Press, 1990), 365–366, Vinit Haksar, “Excuses and Voluntary Conduct,” Ethics 96 (1986): 317–329, Murray Rothbard, The Ethics of Liberty (Atlantic Highlands, NJ: Humanities Press, 1982), Alan Goldman, “The Paradox of Punishment,” Philosophy and Public Affairs 9 (1979): 30–46; Roger Pilon, “Criminal Remedies: Restitution, Punishment, or Both?” Ethics 88 (1978): 348–357. These theories differ with regard to whether right forfeiture is a fundamental feature of rights or is explained by a more fundamental principle.   2 Some of the details of the theory can be seen in Stephen Kershnar, “The Structure of Rights Forfeiture in the Context of Culpable Wrongdoing,” Philosophia 29 (2002): 57–88.   3 The consent theory of punishment is defended in C. S. Nino, “A Consensual Theory of Punishment,” in A. John Simmons, Marshall Cohen, Joshua Cohen, and Charles Beitz, eds., Punishment (Princeton: Princeton University Press, 1994), 94–111, C. S. Nino, “Does Consent Override Proportionality?” Philosophy and Public Affairs 15:2 (1986): 183–187, and C. S. Nino, The Ethics of Human Rights (Oxford: Clarendon Press, 1991).   4 Forfeiture or one of the other theories of rights could be justified not as a primitive but, rather, as a result of what would result from fair-­and-­rational choosing conditions applied to issues of economic justice. See John Rawls, A Theory of Justice (Cambridge: Belknap Press, 1971). An account of self-­defense derived from distributive justice can be seen in Michael Moore, “Torture and the Balance of Evils,” Israel Law Review 23 (1989): 280–344 and Philip Montague, Self-­defense as Societal Defense (Boston: Rowman & Littlefield Publishers, Inc., 1995).   5 See Jeff McMahan, Killing in War (Oxford: Clarendon Press, 2009), 51–60, Jeff McMahan, “On the Moral Equality of Combatants,” Journal of Political Philosophy 14 (2006): 377–393, Jeff McMahan, “The Basis of Moral Liability to Defensive Killing,” Philosophical Issues 15 (2005): 386–405.   6 See George Fletcher, “Proportionality and the Psychotic Aggressor: A Vignette in Comparative Criminal Theory,” Israel Law Review 8 (1973): 367–390, esp. 371.   7 For a similar conclusion, see A defense of the notion that culpability, responsibility, and agency are not necessary for liability to defensive violence, see Judith Jarvis Thomson, “Self-­Defense,” Philosophy and Public Affairs 20 (1991): 283– 310 and Judith Jarvis Thomson, “Self-­Defense and Rights,” in William Parent, ed., Rights, Restitution, and Risk (Cambridge, MA: Harvard University Press, 1986).

82  Abortion Doctors  8 See Michael Otsuka, “Killing the Innocent in Self-­Defense,” Philosophy and Public Affairs 23 (1994): 74–94 and David Rodin, War and Self-­Defense (New York: Oxford University Press, 2002), 86.   9 This example comes from See Robert Nozick, Anarchy, State, and Utopia (New York: Basic Book, 1974). 10 The notion that the cause of the harm is the combination of the two men can be found in Ronald Coase, “The Problem of Social Cost,” The Journal of Law and Economics 3 (1960): 1–44. 11 See Stephen Kershnar, “Private Property Rights and Autonomy,” Public Affairs Quarterly 16 (2002): 231–258. 12 See Judith Jarvis Thomson, “The Trolley Problem,” The Yale Law Journal 94 (1985): 1395–1415 and Phillipa Foot, “The Problem of Abortion and the Doctrine of the Double Effect,” Oxford Review 5 (1967): 5–15. 13 The autonomy-­based theory of rights is called the “will theory of rights.” This theory asserts that rights function to protect choices. As such they always include a Hohfeldian power plus the other Hohfeldian elements over which the power ranges. See, for example, H. L. A. Hart, Essays on Bentham: Studies in Jurisprudence and Political Theory (Oxford: Clarendon, 1982), Carl Wellman, A Theory of Rights (Totowa, NJ: Rowman and Allenheld, 1985), and Hillel Steiner, An Essay on Rights (Oxford: Blackwell, 1994). I should mention that in my version of the will theory, rights are constituted by claims, although these claims are often accompanied by powers. In contrast, the interest theory asserts that rights function to protect interests. As such they are constituted by a claim. See, for example, David Lyons, Rights, Welfare and Mill’s Moral Theory (New York: Oxford University Press, 1994), Neil MacCormick, “Rights in Legislation,” in P. Hacker and J. Raz, eds., Law, Morality and Society: Essays in Honour of H. L. A. Hart (Oxford: Oxford University Press, 1977), 189–209; Joseph Raz, The Morality of Freedom (Oxford: Oxford University Press, 1986), and Matthew Kramer, “Rights Without Trimmings,” in Matthew Kramer, N. E. Simmonds, and Hillel Steiner, eds., A Debate Over Rights (New York: Oxford University Press, 1998), 7–111. 14 For the interest theory, see Matthew Kramer, “Some Doubts About Alternative to the Interest Theory of Rights,” Ethics 123 (2013): 245–263, Matthew Kramer, “Refining the Interest Theory of Rights,” American Journal of Jurisprudence 55 (2010): 31–39, and Matthew Kramer, “Rights Without Trimmings,” in Matthew Kramer et al., eds., A Debate Over Rights (Oxford: Oxford University Press, 1986), 7–91. For the will theory, see Hillel Steiner, “Directed Duties and Inalienable Rights,” Ethics 123 (2013): 230–244 and Hillel Steiner, “Working Rights,” in Matthew Kramer, N.E. Simmonds, and Hillel Steiner, eds., A Debate Over Rights, 239–247 15 See Robert Nozick, Anarchy, State, and Utopia (New York: Basic Book, 1974). 16 For theories of desert that view it as addressing the good and not the right, see Fred Feldman, “Adjusting Utility for Justice: A Consequentialist Reply to the Objection From Justice,” Philosophy and Phenomenological Research 55 (1995): 567–585, Shelly Kagan, “Equality and Desert,” in Louis P. Pojman and Owen McLeod, eds., What Do We Deserve? (New York: Oxford University Press, 1999), 298–314, Thomas Hurka, “The Common Structure of Virtue and Desert,” Ethics 112 (2001): 6–31, Thomas Hurka, Virtue, Vice, and Value (New York: Oxford University Press, 2001), Neil Feit and Stephen Kershnar, “Explaining the Geometry of Desert,” Public Affairs Quarterly 18 (2004): 273–298. For the notion that exploitation is not wrong, see Stephen Kershnar, Pedophilia and Adult-­Child Sex: A Philosophical Defense (Lanham, MD: Lexington Books, 2015), ch. 5.

Forfeiture  83 17 I owe objections 4 through 6 to Francis Beckwith. 18 See David Rodin, War and Self-­Defense (New York: Oxford University Press, 2002), ch. 5–7. 19 See Henry Shue, “Do We Need a ‘Morality of War’?” in David Rodin and Henry Shue, eds., Just and Unjust Warriors (Oxford: Oxford University Press, 2008), 87–111. 20 See Michael Walzer, Just and Unjust Wars (New York: Basic Books, 1977), 127 and Michael Walzer, “Response to McMahan’s paper,” Philosophia 34 (2006): 43–45. 21 See Noam Zohar, “Innocence and Complex Threats: Upholding the War Ethic and the Condemnation of Terrorism,” Ethics 114 (2004): 734–751. 22 For the first model, see John Martin Fischer and Mark Ravizza, Responsibility and Control: A Theory of Moral Responsibility (New York: Cambridge University Press, 1998). For the second model, see Harry Frankfurt, “Freedom of the Will and the Concept of a Person,” Journal of Philosophy 68 (1971): 5–20; and Gary Watson, “Free Agency,” Journal of Philosophy 72 (1975): 205–220. For the third and fourth model, see Susan Wolf, Freedom Within Reason (New York: Oxford University Press, 1990). 23 The consent theory of punishment is defended in C. S. Nino, “A Consensual Theory of Punishment,” 94–111; C. S. Nino, “Does Consent Override Proportionality?”, and C. S. Nino, The Ethics of Human Rights (Oxford: Clarendon Press, 1991). 24 See A. John Simmons, “Political Obligation and Consent,” in Franklin Miller and Alan Wertheimer, eds., The Ethics of Consent: Theory and Practice (New York: Oxford University Press, 2010), 305–328. 25 For a similar argument that a group is compatible with different sets of members, see David Cooper, “Collective Responsibility,” Philosophy 43 (1968): 258–268, esp. 260. A different argument in support of collective responsibility is that group actions are not reducible to individual actions because the relations between individuals are essential to the action. See Larry May, The Morality of Groups (Notre Dame, IN: University of Notre Dame Press, 1987), 55. On some theories of persons, they consist of both matter and form. On this account, then, a person is not reducible to his parts. For a contemporary version of this, see William Jaworski, Philosophy of Mind: A Comprehensive Introduction (New York: Wiley-­Blackwell, 2011). Perhaps a similar argument could be given with regard to groups. 26 Alastair Norcross argues that animals can be moral patients even if they are not moral agents. He appears to base this claim on the notion that animals can suffer. This focus on suffering involves levels of well-­being. See Alastair Norcross, “Puppies, Pigs, and People: Eating Meat and Marginal Cases,” Philosophical Perspectives 18 (2004): 229–245. 27 For the notion that groups do not have minds in a non-­derivative manner, see David Sosa, “What Is It Like to Be a Group?” Social Philosophy and Policy 26 (2009): 212–226, esp. 215. For similar arguments that groups do not have minds, make choices, hold beliefs, or form intentions, see Jan Narveson, “Collective Responsibility,” Journal of Ethics 6 (2002): 179–198, J. Angelo Corlett, “Collective Moral Responsibility,” Journal of Social Philosophy 32 (2001): 573– 584, and Stephen Sverdlik, “Collective Responsibility,” Philosophical Studies 51 (1987): 61–76. 28 For an argument that groups cannot be morally responsible, see R. S. Downie, “Collective Responsibility,” Philosophy 44 (1969): 66–69, esp. 67. For the notion that only individuals can have moral agency, see Jan Narveson, “Collective Responsibility,” 179. For arguments to the contrary, see David Cooper,

84  Abortion Doctors “Collective Responsibility,” 258–268 and Deborah Tollefsen, “The Rationality of Collective Guilt,” Midwest Studies in Philosophy XXX (2006): 222–239, and Larry May, “State Aggression, Collective Liability, and Individual Mens Rea,” Midwest Studies in Philosophy XXX (2006): 309–324. 29 This example comes from Hadley Arkes, Constitutional Illusions and Anchoring Truths: The Touchstone of the Natural Law (New York: Cambridge University Press, 2010). 30 I am grateful to Col. David Barnes, Rebecca Chan, Randy Dipert, Neil Feit, David Hershenov, Ryan Jenkins, Duncan Purves, and participants in the 2014 International Society for Military Ethics for their extremely helpful comments and criticisms of this paper and a related presentation.

4

Forfeiture and Killing Abortion Doctors

In the previous chapter, I argued that forfeiture theory best explains just killing. Leaving aside consequentialist overrides, what makes killing permissible is that a person forfeited his right. A person forfeits his right when he is an unjust threat to another. In the case of defensive violence, the right forfeited depends on the degree of injustice and threatened harm posed by an attack. An attacker who threatens the lives of several innocents can, and sometimes does, forfeit his right to life (or, perhaps, his right not to have his body destroyed). The question in this chapter is whether, on pro-­life assumptions, physicians who perform abortions forfeit this right. I argue they do. In this chapter I argue that if the pro-­life position is true, then abortion doctors forfeit their right to life. If someone forfeits his right to life, then it is permissible to kill him. Hence, I conclude that if the pro-­life position is true, then it is permissible to kill abortion doctors. The sixth chapter also looks at forfeiture, but the focus is on whether fetuses rather than abortion doctors forfeit their right to life.

Part One: Introduction There is a history of violence by pro-­life forces against abortion providers. According to the National Abortion Federation (NAF), an organization of abortion providers, since 1977 in the U.S. and Canada, there have been 153 assaults or batteries, 13 people wounded, 3 kidnappings, 17 attempted murders, 383 death threats, 373 building invasions, 41 bombings, and 655 anthrax threats.1 In terms of property crimes, NAF reports that since 1977, there have been 173 arsons, 41 bombings, 91 attempted bombings or arsons, 619 bomb threats, 1,630 incidents of trespassing, 1,264 incidents of vandalism, and 100 attacks with butyric acid (“stink bombs”).2 In 2000, according to NAF, 20% of abortion clinics have been subject to some form of extreme activity. The New York Times similarly reports that between 1978 and 1993, there were over one hundred bombings and arsons of clinics, more than three hundred invasions, and over four hundred vandalism incidents.3

86  Abortion Doctors Pro-­life violence has also resulted in eight people being killed, including four doctors, two clinic employees, a security guard, and a clinic escort.4 Two examples are relevant for the following argument. First, on October 23, 1998, Dr. Barnett Slepian was shot to death with a high-­powered rifle at his home in Amherst, New York.5 On May 31, 2009, Scott Roeder shot and killed Dr. George Tiller as the latter served as an usher at a Wichita, Kansas, church.6 The leading pro-­life groups condemned this violence. The American Life League issued a “Pro-­life Proclamation Against Violence” in 2006.7 The National Coalition for Life and Peace, Center for Bio-­Ethical Reform, and Pro-­Lifers Against Clinic Violence have also opposed clinic violence. Many pro-­life groups condemned the murder of Tiller, including Family Research Council, Americans United for Life, Concerned Women for America, Susan B. Anthony List, American Life League, Students for Life of America, Pro-­ Life Action League, and 40 Days For Life.8 My thesis is that if the pro-­life position is true, then the previously mentioned killings and some of the other violence are justified. Here is my specific thesis: For Assassination Thesis: If the pro-­life position is true, then it is permissible to assassinate abortion doctors. My argument consists of two claims. First, lethal violence may sometimes to be used to defend innocent parties. Second, if the pro-­life position is true, then, sometimes, assassinating abortion doctors is an instance of such defense. The argument is then followed by a discussion of objections.

Part Two: Argument Here is a case to illustrate my argument and then the argument. Case 1: Zyklon B A Nazi worker drives his truck to his job at the death camp, Treblinka. His job is to drop Zyklon B into the shower-­like rooms that are used to kill Jews. A Jewish resistance group kills the worker with an anti-­tank round when he is a mile away from the camp. They do so in order to save Jewish lives. Under German law, assassinating death camp workers is illegal and punishable by death. It intuitively seems the resistance group can permissibly assassinate the worker. This is true even if doing so is illegal and will bring about widespread reprisals of ten innocents killed for every Nazi killed.9 On the pro-­life position, the Nazi worker is analogous to an abortion doctor, the Jews who would otherwise be killed by the worker are analogous to fetuses, and the

Forfeiture and Killing Abortion Doctors  87 Table 4.1  Analogy Variable

Zyklon B

Abortion

Assassination Target Target’s action Endangered Group Resistance’s act Actor Justification Legal Status

Nazi worker Driving to work Jews Assassination Resistance group (Jewish) Defense of others Illegal

Abortion doctor Driving to work Fetuses Assassination Resistance group (Pro-Life) Defense of others Illegal

Jewish resistance is analogous to the pro-­life resistance. Table 4.1 explicitly lays out the analogy. To deny this analogy, the pro-­life opponent of assassinating abortion doctors has to deny that the Nazi worker may be assassinated or show that, in pro-­life assumptions, assassinating him is different from assassinating an abortion doctor. The pro-­life argument for assassinating abortion doctors makes the following assumption: Abortion is as wrong as killing adult people and is wrong for the same reason. In different accounts, abortion is wrong because it deprives the fetus of a valuable future, infringes the fetus’ rights, runs afoul the doctrine of double effect or doctrine of doing or allowing, causes harm, is vicious, fails to maximize (or satisfice) utility, violates the Categorical Imperative or Golden Rule, conflicts with God’s prohibition on such killing, brutalizes the killer, kills an innocent, or so on. The reason one of these wrong-­making features is present depends on further assumptions concerning whether the fetus is a person or human organism (or is part of, identical to, or constitutes a person or human organism), has a valuable future or potential, is a vessel for future utility, is loved by God, and so on.10 There are pro-­life positions that are not committed to the claim that abortion is as wrong as killing adult people and wrong for the same reason. For example, a pro-­lifer could hold that abortion is less wrong than killing adults because adults have interests that zygotes or fetuses do not, based on the former having a mind, a more developed mind, or relationships with others and right-­stringency rests on the strength of an individual’s interests. Alternatively, she could hold that killing fetuses and adult people is wrong but for different reasons. It might be that it is wrong to kill adults because they have a certain status (for example, they’re people), and it is wrong to kill fetuses because it harms them. This can be seen in Robert Nozick’s notion that we should be Kantians with regard to people and utilitarians with animals.11 This position might entail that it is worse to kill adults than prekindergarten toddlers and, perhaps, far worse.

88  Abortion Doctors We can sidestep these views because, on almost every pro-­life view, killing a fetus is as wrong as killing a newborn. If defending a newborn’s life warrants lethal force, the greater wrongness of killing an adult does not affect the argument. This can be seen in the above case assuming that the resistance may kill the Nazi worker if his job consisted of gassing Jewish newborns. For simplicity, I will rely on the simpler assumption about the pro-­life position, namely, that abortion is as wrong as killing adult people and wrong for the same reason. There might be concern about the message that this argument sends. I am not sure that sound, but dangerous, philosophical arguments should be avoided because of their message. Even if they should, the message of this argument might be that if violence against abortion doctors is wrong, then the pro-­life position is false. With the preceding analogy in mind, here is my argument. Note that I am assuming here, without argument, that the pro-­life position is true. (P1) An abortion doctor is a morally responsible attacker who plans to kill two or more innocent individuals (who are owed duties like those owed adults). (P2) If an abortion doctor is a morally responsible attacker who plans to kill two or more innocent individuals, then it is permissible to assassinate abortion doctors. (C1) Hence, it is permissible to assassinate abortion doctors. [(P1), (P2)] Premise (P1) rests on the following pro-­life assumption: Abortion is as wrong as killing adult people and wrong for the same reason. If, in addition to a plan, a trying is necessary to make killing the Nazi worker justified, then the above argument should be changed to include a planning-­and-­ trying condition instead of merely a planning condition. The two-­or-­more-­innocent-­individuals condition is designed to do two things. It fits the case into simple utility calculations and thereby avoids some issues concerning trading off one life for another. It also illustrates a way in which, on the pro-­life position, abortion doctors are similar to the Nazi worker. Premise (P2) rests on the following assumptions: Assumption 1: Lethal Defense of Others. If a morally responsible attacker plans to kill two or more innocent individuals (who are owed duties like those owed adults), then defensive violence against him is permissible. Permissible defensive violence must satisfy any constraints on defensive violence. The list often includes things such as imminence, necessity, proportionality, and discrimination. If these constraints are met by lethal defensive

Forfeiture and Killing Abortion Doctors  89 violence, then it is permitted. This assumption is consistent with the different theoretical justifications of defensive violence, such as right forfeiture, culpability, desert, fairness, or consequentialism.12 Later on I address whether the moral-­responsibility condition is relevant. One might think that forfeiture focuses on whether one is a threat, not whether the person is blameworthy for being a threat. Alternatively, one might think that the argument works only if the Nazi worker and abortion doctor are equally blameworthy for what they do and they are not. I think the first is true and the second false, but this is a helpful first pass at the argument. The second assumption relates abortion doctors to the antecedent of the first assumption. Assumption 2: Abortion Doctor. An abortion doctor is a morally responsible attacker who plans to kill two or more innocent individuals (who are owed duties like those owed adults). If he didn’t plan to kill two or more fetuses, then he would not be an abortion doctor but another type of doctor. Note my argument works equally well for abortion providers who are not doctors, I have chosen to focus on the latter because of the contemporary pro-­life violence that has attracted the most attention. In most cases, an abortion doctor is morally responsible because he is in general morally competent. Depending on the account, what makes someone morally responsible is that he is reasons-­responsive, knows the true and the good, can revise his inner self, has freedom of the will and action, has libertarian free will, and so on.13 His responsibility, in general, is independent of whether he is negligent or worse with regard to the wrongness of abortion. By analogy, consider the following case: Case 2: Stalin’s Executioner Boris is a well-­thought-­out executioner for Stalin. He kills Stalin’s political enemies. His actions intuitively seem wrong to him, so he consults what he believes are the most reliable political, moral, and religious experts he knows. They all tell him that his executions are not merely permissible but also obligatory, and he relies on their moral expertise in the same way that he relies on physicians for their medical expertise. Boris is morally responsible even if he is not negligent or akratic (that is, he is blameless) with regard to his wrongful executions. It intuitively seems that Boris’s victims may use lethal force to defend themselves against him even if he would not be blameworthy were he to execute them. Table 4.2, then, summarizes my argument. Let us turn to objections to the argument.

90  Abortion Doctors Table 4.2  Argument Summary Premise

Content

Assumptions

(P1)

An abortion doctor is a morally responsible attacker who plans to kill two or more innocent individuals (who are owed duties like those owed adults). If an abortion doctor is a morally responsible attacker who plans to kill two or more innocent individuals, then it is permissible to assassinate abortion doctors.

Abortion is as wrong as killing adult people and is wrong for the same reason

(P2)

If a morally responsible attacker plans to kill two or more innocent individuals, then lethal defensive violence against him is permissible.

Part Three: Objections Objection 1: Pro-­Lifers Are Pacifists An objector might argue that it is always wrong to kill someone, intentionally kill someone, commit violence, intentionally commit violence, and so on.14 If this is a commitment of the pro-­life position, then it is rather implausible. This would rule out defensive war and lethal protection of children being slaughtered. For example, the Catholic Church is pro-­life but holds that some wars are permissible.15 In some accounts, the concept of having a right includes the permission to defend it.16 If this is correct, and I doubt it is, then the right to life includes permission to use just violence to defend it, perhaps even lethal violence. One might think that as a substantive matter, having a right includes the permission to defend it without thinking that this is a conceptual truth. Objection 2: Abortion Doctors Are Not Blameworthy for Their Actions A second objection is that abortion doctors are not morally responsible for their actions in the way required for premise (P1) because they are not blameworthy for killing fetuses. Blameworthiness requires an individual be at least negligent with regard to the wrongness of his action. An abortion doctor might not be negligent in judging abortion permissible, even if he is wrong. Such doctors might, on average, not be negligent because of the superficially attractive, but unsound, pro-­choice arguments or because the social psychological factors in medicine would overcome the moral qualms of reasonable people in the same situation.17 The problem with this objection is that the responsibility that must be present is just the general competence necessary for moral responsibility in general rather than praiseworthiness or blameworthiness for performing an

Forfeiture and Killing Abortion Doctors  91 attack. This is why Boris’s intended victims can defend themselves even if he is not blameworthy for attacking them. Shortly, I will defend the notion that a threat can be killed even if he is not responsible, but if responsibility matters, Boris has it. In some accounts, and ones I am sympathetic to, moral responsibility is not even necessary for justified self-­defense. Consider the following case: Case 3: Psychotic Aggressor A woman’s companion in an elevator goes berserk and attacks her with a knife. There is no escape: the only way for her to avoid serious bodily harm or even death is to kill him with her gun. The assailant acts purposely in the sense that he means to further his aggressive end. He does act in a frenzy or in a fit, yet it is clear that his conduct is non-­ responsible. If he were brought to trial for his attack, he would have a valid defense of insanity.18 Intuitively, it seems that such defense is permissible even though the psychotic attacker is not morally responsible. If this is true for self-­defense, then it is likely true for the defense of others.19 In fact, it intuitively seems that an individual need not even perform an act (as opposed to merely being acted on) in order to subject to justified defensive violence.20 Case 4: Innocent Threat An aggressor picks up a third party and throws him at you down at the bottom of a deep well. The third party is innocent and a threat; had he chosen to launch himself at you in that trajectory he would be an aggressor. Even though the falling person would survive his fall onto you, you use your ray gun to disintegrate the falling body before it crushes and kills you.21 Again, it seems that the person at the bottom of the well may use lethal force to defend herself even though the third-­party threat does not perform an act, let alone an act for which he is responsible. On a different account, blameworthiness is necessary for right forfeiture and permissible defensive violence.22 Consider a case when two people are packing ray guns, are flying through the air in a tornado, and will collide killing each other unless one obliterates the other. In this account, each has the right to obliterate the other. I find this implausible because right forfeiture intuitively seems to be explained by what is done or about to be done to another, not by what is going on in someone’s head. However, if this blameworthiness theory is correct, this is compatible with my argument because abortion doctors are threats and are more blameworthy than fetuses or their defenders on any plausible pro-­life position.

92  Abortion Doctors If the forfeiture theory asserts that moral responsibility is a necessary condition, rather than blameworthiness, then abortion doctors also satisfy that condition and fetuses don’t satisfy it. One might claim the women are responsible for the fetus’ predicament because they engaged in consensual sex and thus created a foreseeable risk, but this is consistent with the abortion doctor also being responsible for his being a threat to the fetus.23 A common pro-­life position is that a woman may remove a fetus if it threatens her life with the foreknowledge that this removal will bring about the fetus’ death, so this line of pro-­life thought is committed to neither moral responsibility nor an act being necessary for justified lethal defense.24 The doctrine of double effect thinking treats the fetus’s removal and invariable death as not a killing, but parallel reasoning could be done with regard to the endangered person’s response in Psychotic Aggressor and Innocent Threat. The shooting and ray-­gunning would be acts that disable an attacker and merely have the foreseen side effect of bringing about the attacker’s death. Thus, because he is morally responsible, an abortion doctor satisfies the relevant responsibility condition, but even if he did not, he would still likely be a legitimate target of defensive violence because he is a threat. Objection 3: An Abortion Doctor Has a Partial Justification A third objection is that an abortion doctor has a partial justification and so while fetus-­defenders may use violence, lethal self-­defense is disproportionate and therefore wrong.25 The objector claims that because the fetus is wrongfully trespassing on the woman’s body, the trespass lessens the violence that is permitted on the fetus’s behalf. On this objection, the abortion doctor inherits some of the moral leeway the pregnant woman when acting as her agent. Of course, the moral leeway is not strong enough to permit lethal defense; otherwise, this would contradict the pro-­life position. The idea here is that if one individual is burdening a second, the second’s use of violence to eliminate the burden is not as wrong as it would be were the first not a burden. For example, consider a case when a parachutist breaks his neck on a tree and ends up on top of a homeowner. The parachutist has to stay on top of him for weeks if he is to live. It might be wrong for the homeowner to kill the trespasser, but it is less wrong than if the parachutist were not burdening him. A similar thing might be true of the person hooked up to Thomson’s violinist.26 Partial justification does not undermine the case for lethal self-­defense. It is unclear if this is because the justification is not lessened or is lessened but still sufficient to justify such defensive violence. To see this, consider the following case: Case 5: Star Chamber27 There are a bunch of vigilantes who go about killing serial batterers and rapists following star-­chamber rulings finding them guilty. The

Forfeiture and Killing Abortion Doctors  93 star-­chamber rulings are done in secret by eminent judges who look at batterers and rapists found not guilty due to technicalities (for example, probative facts are excluded for policy reasons). Consider, for example, Fourth Amendment exclusionary rules and the prohibition on introducing evidence regarding past convictions. Assume that battery and rape do not warrant the death penalty. A self-­appointed defender of batterers and rapists uses lethal force to defend them against star chamber–hired vigilantes because this is the only way to save their lives. Let us assume that the vigilantes’ partial justification is, in fact, equal to that of an abortion doctor. While the case is complex, it intuitively seems that such force is permissible even though the star-­chamber team has a partial justification for killing them. It is unclear whether the permissibility of doing so is as strong when the vigilantes target wrongdoers as when they accidentally target innocents, but in either case, defense of others allows for lethal defense even when the others have done things to make their rights less stringent. The objector might respond that the difference is that the vigilante does not have the same partial justification as the abortion doctor because the vigilantes are (a) in a worse epistemic position (and thus have less of an excuse), (b) takes the law into their own hands, and (c) are not the agents of the intended victim.28 If condition (a) and (c) are less true of the vigilante, then the case can be tweaked to eliminate these differences. Condition (b) is not enough to make the difference between permissible and wrongful killing as can be seen in that the legality of the Nazi worker’s job is of minor importance. It might also be argued that the doctor’s violence is defensive, whereas the vigilantes’ violence is punitive, and that the former is a stronger moral factor. This might be so, but for the doctor’s liability to be different from the vigilante, there would have to be a big difference in the right-­making aspect of what is done. This seems to come perilously close to making abortion morally permissible. In addition, we can imagine that the vigilantes only target those who are extraordinarily likely to commit more severe violence so that there is a defensive aspect to what they do. Condition (a) is irrelevant for another reason. It likely goes to whether the abortion doctor has an excuse rather than a justification. Even if the abortion doctor has more of an excuse, this does not make his action any less wrong. Nor does it reduce permissible defensive force much, if at all. A woman may use nearly as much defensive force for the psychotic attacker or rapist as she can against the fully culpable one and, in my account, she may use the same amount.29 Even if she may not use nearly as much force so long as she can use lethal force against a psychotic attacker or rapist, the argument stands. Objection 4: An Abortion Doctor Has a Partial Excuse A fourth objection is that an abortion doctor has an excuse, or at least a partial excuse, rather than a partial justification. The abortion doctor has

94  Abortion Doctors a partial excuse based on the seemingly good (but in fact bad) arguments for abortion, situationism, or lesser psychological identification with the fetus. Again, this objection fails if excuses do not significantly diminish the severity of defensive violence permitted if they diminish it at all. To see this, let us imagine a variant in the Zyklon B case. The worker is a true believer in Nazism. He was a member of the Nazi Youth Corps, and all the social psychological factors in his life have supported Nazism. His childhood was such that any person raised in his situation would have been an enthusiastic Nazi and would not have opposed doing such a job, were he conscripted to do so (as was the Nazi worker). Still, it intuitively seems that he may be killed even though his excuse is at least as great, and likely much greater, than that of the abortion doctor. Objection 5: Killing an Abortion Doctor Is Wrong Because It Violates the Doctrine of Double Effect A fifth objection is that killing an abortion doctor is wrong because it violates the doctrine of double effect. If this were true and if the doctrine of double effects were to rule out the killing of morally responsible threats on their way to kill innocents, then the doctrine would in effect amount to a type of pacifism, at least with regard to killing. This is implausible. If instead the doctrine of double effect were to allow lethal force so long as it is aimed at an individual qua threat or combatant rather than qua person, then it would allow pro-­life resistance groups to assassinate abortion doctors much as it allows British fighter pilots to target the Nazi bomber pilots. Objection 6: Killing an Abortion Doctor Is Wrong Because There Is No Permission From a Third Party to Act Defensively On this objection, one can act in defense of another only if one has permission to act on the other’s right. This requires a grant of permission and fetuses can’t grant permission. This is a problem with the forfeiture theory of defensive violence and a serious one. Fortunately, we can sidestep it here. If the problem does not make the assassination wrong in the Zyklon B case, when the Jews in the death camp did not give permission to Jewish resistance, then there is no reason to think that it is wrong in the case of the pro-­life resistance case. Versions of forfeiture theory that hold that aggressors forfeit rights against everyone escape the no-­permission objection; versions of forfeiture theory that hold that forfeiture occurs only between aggressor and victim (although victim can transfer her permission to another) are vulnerable to this objection. Objection 7: If Consequentialism Is True, Then Assassination Is Wrong A consequentialist objector might claim that pro-­life assassination is justified only if the abortion-­related cost exceeds gain. This is likely so because

Forfeiture and Killing Abortion Doctors  95 assassinating and harassing abortion clinics reduces their frequency and each additional life saved adds eighty years of positive utility to the world. It is also reasonable to think that having children will even add to the lives of mothers who are thereby prevented from getting an abortion because of the psychological studies of the effects of motherhood, even unwanted motherhood.30 If we have to trade off a single fetus or an abortion doctor, then the former is worth more whether we consider total utility or average utility per life.31 It is likely the additional utils the fetus gains by not being killed outweigh the utils lost by the doctor and his grieving family members because, on average, the fetus has more years of life ahead of her than does an abortion doctor and will thus add more utility to her total or average per lifetime than would the abortion doctor. This fetus’s generating more utility is further true if, as is likely the case, the abortion doctor completed some or all of his reproduction and the fetus has not yet reproduced.32 Because, on average, aborted fetuses have demographic features that suggest that they will have more children than abortion doctors and children who reproduce at a younger age (thus shortening reproductive cycles), there is even more reason to believe that in terms of utility, a fetus’s life is worth more than an abortion doctor.33 This difference is large enough to outweigh other goods a consequentialist might want to maximize besides utility (for example, objective list goods) if added decades of life outweigh relatively small gains in things like meaningful relationships and knowledge. Consequentialists might also be committed to assassinating contraception providers if doing so would maximize the good, perhaps by providing for a greater total amount of well-­being. This is a distasteful implication, but not a problem for the central argument in this article. Perhaps the consequentialist can avoid the result by accepting a person-­affecting theory (that is, only the lives of individuals made better or worse by the act in question count), but this does nothing to defuse the above argument if we assume that a fetus’s life almost always goes worse when it is killed.34 Objection 8: Fetuses Are Going to Heaven, so Killing Them Does Not Harm Them It might be objected that fetuses are going to heaven, which is an infinite benefit to each of them, so there is no harm that much be prevented.35 Here the idea is that being aborted is good for a fetus because it goes to heaven and that it is wrong to kill abortion doctors because dead abortion doctors cannot help fetuses get to heaven. If true, this would make the killing of fetuses permissible, if not obligatory, because the expected gain (an increased change of an infinitely valuable life) would override any non-­absolute side-­constraint against killing. This is inconsistent with the pro-­life position.

96  Abortion Doctors Objection 9: A Constraint on Self-­Defense Is Not Met A ninth objection is that a constraint on self-­defense is not met.36 Specifically, killing an abortion doctor would not satisfy the imminence, necessity, proportionality, or discrimination requirements. This might be because killing will not actually decrease the number of abortions. Alternatively, it might be because abortion doctors could always see the light and decide to no longer kill fetuses. Of course, both objections might be equally true in the Zyklon B case, and it does not intuitively seem that it is wrong to kill the Nazi worker. In any case, pro-­life violence toward clinics does, at least in the short term, reduce the number of abortions, and thus, such violence meets the just-­ killing constraints.37 The more basic problem with this objection, though, is that imminence, necessity, and proportionality are not necessary requirements for just self-­ defense, and the discrimination requirement is implicit in the main argument. Consider that in both of the following cases, the defensive action is permissible, and yet the defensive violence is neither necessary nor proportionate to any good achieved. Case 6: Prison Attack In prison, the Aryan Brotherhood decides to send a message to the Jewish inmates by giving one Jewish inmate a severe beating, thereby showing the rest that they are all vulnerable and should transfer out of C-­Block. They attack Morty. He knows that any defensive violence is unlikely to stop the attack and, in fact, is likely to make it even more savage. Case 7: Cavalry Defense Polish horse cavalry face overwhelming force by a Nazi blitzkrieg. Cavalry members know that launching horse-­based attacks will likely result in their death, their horses’ death, and the fruitless killing of a few Nazi soldiers. In these cases, it intuitively seems that such defensive violence is permissible even though it is neither necessary nor sufficient to prevent the attack, nor is the harm caused proportional to some benefit the defense brings about. Imminence fares no better. In general, holding other factors constant, temporal distance is in itself no more relevant to permissible defense than is spatial distance. Imminence is merely an epistemic guide to factors such as necessity or proportionality. In any case, abortion doctors on the way to work are an imminent threat as is the Nazi worker on his way to work. It might be argued that Morty’s and the Polish cavalry’s acts are justified but are punishment rather than defense. If this is correct, and I don’t think it is, then it shows that a lot of apparently defensive violence is actually

Forfeiture and Killing Abortion Doctors  97 justified punishment. This could include the resistance’s and the assassin’s violence. Table 4.3 is a summary of the objections and why they fail. My theory of defensive violence is that, except in the case of a consequentialist override, it is permissible when, and only when, an individual forfeits a right. In this context, an individual forfeits a right in virtue of being an unjust threat. An individual is an unjust threat when, and only when, he poses a significant risk of right infringement and, perhaps, harm. This need not be the result of something for which he is morally responsible. This account of forfeiture is bilateral in that an unjust threat’s rights are forfeited only with regard to an individual who is at risk. This account permits defensive violence for any reason, even if done without awareness that it prevents a threatened attack. It is thus a thoroughly objective account and independent of fault, blame, or the threat’s or defender’s mental states. The forfeited violence permits proportional violence, but it is unclear whether proportionality operates in a straightforward manner. The preceding argument, though, need not rest on this particular justification of self-­defense and is compatible with most, if not all, of the leading justifications for it.

Table 4.3   Objections to Assassinating Abortion Doctors #

Content

Response

1

Assassination is wrong because it is always wrong to kill someone, intentionally kill someone, commit violence, intentionally commit violence, and so on. Assassination is wrong because the abortion doctor is not morally responsible for his actions. Assassination is wrong because an abortion doctor has a partial justification.

Implausible

2 3 4 5 6 7 8 9

Assassination is wrong because an abortion doctor has a partial excuse. Assassination is wrong because it runs afoul the doctrine of double effect. Assassination is wrong because the fetus did not give the assassin permission to kill the abortion doctor. Assassination is wrong because it does not maximize the good. Assassination is wrong because fetuses are going to heaven and hence are not harmed by abortion. Assassination is wrong because a constraint on self-defense is not met.

Responsibility irrelevant but likely present. Partial justification compatible with lethal selfdefense being permissible Irrelevant False, but in any case, the doctrine is likely satisfied. Implausible Assassination usually increases net utility. If true, then the pro-life position is false. The constraints are false but likely met anyway.

98  Abortion Doctors

Part Four: An Epistemic Argument Against Assassination A different type of objection to the argument for assassination is epistemic. This is a matter of what private citizens believe or know relative to what government officials believe or know. One concern is whether epistemic considerations are the sort of thing that can ground duties. We often think that duties are grounded by consequences (for example, utility), the moral value of an individual (for example, Kantian ends), autonomy, virtue, agreement (actual or hypothetical), rationality, or rights. Belief and knowledge are arguably somewhat independent of these. Also, belief and knowledge intuitively seem relevant to blameworthiness rather than rightness or wrongness, where the latter is the realm of duties. It might be thought that belief and knowledge are relevant to certain mental states (intention and motivation) that ground duties (and rightness). This can be seen in the doctrine of double effect. The problems with this notion are that duties focus on what people can control and that, arguably, they cannot control these types of mental states, at least in a direct-­enough manner. Also, if duties focus on the agent acting from certain motives and the relevant motives are to act from certain duties, then there is a concern about circularity. As mentioned earlier, the biggest concern here is that these mental states intuitively seem to go toward blameworthiness rather than rightness. I think these problems are fatal to belief-­or-­knowledge grounds of duties. However, let us assume this is incorrect and consider whether belief or knowledge might ground a duty to obey the law, at least with regard to strongly contested issues such as abortion. It might be thought inconsistent my claim that people can deliberate and decide on the best course of action and yet they cannot directly control their mental states. They are consistent if the lack of direct control is limited to beliefs and, perhaps, desires. Decisions (and, perhaps, deliberation) might be under our control, while the same is not true of beliefs. The latter can be seen in the extreme difficulty we have believing something when the evidence supports the opposite. For example, once we have witnessed someone commit a serious crime, you cannot directly make yourself believe that he didn’t do so. One proponent of obedience to the government on contested issues might argue that federal agents and military workers should take into account leaders’ views on relevant issues (for example, abortion’s morality or legality) in some way. This might involve a substitution or addition of reasons or a more careful consideration of one’s own reasons. For example, a private citizen might substitute his government’s assessment of the balance of reasons for abortion for his view that it is immoral. Alternatively, he might add the government’s assessment to his own assessment, thereby creating another pro or con, and perhaps a weighty one. He might use the government’s assessment as a reliable indicator of the balance of reasons in the same way he uses an accountant’s analysis of his taxes as evidence of what

Forfeiture and Killing Abortion Doctors  99 should pay if he wants to avoid an audit. Similarly, a running back might use the quarterback’s announcing a play as a reliable indicator of how best to coordinate with his teammates. Taking leaders’ views into account might be rational, then, because they know more or play a coordination role. David Estlund takes this approach.38 He argues that whether a soldier is obligated to obey ordinary (including lethal) commands depends on whether the command is (or is not) too far from a just response, in light of a reasonable view of the facts, by a legitimate authority that has, in a publicly recognizable way, a general capacity to respect justice of waging and fighting wars.39 A similar approach might be taken by pro-­lifers deciding whether to assassinate abortion doctors. There is an issue as to whether the substitution or addition of reasons makes sense.40 If after much reasoning, an individual decides what the best course of action is, it is irrational to do an act that reduces the likelihood of his doing the best course of action. Let us leave aside whether the best course of action should be understood in terms of rightness, goodness, agreed-­on goals, helping children, or something else. This is analogous to how act-­ utilitarians view it as irrational to refrain from doing a utility-­maximizing act on account of it not satisfying the best rule. The view that an individual should use his government’s assessment as a reliable indicator of the balance of reasons only creates a duty to follow the law when the government is better able to assess the factors that determine whether an act should be taken. There is no obvious reason to believe that this will always be the case and that the individual will not know when it is not the case. For example, it is not obvious that legislators know more than Notre Dame philosophers about when life begins, the essence of a person, or whether the fetus is violating a woman’s bodily rights. Only were this true, would the reliable-­indicator account ground the duty to always refrain from killing abortion doctors. Even if both conditions were present, this would still not produce a duty to always obey a law. It would indicate that the individual’s own assessment of reasons supports satisfying the content of the law, but this does not entail a duty. This is because duties to do actions are not coextensive with actions supported by the balance of reasons. For example, the balance of reasons might support a person eating one cold cereal over a second (for example, he likes Cheerios more, and it is both cheaper and healthier), but it does not follow he has a duty to do so. Similarly, the balance of reasons might support Al marrying Betty (they are very similar, and similarity predicts success in relationships), but it does not follow that he has a duty to marry her. He might love Carol more, and it is morally permissible, albeit prudentially irrational, to marry her. In the U.S., given the history of poor reasoning regarding abortion, the degree to which people and government officials are split, and the lack of serious philosophical discussion among legislators, there is little reason educated individuals cannot tell when laws to believe that bright, well-­

100  Abortion Doctors Table 4.4 Theory

Objections

Citizens have a duty to obey the law on abortion because it relates to reasons they should substitute or add to their own.

1. Belief and knowledge are relevant to blameworthiness, not rightness. The latter is relevant to duties. 2. Substitution or addition of reasons does not make sense. 3. A government’s assessment of the reasons is not always better than a private citizen’s assessment. In some cases, a citizen knows this. 4. Duties do not flow automatically from the balance of reasons

regarding abortion reflect a government’s incorrect assessment of the balance of reasons. If we confine the epistemic account to laws that are moral and legal (that is, do not conflict with a more fundamental law such as the Constitution), then this concern goes away but only at the expense of making the epistemic argument useless for all meaningful issues of morality and legality a potential assassin might face. Also, on the reliable-­indicator account this would ground at most a permission to do an act rather than a duty when the government’s judgment concerns what is morally and legally permissible rather than obligatory. The epistemic theory holds that the duty to obey the law results because a citizen should substitute, add, or use as a reliable indicator his government’s assessment of reasons for an action. The substitution and addition views arguably do not make sense because they reduce the likelihood of the individual making the correct assessment. The reliable-­indicator view is false because it mistakenly depends on private citizens never being able to know when their government’s assessment is incorrect. This is especially unlikely when we consider flux in American law regarding abortion, contraception, and sodomy. Even if it were true, this still would not generate a duty to always obey a law regarding abortion because duties do not flow automatically from the balance of reasons. Table 4.4 summarizes the findings in this section.

Part Five: Conclusion In this chapter, I argued that if the pro-­life position is true, then it is permissible to assassinate abortion doctors. My argument rested on two premises. First, lethal violence may sometimes to be used to defend innocent parties. Second, if the pro-­life position is true, then, sometimes, assassinating abortion doctors is an instance of such defense. I then looked at a series of

Forfeiture and Killing Abortion Doctors  101 objections and found that they all failed. Hence, if the pro-­life position is true, then it is, in some cases, permissible to assassinate abortion doctors. The possible cases likely include the actual assassinations of abortion doctors, such as those mentioned at the beginning of the chapter. My conclusion here is a conditional. If violence against abortion doctors is wrong, then it follows that the pro-­life position is false. If the pro-­life position is true, then such violence is permissible.41

Notes   1 See Alesha E. Doan, Opposition and Intimidation: The Abortion Wars and Strategies of Political Harassment (Ann Arbor: University of Michigan, 2007), 23.   2 See, for example, National Abortion Federation, “Violence Statistics and History,” April 30, 2015, http://prochoice.org/education-­ and-­ advocacy/violence/ violence-­statistics-­and-­history/ and National Abortion Federation, “Incidence of Violence & Disruption Against Abortion Providers in the U.S. & Canada,” 2009.   3 See “The Death of Dr. Gunn,” The New York Times, March 12, 1993, www. nytimes.com/1993/03/12/opinion/the-­death-­of-­dr-­gunn.html.  4 See “Anti-­ Choice Violence and Intimidation,” NARAL Pro-­ Choice America Foundation, January 1, 2010, www.prochoiceamerica.org/assets/files/abortion-­ access-­to-­abortion-­violence.pdf.   5 David Rhode, “Sniper Attacks on Doctors Create Climate of Fear in Canada,” New York Times, October 29, 1998, www.nytimes.com/1998/10/29/nyregion/ sniper-­attacks-­on-­doctors-­create-­climate-­of-­fear-­in-­canada.html.  6 Joe Stumpe and Monica Davey, “Abortion Doctor Shot to Death in Kansas Church,” The New York Times, May 31, 2009, www.nytimes.com/2009/06/01/ us/01tiller.html?pagewanted=all&_r=0.   7 See “Pro-­life Proclamation Against Violence,” American Life League, November 30, 2005, www.all.org/article/index/id/MjYzNA.  8 See, for example, Life Site News, “All Statements From Pro Life Groups Condemning Tiller Murder,” June 1, 2009, www.lifesitenews.com/news/all-­ statements-­from-­pro-­life-­groups-­condemning-­tiller-­murder.   9 The 10-­to-­1 reprisal was the announced response to resistance killing. See Reb Bennett, Under the Shadow of the Swastika: The Moral Dilemmas of Resistance and Collaboration in Hitler’s Europe (New York: New York University Press, 1999). 10 The “part of or identical to a person or human organism” might be necessary to handle the relation of a zygote that splits and the person or human organism into which it develops and cloned skin cell that develops into a person or organism. For a discussion of these matters, see David Hershenov, “Fission and Confusion,” Christian Bioethics 12 (2006): 237–254. 11 See Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974). A two-­tier account of killing that makes it equally wrong to kill people but killing nonpeople depends on the degree of harm can be seen in Jeff McMahan, The Ethics of Killing: Problems at the Margin of Life (New York: Oxford University Press, 2002). 12 A natural view is that the attacker forfeits his right against the intended victim, which constitutes or results in the victim having permission to defend herself and do so with violence if necessary. For the forfeiture notion in the context of punishment, see Stephen Kershnar, “The Structure of Rights Forfeiture in the Context of Culpable Wrongdoing,” Philosophia 29 (2002): 57–88, A. John

102  Abortion Doctors Simmons, “Locke and the Right to Punish,” in A. John Simmons, Marshall Cohen, Joshua Cohen, and Charles Beitz, eds., Punishment (Princeton: Princeton University Press, 1995), 238–252, Judith Jarvis Thomson, The Realm of Rights (Cambridge: Harvard University Press, 1990), 365–366, Vinit Haksar, “Excuses and Voluntary Conduct,” Ethics 96 (1986): 317–329, Murray Rothbard, The Ethics of Liberty (Atlantic Highlands, NJ: Humanities Press, 1982), Alan Goldman, “The Paradox of Punishment,” Philosophy and Public Affairs 9 (1979): 30–46; Roger Pilon, “Criminal Remedies: Restitution, Punishment, or Both?” Ethics 88 (1978): 348–357. These theories differ with regard to whether right forfeiture is a fundamental feature of rights or explained by a more fundamental principle. 13 For reasons-­responsiveness, see John Martin Fischer and Mark Ravizza, Responsibility and Control: A Theory of Moral Responsibility (New York: Cambridge University Press, 1998). For knowledge of the true and the good and the capacity for self-­revision, see Susan Wolf, Freedom Within Reason (New York: Oxford University Press, 1990). For freedom of action and freedom of the will, see Harry Frankfurt, “Freedom of the Will and the Concept of a Person,” Journal of Philosophy 68 (1971): 5–20 and Gary Watson, “Free Agency,” Journal of Philosophy 72 (1975): 205–220. For different models of libertarian free will, see Robert Kane, The Significance of Free Will (New York: Oxford University Press, 1998), Randolph Clarke, Libertarian Accounts of Free Will (New York: Oxford University Press, 2003), and Alfred Mele, Autonomous Agents: From Self-­Control to Autonomy (New York: Oxford University Press, 1995). 14 This is the position of one pro-­life group. See “Pro-­life Proclamation Against Violence,” American Life League. 15 See Catechism of the Catholic Church, 2302–2317. 16 An argument that the derivative rights are justified by the same ground of the primary right and, thus, necessarily accompany them can be seen in Jan Narveson, “Pacifism: A Philosophical Analysis,” Ethics 75:4 (1965): 259–271 and Jan Narveson, “Is Pacifism Consistent?” Ethics 78:2 (1968): 148–150. This is not the case if they are distinct moral relations and the ground (for example, autonomy) allows them to be separately maintained or alienated. 17 For the classic experiment illustrating situationism, the notion that the situation, at least in part explains what someone does, consider obedience to authority, see Stanley Milgram, “Behavioral Study of Obedience,” Journal of Abnormal and Social Psychology 67 (1963): 371–378. For Milgram’s more in-­depth discussion of the effect, see Stanley Milgram, Obedience to Authority: An Experimental View (New York: Harper Collins, 1974). The effect holds across different cultures. See Thomas Blass, “Understanding Behavior in the Milgram Obedience Experiment: The Role of Personality, Situations, and Their Interactions,” Journal of Personality and Social Psychology 60 (1991): 398–413. For a discussion of the prison experiment and its application to Iraq, see Philip Zimbardo, The Lucifer Effect: Understanding How Good People Turn Evil (New York: Random House, 2008). 18 This example comes from George Fletcher, “Proportionality and the Psychotic Aggressor: A Vignette in Comparative Criminal Theory,” Israel Law Review 8 (1973): 171–187. 19 For a parallel treatment of self-­defense and defense of others, see Model Penal Code sections 304: Use of Force in Self-­Protection and 305: Use of Force for the Protection of Other Persons. 20 A defense of the notion that culpability, responsibility, and agency are not necessary for liability to defensive violence, see Judith Jarvis Thomson, “Self-­Defense,” Philosophy and Public Affairs 20 (1991): 283–310.

Forfeiture and Killing Abortion Doctors  103 21 See Robert Nozick, Anarchy, State, and Utopia, 34. 22 The idea here might be that what makes a person liable for defensive violence is that he is blameworthy for initiating or sustaining a threat or one that requires that proportional defensive violence track the degree to which one initiates or sustains a threat. Jeff McMahan puts for a different position. He argues that what makes a person liable for defensive violence is that he is morally responsible for initiating or sustaining an unjust threat. Moral responsibility for the act is a weaker standard than blameworthiness. See Jeff McMahan, “The Basis of Moral Liability to Defensive Killing,” Philosophical Issues 15 (2005): 386–405, esp. 394, Jeff McMahan, “The Ethics of Killing in War,” Ethics 114 (2004): 693–733, esp. 721, and McMahan, The Ethics of Killing: Problems at the Margin of Life. McMahan does not require fault (for example, negligent or intentional wrongdoing), merely that the agent be morally responsible for risk-­imposing activity. See Jeff McMahan, “The Basis of Moral Liability to Defensive Killing,” 394–395. 23 The nature of the purported blameworthiness here is complex. A person is blameworthy for negligently imposing a risk on another only if negligence can ground responsibility. This is incorrect if, as I believe, one cannot be primarily responsible for ignorance. For a defense of this position, see Gideon Rosen, “Skepticism About Moral Responsibility,” Philosophical Perspectives 18 (2004): 295–313; Gideon Rosen, “Culpability and Ignorance,” Proceedings of the Aristotelian Society, CIII: Part 1; Gideon Rosen, “Skepticism About Moral Responsibility,” Philosophical Perspectives 18 (2004): 295–313; Gideon Rosen, “Kleinbart the Oblivious and Other Tales of Ignorance and Responsibility,” Journal of Philosophy 105 (2008): 591–610. Nothing rests on this assumption, however, because if abortion doctors are blameworthy, it is because they are reckless as to the moral status of what they do. 24 See “What Is AAPLOG’s Position on ‘Abortion to Save the Life of the Mother?’” American Association of Pro Life Obstetricians and Gynecologists, April 30, 2015, www.aaplog.org/about-­2/our-­mission-­statement/. 25 I owe this objection to David Hershenov. 26 See Judith Jarvis Thomson, “A Defense of Abortion,” Philosophy and Public Affairs 1 (1971): 47–66, esp. 55. 27 The idea for this case comes from Star Chamber (Twentieth Century Fox, 1983). 28 I owe this objection to David Hershenov. Hershenov’s objection strengthened if fetuses and toddlers have less stringent rights than adults, perhaps because they have weaker interests. For an interesting discussion of the role of legality, see Bertha Alvarez Manninen, “Beyond Abortions: The Implications of Human Life Amendments,” Journal of Social Philosophy 43 (2012): 140–160, esp. 154–156. 29 For a real-­life case of an innocent rapist, see Luke Salkeld, “‘Sexsomniac’ RAF Man Sobs as He Is Cleared of Raping Girl in His Sleep,” DailyMail.com, August 6, 2007, www.dailymail.co.uk/news/article-­473525/Sexsomniac-­RAF-­man-­sobs-­ cleared-­raping-­girl-­sleep.html. 30 The idea for this case comes from Bryan Caplan, “Where Are the Pro-­Life Utilitarians?” Library of Economics and Liberty, April 22, 2015, http://econlog. econlib.org/archives/2015/04/where_are_the_p.html. 31 Things get more complex if we consider average utility per moment per life or the diminishing intrinsic value per util. There are good reasons to doubt these theories of intrinsic goodness. See Thomas Hurka, “Average Utilitarianisms,” Analysis 42 (1982): 65–69 and Theodore Sider, “Might Theory X Be a Theory of Diminishing Marginal Value?” Analysis 51 (1991): 265–271. 32 That a physician has likely completed at least some of her reproduction can be seen in that the average age of a physician is forty-­seven. See B. E. Landon, J. D.

104  Abortion Doctors Reschovsky, H. H. Pham, D. Blumenthal, , “Leaving Medicine: The Consequences of Physician Dissatisfaction,” Med Care 44 (2006): 234–242. 33 Consider the United States. Women of color are far more likely to have abortions. See Zoe Dutton, “Abortion’s Racial Gap,” The Atlantic, September 22, 2014, www.theatlantic.com/health/archive/2014/09/abortions-­racial-­gap/380251/. Black and Hispanic women have significantly higher average fertility rates than do whites (and Asians). See, Jeffrey Passel, Gretchen Livingston, and D'Vera Cohen, “Explaining Why Minority Births Now Outnumber White Birth,” Pew Research Center, May 17, 2012, www.pewsocialtrends.org/2012/05/17/explaining-­why-­ minority-­births-­now-­outnumber-­white-­births/. On average, black and Hispanic women have children earlier than do white women. See “Births by Age and Race of Mother,” InfoPlease, April 30, 2015, www.infoplease.com/ipa/A0005074. html. 34 Person-­affecting theories have a series of problems. First, they produce intransitive rankings of actions or, alternatively, scenarios in which no matter what one does he does the wrong action. Second, they fail to count as a wrong, actions that don’t make anyone better or worse off but create a very large number of extremely miserable people. See G. Arrhenius, “The Person-­Affecting Restriction, Comparativism, and the Moral Status of Potential People,” Ethical Perspectives 10 (2003): 185–195 and Caspar Hare, “Voices From Another World: Must We Respect the Interests of People Who Do Not, and Will Never, Exist?” Ethics 117 (2007): 498–523. 35 Stephen Kershnar argues that the standard doctrine on heaven and hell is inconsistent with the pro-­life position (for example, consider the Catholic position). See Stephen Kershnar, “Hell, Threshold Deontology, and Abortion,” Philosophia Christi 12 (2010): 115–136. 36 I owe this objection to Catherine Nolan. 37 See Mireille Jacobson and Heather Royer, “Aftershocks: The Impact of Clinic Violence on Abortion Services,” June 2, 2010, http://users.nber.org/~jacobson/ JacobsonRoyer6.2.10.pdf. 38 See David Estlund, “On Following Orders in an Unjust War,” The Journal of Political Philosophy 15 (2007): 213–234. A complementary argument by Jeff McMahon argues that some acts are so objectionable that they are not permissible even if they are demanded by just-­and-­important institutions. See McMahan, “The Ethics of Killing in War,” 705. 39 See ibid., 230–231. 40 See Michael Moore, “Authority, Law, and Razian Reasons,” Southern California Law Review 3 & 4 (1989): 827–897. 41 I am grateful to Jim Delaney, Neil Feit, Jon Keller, Eric Kershnar, Catherine Sweeny, members of the PANTC Reading Group, and especially David Hershenov for their extremely helpful comments and criticisms of this chapter.

5

Problems with Forfeiture

In Chapter 6, I argue that the pro-­life position conflicts with the best non-­ consequentialist theory of killing: forfeiture theory. This conflict is not a problem if consequentialism is true. In chapter seven, I argue that, in most cases, consequentialism supports the pro-­life position. Here I argue that the best theory of killing under non-­consequentialism, forfeiture theory, has serious problems. I do not address whether these problems are serious enough to reject non-­consequentialism in general or, perhaps, in the context of killing. Rather, I merely aim to show that the best theory that aims to justify killing under non-­consequentialism is in trouble. This is not a problem for the pro-­life position but likely is for a broader pro-­life worldview to the extent that it is committed to non-­consequentialism. A pro-­lifer cannot simply reject this theory because it is the most plausible non-­consequentialist theory of when defensive violence is permitted. It best explains what happens to an attacker’s right in the case of permissible self-­defense or defense of others. It does so because unlike an override theory (the defender’s right overrides that of the unjust attacker), it does not require a defender against an unjust attacker compensate or apologize for defensive violence because he infringed the attacker’s right. In World War II, for example, it would not require that Russian Jews who defended themselves against Nazi executioners compensate the executioners or apologize to them. Both forfeiture and narrow-­content theory (the content of the right to one’s body or property is narrow in that it does not prohibit just defense) do not morally require a just defender to compensate or apologize to an unjust attacker. The two theories are also extensionally equivalent in that they permit violence under the same circumstances. Forfeiture explains this through the loss of the right, whereas the narrow-­scope theory explains it via the right not prohibiting it. Because the forfeiture condition in the first theory is identical to the permitted violence in the second, they allow the same acts. However, the narrow content theory makes a right’s content depend on when defensive violence is permitted rather than explaining it. Intuitively, we think that rights explain what we may or may not do to

106  Abortion Doctors others, including defensive violence, rather than just reflecting our conclusions on these matters. Any problem the forfeiture theory faces with regard to explaining why and when people lose rights plagues the narrow-­content theory because it must explain why and when the right content doesn’t prohibit things being done to the right holder. The forfeiture theory posits a loss of a right precisely where the narrow-­content theory posits a boundary to the right. Both thus make defensive violence permissible under the same conditions. The different explanations of why (loss of a right versus its limited boundaries) matter with regard to the theory of what justifies rights, but not with regard to what people may or may not do to right holders. Consider, for instance, the justification-­related issue of whether a person can lose an autonomy-­ justified right if he retains his autonomy. Thus, the problem specified in the following about how rights work in particular cases equally plagues both theories. Because people can lose rights through commitments (for example, consent), the loss of a right is not a distinct problem for forfeiture theory. This also counts in its favor. In any case, adopting a narrow scope theory will not help the pro-­life position in the context of abortion because of the extensional equivalence. The three theories (override, forfeiture, and narrow scope) exhaust what can happen to an attacker’s right with regard to a just defender. In the context of just defense, the right is either opposed to the violence (and thus overridden or lost) or not opposed to it. If forfeiture is the best of the three theories and if all three work the same way with regard to abortion-­and other killing-­related cases, then the pro-­lifer is stuck with it. Hence, the pro-­ lifer is not free to sidestep the above arguments by simply rejecting forfeiture theory. Even if she could, the other theories would result in her facing parallel problems. This chapter, then, sets out some concerns with forfeiture theory. These concerns, though, are not unique to it, and thus, there is no safe harbor for the pro-­life position. Still, there is reason to note the weakness in a lynchpin of the best argument for the pro-­choice position. This weakness is also a reason, although perhaps not a strong one, to favor the consequentialist theory of permissible killing and thus its position on abortion.

Part One: How Forfeiture Works Here is a brief account of how forfeiture works. A person loses a right if and only if he waives it or forfeits it.1 Before beginning, it is worth specifying the relevant concepts. One person is a threat if and only if he is all or part of a causal sequence that increases the risk of harm to another. An unjust threat is a threat that occurs via a right-­infringement. An innocent threat is one who is innocent and a threat, but not an attacker. An attacker is one who attacks someone. One person attacks a second if and only if the first tries to cause harm to another. An innocent attacker is an attacker who is

Problems with Forfeiture  107 not blameworthy for his attack. A violent attacker tries to cause harm to another’s body or property. Violence is defensive when it responds to an unjust attack. On a subjective account, it must be intended to respond to an attack. On an objective account, it must be causally connected to blunting an attack. Forfeiture theories explain when it is morally permissible to harm people, make them pay compensation, and punish them. The motivation for this argument is that forfeiture theory provides the best account of self-­defense, punishment, and compensation. In this chapter I focus on defensive violence. The theory asserts that except in the case where violence is necessary to avoid a catastrophe, only those who forfeit their rights are liable for defensive violence. The theory also has implications for which, if any, of the commonly cited restrictions limit defensive violence (imminence, necessity, proportionality, and discrimination). Forfeiture theories vary in terms of whether in order to forfeit a right, an attacker must be blameworthy for an attack or morally responsible for putting another at risk.2 On my account, forfeiture does not require blame or responsibility. Consider the following case: Case 1: Psychotic Aggressor A woman’s companion in an elevator goes berserk and attacks her with a knife. There is no escape: the only way for her to avoid serious bodily harm or even death is to kill him with her gun. The assailant acts purposely in the sense that he means to further his aggressive end. He does act in a frenzy or in a fit, yet it is clear that his conduct is non-­ responsible. If he were brought to trial for his attack, he would have a valid defense of insanity.3 Intuitively, it seems that the woman may defend herself even though the attacker is neither blameworthy for the attack nor responsible for imposing a relevant risk on the woman.4 The explanation for why these responsibility-­ related conditions are irrelevant is that moral rights protect an individual’s autonomy and forfeiture is part of this function. A victim’s autonomy can be set back by acts for which another is not morally responsible as well as ones for which he is responsible. For example, the woman loses her life, and thus, her autonomy in the preceding case whether the attacker is responsible or not. If moral rights rest on the autonomy of the right holder and forfeiture reflects that justification, then forfeiture can occur regardless of whether the attacker is morally responsible. If the attacker doesn’t have rights in virtue of not being morally responsible, whether temporarily or permanently, then forfeiture does not justify defensive violence against him. One can’t lose what he doesn’t have. In such a case, the defender has options similar to what happens when the attacker forfeits his rights.

108  Abortion Doctors

Part Two: Objections to Forfeiture Theory Consider objections to forfeiture theory. First, there are issues regarding how rights can be forfeited when what justifies them (for example, the right-­holder’s autonomy or interest) is still present. Second, forfeiture has to explain a lot. Specifically, it has to explain why military violence is limited by requirements, including, depending on the account, necessity, imminence, proportionality, and discrimination.5 This is a lot of explanatory work. Third, there are discrimination issues. It intuitively seems that many civilians, such as legislators who intentionally cause the military to unjustly attack others are unjust threats and thus forfeit their rights. Yet they are often considered inappropriate targets. If intention to contribute to an unjust attack is not necessary for forfeiture, then it is unclear why military support staff (for example, truckers, cooks, and construction workers) forfeit rights against attack, whereas nonmilitary support workers (for example, farmers) do not. Fourth, forfeiture theory asserts that forfeiture occurs following an attempted attack, rather than a completed one, but it is unclear why an attempt by itself is an injustice at all, let alone one that warrants lethal violence. By itself, an attempt need not trespass on another’s body or property. If any of these problems are fatal, then we need another account of permissible wartime killing. Fifth, there are puzzle cases that forfeiture has trouble handling, such as the issue of what happens to the rights of two qualitatively identical people who simultaneously launch unprovoked attacks against the other. In that case, you have an unstable scenario similar to a liar paradox. Each person either has or lacks the right to defend against the other. If one attacker has the right, then the other does not and vice versa. Yet the two are qualitatively identical, so it is impossible for one to have the right if the other does not.6 Another rival theory, threshold deontology, asserts that consequentialist reasons can justify wartime killing and destruction. A consequentialist override occurs when action is justified because it brings about very good results and the value of these results trump a non-­consequentialist side-­constraint. Even if this is correct, the results must be very good for it to override stringent side-­constraints against killing and destruction. Given that standard trolley and surgeon’s harvest cases indicate that a net saving of five lives is not weighty enough to do so and that many wartime killings do not generate a benefit worth more than five lives, the consequentialist override will not justify many instances of wartime killing.7 In addition, if someone’s right is overridden, compensatory justice requires that the person whose right is overridden be given an apology, if not compensation. However, unjust wartime aggressors intuitively seem to be owed neither. Thus, there is reason to doubt that wartime killing is justified by an overriding of military members’ rights.

Problems with Forfeiture  109 The Achilles’ heel of forfeiture theory is that it depends on an attacker acting unjustly just in case he imposes an increased risk of a right-­infringement (beyond a certain threshold) or imposes a risk that is a right-­infringement. The former account (increased risk of a right-­infringement) is problematic in that posing a risk of right-­infringement is not itself a right-­infringement. Hence, it is not enough to make the attacker’s action unjust. The latter account (increased risk is itself a right-­infringement) is better but still problematic. First, it is not clear how to understand risk. Understood as an increased probability (perhaps a significant increase), this notion conflicts with libertarian freedom because human freedom is arguably incompatible with a specific change in probabilities. It also conflicts with determinism because the latter is incompatible with agents increasing the chance an injustice or harm will occur. This might, however, be a reason to reject libertarian and determinist theories of events rather than drop the notion of risk from an account of what justifies self-­defense. Second, the threshold of risk that justifies defensive violence intuitively seems to be arbitrary. Our acts frequently impose risks on others and it is intuitively implausible that there is a specific increase in risk, above which a risk imposition justifies defensive violence and below which it does not. Third, if there were a determinate threshold, it would likely rest on consequentialist considerations such as the (probability-­adjusted) benefit to the individual who imposes a risk and the (probability-­adjusted) harm to the one put at risk. For example, consider whether a diseased person who takes a public bus infringes on another passenger’s right by risking her health. Imagine that he has Ebola. This depends on what the sick man gains and what the healthy rider loses if the sick man takes the bus. The balance of costs and benefits might also involve third parties. Consider, for example, what is true of the population of bus riders. The problem is that rights do not rest on such consequentialist considerations, especially if rights trump consequences.8 Fourth, the account generates an infinite regress. Forfeiture based on increased risk depends on two claims: (1) There is a right against unjust risk. This is true because just defenders may impose very severe risks on an attacker. It is an unjust risk, rather than any risk, that justifies defensive violence. (2) A risk is unjust when, and only when, it infringes on a right. This is because an injustice is a right-­infringement. But the right in question is itself a right against risk. If a defender successfully prevents an attack, then other rights (for example, rights to property or body) are sometimes not infringed. When we combine (1) and (2), the right against an unjust risk becomes the right against a risk of an unjust risk, which, in turn, becomes the right against a risk of a risk of an unjust risk and so on. One could escape this by viewing defensive violence justified only if it succeeds in lessoning or preventing an attack, but then ineffective defensive violence is wrong. This is implausible as, on this account, a woman who strikes a rapist to make him stop would act wrongly if her strike accomplishes nothing. This is hard to believe.

110  Abortion Doctors A forfeiture theorist can argue that narrow-­scope theory faces the same issue because it is part of the boundary for the relevant right (for example, the right against violence). The consent theory escapes this objection, but faces the fatal problem that unjust attackers don’t consent to allow those whom they target to defend themselves. For now, let us consider whether forfeiture theory, aside from the difficulty with risk, is the best account of wartime killing. In summary, forfeiture theory is a better account of individual defense than competitor theories, such as narrow scope theory, permissible infringement, and consent theory. In this account, forfeiture is a primitive feature of how rights work and only affects the Hohfedian relations (claim, liberty, power, and immunity) between the one who attacks and the one who defends.

Part Three: The Case of Symmetrical Attackers In this account, someone forfeits if and only if he is an unjust threat. More specifically, necessarily, one person forfeits in relation to a second if and only if the first is an unjust threat in relation to the second. There are puzzle cases that forfeiture has trouble handling, such as the issue of what happens to the rights of two qualitatively identical people who simultaneously launch unprovoked attacks against the other. In that case, you have an unstable scenario similar to a liar paradox. This is the Problem of Symmetrical Attackers. Each person either has or lacks the right to defend against the other. If one attacker has the right, then the other does not and vice versa. Yet the two are qualitatively identical, so it is impossible for one to have the right if the other does not.9 Here are some versions of the problem. Case 2: Symmetrical Attacker Case (SAC) Al and Bob are doppelgangers. They both attack the other for no good reason (for example, they love the same woman and wish to see a rival suitor dead). Case 3: Misunderstood Symmetrical Attacker Case (M-­SAC) Al and Bob are doppelgangers. They both mistakenly but justifiably think that the other is about to attack him. They both respond with violence that is necessary and that they think is necessary to prevent the attack. As a result, both are not morally blameworthy for their violent response. Here is the argument. (P1) If forfeiture theory is true, then it explains what morally happens in the M-­SAC. (P2) Forfeiture theory does explain what morally happens in M-­SAC. (C1) Hence, forfeiture theory is false. [(P1), (P2)]

Problems with Forfeiture  111 Table 5.1  No Explanation Solution

Objections

A forfeits, B does not forfeit B forfeits, A does not forfeit A & B forfeit

Arbitrary

A & B do not forfeit A and B neither forfeit nor do not forfeit

Arbitrary If A forfeits (a right), then B is not an unjust threat. Someone forfeits if and only if he is an unjust threat. Hence, B does not forfeit. [1, 2] If A does not forfeit (a right), then B is an unjust threat. Someone forfeits if and only if he is an unjust threat. Hence, B forfeits. [1, 2] If A neither forfeits nor does not forfeit, then B neither has a duty nor lacks a duty not to attack A. A person cannot have and lack a duty to do something. Hence, it is false that A neither forfeits nor does not forfeit. [1, 2]

Premise (P2) rests on the notion that there are only five candidate solutions to the problem, and none succeed (see Table 5.1). This problem is not confined to defensive violence. Specifically, there are other cases regarding compensatory justice and retributivism that involve the same pattern as M-­SAC. Consider the following. Case 4: Symmetrical Compensatory Justice Same facts as M-­SAC. Al and Bob are injured and demand compensation. One owes compensation if he unjustly harmed another. A similar problem occurs where the following true: The state should punish a person if he committed an unjust act of force, fraud, or theft and was fully blameworthy for doing so. The Problem of Symmetrical Attackers equally plagues the narrow scope, override, and consent theories of permissible defensive violence. Consider consent. Case 5: Consent Charlie consents to have sex with Darlene if and only if Darlene does not consent to have sex with Charlie and vice versa (for example, each believes the other is drunk as a skunk and announces that his or her consent hereby rests on the other being over a 0.2% blood alcohol content). Each believes the other has not consented, and so they have sex. They’re motivated by the sexual charge they get by having sex with a drunken person and then imagining the shame and degradation the drunken person will feel afterward.10

112  Abortion Doctors The narrow scope theory faces the same problem in that the scope of a right allows violence when the other engages in an unjust attack. The override theory has the same problem in that the consequentialist gain required to override an attacker’s right to her body or property might vary depending on whether the attack is just or an unjust. In fact, this view can be seen in theories that assert when the attacker is justified in acting, his justification morally prevents him from being liable to defensive violence. That is, justification defeats liability.11 The problem does not apply to a blame-­based theory of forfeiture. On this theory, a person forfeits a right just in case he is blameworthy for an attack. He is blameworthy just in case he is in general morally responsible, acts voluntarily, and has evidence that the other is not an unjust threat. The information requirement depends on whether the evidence required for blameworthiness requires the person be aware of it or merely that he should have been aware of it. Case 6: Blame Eric and Frank are symmetrically placed doppelgangers. Because of the evil machinations of a third party, each has very strong evidence that the other is unjustly attacking him. The evidence is strong enough to make each person blameless with regard to his defensive violence (or, perhaps, attempted defensive violence). On this account, because both are innocent, each is permitted to use defensive violence. This eliminates the problem. This theory, though, is implausible. It suggests that an innocent attacker (see, for example, Case 1: Psychotic Aggressor) has a right to complete his attack. Worse, his innocent target, if she knows that he is innocent, is not permitted to defend herself. This is strongly counterintuitive. It also suggests that brains in vats with murderous intent can be killed by the person whom they imagine killing because they forfeit relative to her. This assumes that such brains voluntarily commit an act. Perhaps this act is the forming of a plan to kill someone and then willing that it occur. By itself, a brain lacks the power to cause someone’s death, but this is not required for blameworthiness. The internalist blame-­ based theory also undermines standard side-­ constraints on just defensive violence (for example, discrimination, imminence, necessity, and proportionality) because it is hard to see how these operate if they also depend on internalist features, that is, the events as envisioned by the attacker. If the side-­constraints are externalist, then what justifies forfeiture is solely a matter of what’s in the head, but the limits on forfeiture-­permitted violence are in part outside the head. That is, they focus on external features, perhaps including factors such as whether, as an objective matter, an attacker is an unjust threat. This is implausible because it suggests that there are two different justifications for defensive violence:

Problems with Forfeiture  113 the internalist justification of forfeiture and the externalist justification of the side-­constraints that limit it, with no clear explanation how to fit them together or, if there were to conflict, which one receives priority. Risk-­based theories focus on whether an individual is responsible for imposing a risk on another even if he is not blameworthy for doing so. This type of theory is subject to the Problem of Symmetrical Attackers. This is because if the risk is justicized (that is, the focus is on the risk of unjust harm rather than the risk of harm), then the problem reappears because forfeiture will in part explain when a risk is just. If the risk is not justicized, then the theory cannot explain why unjust attackers who impose risks forfeit, but just ones do not. If the argument in this section succeeds, then the problem of symmetrical attackers falsifies forfeiture theory. This is a severe problem for the following reason. First, some defensive violence is morally permissible. Second, defensive violence is morally permissible only if the attacker’s right is forfeited. Third, the Problem of the Symmetrical Attackers suggests that forfeiture theory is false.

Part Four: Objections to the Problem of the Symmetrical Attackers The Problem of Symmetrical Attackers applies whether the narrow scope, forfeiture, consent, or override theory is true. The same problem even applies to other non-­consequentialist theories of defensive violence. Consider virtue theory and any desert-­based theories.12 The problem applies to them so long as whether someone is vicious or deserves punishment depends on what evidence he has, there is a symmetrical case when both attackers have sufficient evidence that he is not an unjust aggressor and the other attacker is, and whether one person may (or may not) use defensive violence against a second depends on whether the first is more (or less) virtuous or more (or less) deserving of defensive violence than the second. This can occur whether epistemic justification (and, perhaps, the defeater condition) is internalist or externalist. The problem also plagues some moralized versions of consequentialism, such as desert-­or right-­adjusted consequentialism.13 The problem even concerns consequentialism insofar as it is better that only one person is killed rather than two in M-­SAC, yet the situation is similar to Buridan’s ass in that there is no reason to favor killing one over the other and the people do not have available a mechanism that can randomly choose who should be killed. Consider this case.14 Case 7: Catapult A villain uses catapults to sling doppelgangers, Grant and Hal, toward each other with enough force so that if one hits the other, both will die. Each is innocent and knows this of himself and the other. Each has a ray

114  Abortion Doctors gun capable of disintegrating the other. To prevent suicides, the gun is designed so that it cannot shoot the operator. Neither can communicate to the other. Nor do they have access to a random generator. Furthermore, if God were to rollback what each person does 1,000 times: 500 times Grant shoots his ray gun; 500 times he doesn’t.15 The same is true for Hal. Hence, there is a 50% chance that Grant will shoot. The consequentialist, then, cannot use probabilities to provide a solution. The consequentialist solution is for one person to disintegrate the other. The problem is that there is no reason for one person to do so and the other not. The problem, thus, applies to every plausible candidate theory of defensive violence and does so in much the same way. This leads to the following defense of forfeiture theory. If a problem is equally damaging to every plausible theory of permissible defensive violence, then it is not a reason to reject forfeiture theory. The Problem of Symmetrical Attackers is equally damaging to every plausible theory of permissible defensive violence. Hence, the Problem of Symmetrical Attackers is not a reason to reject forfeiture theory. [(1), (2)] The problem is not damaging to an internalist blame-­based theory of defensive violence, but this theory is implausible. This argument is successful. Still, perhaps there is another way to defuse the problem. To see this consider the following: Bob forfeits if and only if Al does not forfeit. Al and Bob both forfeit or neither forfeits. The problem here is that the sentences are incompatible. The analogy here is to a two-­sentence liar paradox: The below sentence is false. The above sentence is true. Either sentence can be true, but the conjunction cannot. The two-­sentence liar paradox dissolves if the paradox results because the conjunction is not well formed or it involves a set that contains itself as a member. It is not clear that either is true. Even if it were true with regard to the two-­sentence liar paradox, it is not clear that this solution is available to the Problem of Symmetrical Attackers. Rather, the solution lies in falsifying one of the sentences. One might think that the benefit theory of a right can solve this. The benefit theory asserts that what justifies someone having a moral right is that he

Problems with Forfeiture  115 will benefit from the performance of an act or another having a duty.16 This theory might be thought to allow an initial attack being justified or unjustified independent of whether the other has forfeited and then allowing the defensive violence (second-­order response) to depend only on the status of the initial attack. On this account, then, proposition (4) is false in SAC and M-­SAC because both can engage in just defense or unjust defense. If the benefit theory relied on something similar to rule-­consequentialism to set out when someone will benefit from a right, then forfeiture would not parallel the two-­sentence liar paradox. The benefit theory might depend on rule-­consequentialism because we need a way of saying when a class of people would benefit from a type of act being allowed or a duty being imposed on a population. This solution fails if benefit theory or rule-­ consequentialism is false. Rule-­consequentialism asserts that what makes an act wrong is that it does not satisfy the rule or rules that would bring about the best results.17 Versions of rule-­consequentialism differ. On one account, an act is morally wrong if and only if it is forbidden by rules, the acceptance of which would actually maximize the good. Other versions focus on what would maximize the expected good, focus on rule compliance rather than rule acceptance, and make an adjustment for when there is more than one set of rules that has maximally good results. Consider the rule: An individual may kill an innocent attacker. The critic’s idea is that this rule, if it were accepted (or complied with) by all (or most) people, would produce better results than any alternative rule. More specifically, the rule is included in the set or sets of rules that would bring about the best results. The benefit theory/rule-­ consequentialist solution fails. If rule-­ consequentialism fails, even on consequentialist grounds, then the solution does not get off the ground. There are a series of standard objections to rule-­ consequentialism. First, rule-­ consequentialism is either extensionally equivalent to act-­consequentialism or it is incoherent.18 Second, rule-­ consequentialism addresses an epistemic issue (Given our limited knowledge and biases, what procedure is most likely to generate right acts?) rather than the metaphysical issue (What makes an act right?) and it is the latter that is central to moral theory.19 Third, rule-­consequentialism cannot handle conflicts of rules.20 Fourth, the theory has to provide a nonarbitrary degree of compliance or acceptance, and it is not clear that it has the resources to do so. Even if rule-­consequentialism is true, there still needs to be an argument as to why the best rule would permit the killing of innocent threats or attackers. A concern is that in some accounts, the rule-­consequentialist should not count the costs of getting people to move away from their current moral beliefs.21 Without this condition, the moral rules that a population currently holds might be terrible but better than other sets because of the high cost of getting people to change their minds. In addition, failure to screen out this cost might result in relativism about moral codes as it would be more costly to move some societies to a new set of rules than to move others.

116  Abortion Doctors Even if the benefit theory of a right tracks rule-­consequentialism and rule-­ consequentialism survives the previous objections, the proponent of this view still needs to show that the optimal rule does not permit defensive violence when and only when the other person is not an unjust threat and that a person is an unjust threat if and only if he doesn’t waive or forfeit his right to attack. That is, the theory must not include a forfeiture-­like rule. It is plausible that a forfeiture-­like rule would be present given that this rule is widely accepted and provides a disincentive for unjust aggression. That the rule leads to the problem can be seen in the consent-­based version of the problem. In addition, there is good reason to reject the benefit theory. First, interests lead to maximization and rights are supposed to trump utility. Second, whether someone has a right depends on how a claim affects interests of others in the subject’s situation or the subject in other situations. A right’s existence and stringency should not depend on what is true of others who have nothing to do with the right holder. On this theory, whether a person has a right depends on what makes life go better for other people who are in similar circumstances. This is a problem if what justifies a right depends on, and only on, features of the person with a purported right and, perhaps, others who interact with him. Third, the theory has incorrect results with regard to contracts. Specifically, if a third party stands to benefit from the fulfillment of a contract, then, on this theory, he has a right that it is fulfilled. Fourth, intuitively, rights tend to correlate with two-­way liberties (the permission to do or not do something) and two-­way powers (the standing to leave or eliminate a claim or liberty), and the best explanation of this is that rights protect autonomy. Outside of the benefit theory, especially the version linked to rule-­ consequentialism, there are no other plausible ways to reject the problem. This is because other theories of rights, and, in fact, the most plausible version of the benefit theory, hold that whether one loses a right (via consent or forfeiture) depends on the moral status of his attack on another and this leads to the structural similarity to the two-­sentence liar paradox. A solution to the Problem of Symmetrical Attackers is one that makes the status of the initial attack independent of the status of the other’s attack. This allows the initial attack to avoid the inconsistent conjunctive structure of the two-­sentence liar paradox. It would also allow second-­order actions (defensive responses to the initial attack) to avoid the inconsistent structure. Unfortunately, the most promising way to do this fails.

Part Five: Conclusion The forfeiture theory is not falsified by the Problem of Symmetrical Attackers. If a problem is equally damaging to every plausible theory of permissible defensive violence, then it is not a reason to reject forfeiture theory and it is so damaging. A benefit theory of right cannot, however, get us around the problem.22

Problems with Forfeiture  117

Notes   1 A forfeiture theory of just war killing can be seen in David Rodin, War & Self-­ Defense (New York: Oxford University Press, 2002), 70–77. People who assert that a criminal forfeits some of his moral rights include Stephen Kershnar, “The Structure of Rights Forfeiture in the Context of Culpable Wrongdoing,” Philosophia 29 (2002): 57–88, A. John Simmons, “Locke and the Right to Punish,” in A. John Simmons, Marshall Cohen, Joshua Cohen, and Charles Beitz, eds., Punishment (Princeton: Princeton University Press, 1995), 238–252, Judith Jarvis Thomson, The Realm of Rights (Cambridge: Harvard University Press, 1990), 365–366, Vinit Haksar, “Excuses and Voluntary Conduct,” Ethics 96 (1986): 317–329, Murray Rothbard, The Ethics of Liberty (Atlantic Highlands, NJ: Humanities Press, 1982), Alan Goldman, “The Paradox of Punishment,” Philosophy and Public Affairs 9 (1979): 30–46; Roger Pilon, “Criminal Remedies: Restitution, Punishment, or Both?” Ethics 88 (1978): 348–357. These theories differ with regard to whether right forfeiture is a fundamental feature of rights or explained by a more fundamental principle.   2 See Jeff McMahan, Killing in War (Oxford: Clarendon Press, 2009), 51–60, Jeff McMahan, “On the Moral Equality of Combatants,” Journal of Political Philosophy 14 (2006): 377–393, Jeff McMahan, “The Basis of Moral Liability to Defensive Killing,” Philosophical Issues 15 (2005): 386–405.   3 See George Fletcher, “Proportionality and the Psychotic Aggressor: A Vignette in Comparative Criminal Theory,” Israel Law Review 8 (1973): 367–390, esp. 371.   4 For a similar conclusion, see A defense of the notion that culpability, responsibility, and agency are not necessary for liability to defensive violence, see Judith Jarvis Thomson, “Self-­Defense,” Philosophy and Public Affairs 20 (1991): 283– 310 and Judith Jarvis Thomson, “Self-­Defense and Rights,” in William Parent, ed., Rights, Restitution, and Risk (Cambridge, MA: Harvard University Press, 1986).   5 Forfeiture provides a unified account of these constraints, perhaps as primitive features of how forfeiture works. For a discussion of these constraints independent of forfeiture, see Brian Orend, The Morality of War (Orchard Park, NY: Broadview, 2006), ch. 4.   6 Older versions of this paradox can be seen in Stephen Kershnar, “Consent-­Based Permission to Kill People and Break Their Things,” Reason Papers 37 (2015): 34–53. For a developed exploration of this argument, see Tim Campbell, personal communication.   7 See Judith Jarvis Thomson, “The Trolley Problem,” The Yale Law Journal 94 (1985): 1395–1415 and Phillipa Foot, “The Problem of Abortion and the Doctrine of the Double Effect,” Oxford Review 5 (1967): 5–15.  8 Ronald Dworkin, “Rights as Trumps,” in Jeremy Waldron, ed., Theories of Rights (Oxford: Oxford University Press, 1984), 153–167 and Alan Gewirth, “Are There Any Absolute Rights?” in Waldron, Theories of Rights, 81–109. See, also, Hillel Steiner, An Essay on Rights (Oxford: Blackwell, 1994).   9 Older versions of this paradox can be seen in Michael Otsuka, “Killing the Innocent in Self-­Defense,” Philosophy & Public Affairs 23 (1994): 74–94, esp. n. XX, Stephen Kershnar, “Consent-­Based Permission to Kill People and Break Their Things,” Reason Papers 37 (2015): 34–53, Stephen Kershnar, “Fetuses Are Like Rapists: A Judith-­ Jarvis-­ Thomson-­ Inspired Argument on Abortion,” Reason Papers 37 (2015): 88–109. For a developed exploration of this argument, see Tim Campbell, personal communication. 10 While it is not clear that people have such fantasies, people frequently have violent sexual fantasies or would do so were they to watch violent pornography and

118  Abortion Doctors one can imagine other scenarios in which people consent to sex only if the other does not. On one study, over half the men shown depictions of rape were aroused by it. The experimenters were able to get many of the remaining men aroused by getting them to drink alcohol, think that they had drunk alcohol, change the narration from a man to a woman, or inform them that sexual arousal during the depiction of rape was normal. See Alfred Heilbrun and David Seif, “Erotic Value of Female Distress in Sexually Explicit Photographs,” The Journal of Sex Research 24 (1988): 2447–2457. This study is dated, but I know of no more recent study that explores the tendency of minor changes to arouse previously nonaroused viewers of distressed females in sexual situations. In several studies, a substantial percentage of women (51% in one study) fantasized about forced sex with a man. L. A. Pelletier and E. S. Herold, “The Relationship of Age, Sex Guilt and Sexual Experience With Female Sexual Fantasies,” The Journal of Sex Research 24 (1988): 250–256. Other studies showing the frequency of forced sexual fantasies include D. S. Strassberg and L. K. Licker, “Force in Women’s Sexual Fantasies,” Archives of Sexual Behavior 27:4 (1998): 403–414; D. Knafo and Y. Jaffe, “Sexual Fantasizing in Males and Females,” Journal of Research in Personality 18 (1984): 451–462. On some interpretations, these are rape fantasies. In some accounts, sexual force fantasies are not rape fantasies. S. Bond and D. Mosher, “Guided Imagery of Rape: Fantasy, Reality, and the Willing Victim Myth,” The Journal of Sex Research 22:2 (1986): 162–183. These fantasies correlate with what appear to be signs of sexual health. Specifically, these fantasies correlate with erotophilia and openness to sex. There also appears to be an indirect relation between a lower level of sexual guilt and forceful sexual fantasy. One researcher, Julie Shulman, hypothesizes that in women, lower sexual guilt brings about greater erotophilic pleasure, which then increases the use of forceful sexual fantasies. The first two claims can be seen in Julie Shulman, “Guilty or Not? A Path Model of Women’s Sexual Force Fantasies,” The Journal of Sex Research 43 (2006): 368–377. 11 See McMahan, Killing in War, 51–60, McMahan, “On the Moral Equality of Combatants,” 377–393, and McMahan, “The Basis of Moral Liability to Defensive Killing,” 386–405. 12 The argument works for Jeff McMahan’s moral responsibility theory and a culpability theory of forfeiture. The culpability theory asserts that a person forfeits if and only if he is blameworthy for attacking based on his belief or negligence with regard to the other person’s not being an unjust threat. See, also, the Doctrine of Double Effect. 13 For theories of desert that are compatible with consequentialism, see Fred Feldman, “Adjusting Utility for Justice: A Consequentialist Reply to the Objection From Justice,” Philosophy and Phenomenological Research 55 (1995): 567– 585, Thomas Hurka, Virtue, Vice, and Value (New York: Oxford University Press, 2001), ch.s 1–2; Thomas Hurka, “The Common Structure of Virtue and Desert,” Ethics 112 (2001): 6–31; Shelly Kagan, “Equality and Desert,” in Louis Pojman and Owen McLeod, eds., What Do We Deserve? (New York: Oxford University Press, 1999), 298–314; Neil Feit and Stephen Kershnar, “Explaining the Geometry of Desert,” Public Affairs Quarterly 18 (2004): 273–298. For a rights-­based account, see Amartya Send, “Rights and Agency,” Philosophy and Public Affairs 11 (1982): 3–39. 14 The idea for this case comes from Otsuka, ibid. 15 See Peter Van Inwagen, “The Eighth Philosophical Perspectives Lecture: Free Will Remains a Mystery,” Noûs 34 (2000): 1–19. 16 The benefit or interest theory asserts that rights function to protect interests. As such they are constituted by a claim. See, for example, David Lyons, Rights,

Problems with Forfeiture  119 Welfare and Mill’s Moral Theory (New York: Oxford University Press, 1994), Neil MacCormick, “Rights in Legislation,” in P. Hacker and J. Raz, eds., Law, Morality and Society: Essays in Honour of H. L. A. Hart (Oxford: Oxford University Press, 1977), 189–209; Joseph Raz, The Morality of Freedom (Oxford: Oxford University Press, 1986), and Matthew Kramer, “Rights Without Trimmings,” in Matthew Kramer, N.E. Simmonds, and Hillel Steiner., A Debate Over Rights (New York: Oxford University Press, 1998), 7–111. 17 For a classic statements of it, see R. B. Brandt, Ethical Theory (Englewood Cliffs, NJ: Prentice Hall, 1959), J. O. Urmson, “The Interpretation of the Moral Philosophy of J. S. Mill,” Philosophical Quarterly 10 (1953): 144–152, S. Toulmin, The Place of Reason in Ethics (Cambridge: Cambridge University Press). For more recent accounts, see Brad Hooker, Ideal Code, Real World: A Rule-­ Consequentialist Theory of Morality (Oxford: Oxford University Press, 2000), Tim Mulgan, The Demands of Consequentialism (Oxford: Oxford University Press, 2001). 18 See J. J. C. Smart, “Extreme and Restricted Utilitarianism,” The Philosophical Quarterly 6 (1956): 344–354. 19 The idea for this objection comes from Smart, “Extreme and Restricted Utilitarianism,” 344–354. 20 See Ben Eggleston, “Conflicts of Rules in Hooker’s Rule-­Consequentialism,” Canadian Journal of Philosophy 37 (1997): 329–350. 21 This idea and the two arguments that follow come from Brad Hooker, “Rule Consequentialism,” Stanford Encyclopedia of Philosophy, July 19, 2010, http:// plato.stanford.edu/entries/consequentialism-­rule/. 22 I am very grateful to Randy Dipert, Jim Delaney, John Keller, Bob Kelly, Jake Monahan, B. J. Strawser, and especially Neil Feit and David Hershenov for their extremely helpful comments and criticisms of this chapter. I am also grateful to the PANTC and Blameless Buffalo Reading Groups for discussing the ideas that led to this chapter.

Section III

Abortion

6

Forfeiture and Abortion

In the previous chapter, I argued that an attacker who threatens the lives of several innocents can, and sometimes does, forfeit his right to life (or, perhaps, his right not to have his body destroyed). As a result, on pro-­life assumptions, physicians who perform abortions forfeit this right. In this chapter, I argue that the same is true for fetuses. Specifically, I argue that, assuming fetuses have rights, unwanted fetuses are unjust bodily invaders and thus forfeit their right to life. As a result, it is permissible to kill them. This argument directly aims at the pro-­life worldview in that it shows that the view runs afoul the best non-­consequentialist theory of killing. Non-­consequentialism is the view that the right does not always maximize the good (that is, the right action makes the world a better place than would any other action available to the agent). This is a problem if a pro-­lifer is a non-­consequentialist. The next chapter argues that the pro-­life view is more plausible if consequentialism is true. The last two chapters set out the importance of forfeiture and, using pro-­life assumptions, applied it to abortion doctors. This chapter looks into whether fetuses forfeit their right to life. I find that they do. This is a problem for the pro-­life position because if they do forfeit their right, then killing them is permissible, regardless of what other positions and beliefs the pro-­lifer holds. If the pro-­lifer is to block this position, he must explain why they don’t forfeit a moral right or, if they forfeit a moral right, why it isn’t the right to life.

Part One: Introduction A common view in the line of argument on abortion arising from Judith Jarvis Thomson’s seminal piece is that abortion is permissible because the fetus has no right to be inside the woman.1 If the fetus has no right to be inside the woman, there is then a well-­developed debate on whether abortion is a doing versus an allowing (for example, a killing versus a letting die) and an intentional or merely a foreseeable bringing about of death. There is also an extended discussion about whether early abortions kill persons, that is, individuals who would be on a moral par with adult humans, right

124 Abortion bearers, and so on. In this chapter, I argue that even if abortion is an intentional killing of a person with full moral rights, it is just. I then argue that if it is just, then it is permissible. Part two of this chapter addresses whether abortion is just. It begins by providing Thomson’s argument on why the fetus has no right to be inside the woman and proceeds to explain why it is just. Part three argues that if it is just, then it is morally permissible. That section argues that there is no duty to save people and that if there is no duty to save people, then there is no duty to save fetuses. It then notes that even if there is a duty to save, the woman satisfies it.

Part Two: Abortion Is Just Concepts Following Thomson, it is helpful to have some distinctions before us. Consider her account of a right: Concept 1: Right. A right is a claim. Concept 2: Justice. One person acts justly toward a second if and only if the first respects the second’s right. Thomson illustrates this through the following case. Case 1: Greedy Brother A box of chocolates is given to an older brother. There he sits, stolidly eating his way through the box, his small brother watching enviously. Here we are likely to say, “You ought not be so mean. You ought to give your brother some of those chocolates.” If the older brother refuses to give his brother any, he is greedy, stingy, callous—­but not unjust.2 The right and justice notions then lead to her account of the right to life. Concept 3: Right to Life. The right to life is the right not to be unjustly killed. One person infringes on a second’s right to life if and only if the first infringes on the second person’s right and her doing so kills the second. Thomson illustrates this notion with the following case: Case 2: Henry Fonda If I am sick unto death, and the only thing that will save my life is the touch of Henry Fonda’s cool hand on my fevered brow, then all the same, I have no right to be given the touch of Henry Fonda’s cool hand

Forfeiture and Abortion  125 on my fevered brow. It would be frightfully nice for him to fly in from the West Coast to provide it. It would be less nice, though no doubt well meant, if my friends flew out to the West Coast and carried Henry Fonda back with them.3 These concepts then set up the argument for abortion being just. Most Abortions Are Killings Most abortions are killings.4 If one considers dilation and curettage (for example, suction curettage), dilation and evacuation (pulling a fetus apart with forceps), dilation and extraction (also known as partial-­birth abortion), and so on, they are all killings. They involve a doing, rather than an allowing, that intentionally causes the destruction of the fetus’s body that leads to its death.5 This is similar to a Normandy peasant who comes upon a Viking raping a woman. The peasant cuts the Viking in half with a broadsword to end the rape. There can be some debate about whether the peasant intends the Viking’s death. The peasant might have as his goal to protect the woman and have in mind his means of disabling the attack and the means of dismembering the attacker, without having the death of the Viking as his goal or the means to his goal, but this is still considered a paradigmatic killing. If this is a paradigmatic killing, then so is abortion. Some abortions are not killings. In 2011 in the U.S., 23% of abortions were early-­medication abortions. The abortion pill (mifepristone) causes the fetus to detach from the uterine wall. If a fetus is detached from the uterine wall, then the detachment prevents the woman from keeping the fetus alive. If one individual detaches himself from another and the detachment prevents the first from keeping the second alive, then the first lets the second die. Medication abortions involve one individual detaching himself from another, and the detachment prevents the first from keeping the second alive (that is, it is a letting die). Hence, a medication abortion involves one individual letting a second die. If something is a letting die, then it is not a killing. Hence, a medication abortion is not a killing. Table 6.1  Analogy Between Peasant Killing and Abortion Case

Event

Mental State

Effect

Relation event & effect

Type

Normandy peasant cuts Viking with sharp blade (sword) Abortion doctor cuts fetus with sharp blade (suction curettage)

Doing

Intent

Dismemberment

Proximate cause

Killing

Doing

Intent

Dismemberment

Proximate cause

Killing

126 Abortion The notion that a medication abortion involves one individual detaching himself from another and the detachment is a letting die rests on an analogy. To see this, consider this famous case. Case 3: Violinist You wake up in the morning and find yourself back to back in bed with an unconscious violinist. A famous unconscious violinist. He has been found to have a fatal kidney ailment, and the Society of Music Lovers has canvassed all the available medical records and found that you alone have the right blood type to help. They have therefore kidnapped you, and last night the violinist’s circulatory system was plugged into yours so that your kidneys can be used to extract poisons from his blood as well as your own. [If he is unplugged from you now, he will die; but] in nine months he will have recovered from his ailment, and can safely be unplugged from you.6 Were the hooked-­up person to disconnect himself from the violinist, this appears to be a paradigm case of letting die.7 The medication abortion is similar to the violinist case. A rape victim who takes the abortion pill is similar to the person who disconnects himself from the violinist in terms of the action (disconnection), intention, causal relation, and effect. Hence, if a disconnection in the violinist case is a letting die, then so is the case of the rape victim who takes an abortion pill. If a rape victim who takes an abortion pill lets the fetus die, then so does the pregnant woman who is not a rape victim. An objector might claim that a chemical abortion is a direct killing because the woman taking the drug intends to end the pregnancy and the only way to end the pregnancy is to kill the fetus. Making the uterine wall not receptive to the fetus, the objector reasons, is one way to kill the fetus. Another would be a dilation and curettage (D & C). By analogy, the objector argues, one person kills a second if the first threw the second into a wood chipper. The same is true if she put black ice on the road so that when a driver is driving nearby the road would not be receptive to his tires and she knows that her doing so will result in his skidding off the road and dying. Both are killings. They merely use different means to the same end. The first thing to note about this objection is that my approach can grant it given that it explains why it is permissible to intentionally kill a trespassing fetus. The second thing to note is that not all killings are wrong and not allowings are permissible. For the former, consider self-­defense killings. For the latter, consider when a patient contracts to have a surgeon perform lifesaving surgery and, having made the contract, the patient does not make an alternative arrangement. The surgeon then gets drunk and just watches the anesthetized patient die on the operating table.

Forfeiture and Abortion  127 The third thing is that sometimes chemical abortion is an allowing rather than a doing. A killing is a doing rather than an allowing. A woman has a right to eliminate part of her uterine lining. For example, she may do so when she is not pregnant. If she eliminates part of her uterine lining to prevent the zygote from attaching to her, this is an allowing because it is merely refusing to save the zygote rather than killing it. By analogy, a lifeguard who doesn’t throw out his own buoy to an exhausted swimmer, but merely refuses to save him, does not kill the swimmer because he does not cause him to die. He does not cause him to die because were he not present the swimmer would still die and would do so in the same way. If the lifeguard were to pull his own buoys out of the water before the swimmer can reach them, arguably, he again does not cause the swimmer to die because he does not push, pull, or otherwise move the swimmer into the water, keep him to the water, or stop him from reaching the shore. Intending someone’s death is not sufficient for a killing because it is not sufficient for a doing. Consider, for example, when the lifeguard refuses to throw out a buoy because he intends that the swimmer die. In the chemical abortion case when the woman disintegrates part of her uterine lining to prevent the zygote from attaching to it, this is analogous to the lifeguard pulling in his own buoys and, thus, an allowing of its death. When the fetus is attached to part of the uterine lining and the woman disintegrates it, then it becomes less clear whether it is an allowing. It might be seen as an allowing because it is similar to a restaurateur who refuses to feed a starving man rather than taking food away from him. It might instead be seen as a doing because it is similar to cutting a lifeline that a swimmer is pulling himself in on to save his life. The difference depends on whether the disintegration brings about the fetus’s death by refusing to provide it with food or by cutting its lifeline. I think the latter is a better account of what it does. In any case, not much rests on this issue for the reason set out in the following. A critic might claim that unplugging yourself from the violinist only permits the violinist to die from what is already killing him, his ailment. In contrast, the critic notes, suctioning out a fetus is not simply withdrawing care that allows a disease to kill him. It is the difference between unplugging the violinist and pulling a knife out and stabbing him to death. This criticism is correct but does not make suction-­based abortion wrong because, as argued in the following, it is justified by self-­defense. It is also worth noting that this criticism makes chemical abortion less objectionable when it is a refusal to save rather than a killing. Table 6.2 illustrates the parallel features. If in a given scenario killing someone is permissible, then so is letting that person die. Thus, if as I argue in the following, it is permissible for a woman to kill a fetus (or zygote or embryo), then it is permissible for her to let it die.

128 Abortion Table 6.2  Different Types of Letting Die Case

Subject

Object

Act

Effect

Relation

Type

Violinist

Kidnap victim Rape victim/ Pill taker Pill taker

Violinist

Disconnection

Death

Cause

Letting die

Fetus

Disconnection

Death

Cause

Letting die

Fetus

Disconnection

Death

Cause

Letting die

Pregnancy (Rape) Pregnancy (Voluntary sex)

Argument Here is Thomson’s argument for abortion: (P1) If abortion is unjust, then it infringes on the fetus’s right to life. (P2) Abortion does not infringe on the fetus’s right to life. (C1) Hence, abortion is just. [(P1), (P2)] Premise (P1) rests on the nature of the right to life. Premise (P2) rests on the following three assumptions. Assumption 1: No Right. The fetus has no right to be inside the woman. Assumption 2: Removal. If the fetus has no right to be inside the woman, then it may be removed with proportionate force. Assumption 3: Proportionate Force. In abortion, the woman uses proportionate force. Thomson’s argument is that sex is not consent for a fetus to be inside a woman. Even if it were consent, she can withdraw it.8 Thomson argues that mere intercourse is not consent because it clearly is not present in the case of rape. Nor is it present when a woman has sex with contraception. To see this, consider the following: Case 4: Burglar 1 The room is stuffy, and Alice opens a window to air it. She had had bars installed outside her windows, precisely to prevent burglars from getting in, and a burglar got in only because of a defect in the bars. It would be absurd to say, “Ah, now, he can stay, she’s given him a right to the use of her house—­for she is partially responsible for his presence there, having voluntarily done what enabled him to get in, in full knowledge that there are such things as burglars and burglars burgle.”9

Forfeiture and Abortion  129 The analogy here is to sex with contraception. Just as the owner has not consented to the burglar to enter and stay in the house, the woman has not consented to the fetus to enter and stay in her uterus. The same is true in the case of sex without contraception. To see this, consider the following. Case 5: Burglar 2 Same as Burglar 1, but Alice did not have bars installed outside her windows. Even if consent had been given, it can be withdrawn. To see this, consider the following case (from me, not Thomson). Case 6: Party Pooper Betty has a party and invites everyone to her house. She notices her boyfriend making out with another woman. She tells everyone to leave. Just as Betty may withdraw consent to partygoers who are in her house even if she earlier granted it, a woman may withdraw consent from a fetus in her uterus even if she earlier granted it. In summary, (P1) rests on the nature of the right to life. The preceding arguments support the first assumption underlying (P2) (the fetus has no right to be inside the woman). The second assumption (if the fetus has no right to be inside the woman, then it may be removed with proportionate force) rests on a standard assumption about defensive force being just only if it is proportionate to the threat. An “unjust threat” is a thing that has a significant likelihood of causing unjust harm.10 I use “threat” as shorthand for “unjust threat.” Here the threat is a trespass. From here I switch the argument from Thomson’s to mine. What needs to be shown is that in abortion, the woman uses proportionate force. This argument begins with the notion that as a matter of justice, a person may use lethal force to prevent rape. Case 7: Prison Rape In prison, a large man (Big Amp) goes to rape a small one (Sheldon). The only way Sheldon can defend himself is to stab Big Amp with a shank. Given the absence of guards and the nature of the shank, it will likely kill Big Amp. Intuitively, as a matter of justice, Sheldon may stab Big Amp if this the only way the former can prevent the latter from raping him. On my account, this is due to Big Amp’s forfeiting his right.11 However, this is compatible with Sheldon’s having this right because his right to his body overrides Big Amp’s right to life.12 It is also compatible with Sheldon’s having this right

130 Abortion because Big Amp’s right has a complex content. For example, the right is the following: it-­is-­wrong-­to-­penetrate-­Big-­Amp’s-­body-­unless-­he-­consents-­ or-­attacks-­another-­or-­.  .  .  .13 If the rights that protect autonomy are alienable, they can be waived. Can they also be forfeited? It intuitively seems so. It intuitively seems that a person can forfeit some of his rights.14 Consider the following. Case 8: Bar Rapist Outside a bar, a fully responsible attacker, Don, tries to rape and kill a woman, Erin, and she defends herself by hitting him with a tire iron, thereby badly bruising his leg and discouraging him from continuing the attack. Consider what happens to the attacker’s right to his body. If the right is neither overridden nor alienated, then Erin’s hitting Don was wrong, although perhaps excused.15 This intuitively seems incorrect. If the defensive action is permissible, then the right is either overridden or not infringed. If it is merely overridden by Erin’s right to control her body, then there is a residue duty that Erin owes Don. She thus owes him an apology, if not compensation. This is implausible. If Don’s right has a complex content: do-­not-­hit-­unless-­ necessary-­for-­defense-­or-­punishment-­or-­. . . , then the right presupposes the conditions under which defensive violence, punishment, and so on can be done.16 If so, then the right does not explain when and why such actions may be taken; it merely reflects the conclusion with regard to these things. However, rights theorists often think that rights are part of the moral world precisely because they do such explanatory work. This explains why theorists reason from rights to conclusions about abortion, free speech, and the right to privacy, rather than vice versa.17 The best explanation of Don’s right is that it is lost. Because Don does not intend this to happen, it is forfeited rather than waived. Rights-­forfeiture is consistent with the alienability of rights. Just as rights can be waived as part of a self-­shaping life, rights can also be forfeited as a way of restricting some individuals from interfering with others having self-­shaping lives. The underlying picture of both is that rights protect a self-­ shaping life, although a waiver is more directly connected to the exercise of the shaping process than is forfeiture. On a different account, defensive violence is permissible because it involves the fair distribution of the risk of harm from an attack.18 The problem with this account is that it does not address how fairness affects the rights of the two parties. In addition, if fairness is a value that depends on other values (for example, desert, rights, or equality), then fairness-­based arguments likely need to be recast in terms of the more fundamental values before we can assess them.

Forfeiture and Abortion  131 This same thing holds true if one person grants the second the right to have sex with her and then withdraws it. Consider the following. Case 9: Didn’t Stop A couple decides to have intercourse. The woman becomes scared, and sex becomes extremely painful for her. She tells him to stop. The man refuses, increases his forcefulness, and continues onward for an hour. After an hour the woman stabs him to make him stop. Again, as a matter of justice, the woman may stab the man. If the preceding argument is correct, then it is just to use lethal force to prevent rape. Given this, and if carrying an unconsented fetus is as great an unjust trespass as unconsented-­to sex, then it is just to use lethal force to prevent an unconsented-­to pregnancy. To see why carrying an unconsented­to fetus is as great an unjust trespass as unconsented-­to sex, consider the following: Case 10: Nazi Choice In Auschwitz, the Nazis notice an attractive twenty-­year-­old Jewish woman. They tell her that she can have sex with the Nazi officers (rape), carry the fetus of an officer and his wife (unwanted pregnancy), or be killed. She chooses the sex.19 Other women in her position would have a hard time making this decision, and some would prefer the sex. One infringement is as great as a second just in case the severity of infringement of the first is as great as the second. The severity of infringement is a (weighted) product of the importance of the right and the degree to which it is infringed. This product depends on what a right protects. On different theories, it protects the right holder’s interest, legitimate interest, or autonomy. On a rule-­utilitarian theory, rights are rules about interactions that would maximize utility were a significant number of a population to follow them. A problem with this latter theory is that it is often thought that rights are side-­constraints or trumps on utility maximization, and as such are not justified by utility.20 One guide to the severity of a rights-­infringement is people’s preferences. That is, preferences with regard to a choice of right-­infringements are evidence, albeit defeasible, of the wrongness of the infringement. This is because people are somewhat good at ranking their interests, autonomy, and so on and estimating the degree to which others’ acts set back these things. A related guide is the market for acts that would otherwise be an unconsented-­to rights-­infringement.21 Here, while there is a market for intercourse and carrying fetuses, this is likely not an accurate guide to the market value

132 Abortion for unconsented-­to versions of these acts because the acts are so different as to be disanalogous. Even if we could estimate the disvalue of such things by looking at the market for various insurance-­compensation plans and defensive measures, the former does not exist, and the latter is not tied closely enough to rape. On one account, the stringency of a right varies, at least in part, with how bad the infringement of that right would be for the rights holder (that is, the degree of harm to the rights holder).22 On a second account, the stringency varies, at least in part, with the degree to which the rights-­holder values that right. On a third account, it varies, at least in part, with the possibility of compensation.23 This third account overlaps significantly with the other two accounts because compensation should track the extent to which someone is harmed or disvalues what is done to her. One way to understand the first account is that because rights protect against harm, rights-­stringency covaries with it. The second rests on the notion that a claim is justified by what the rights-­holder values, and so valuation covaries with right-­stringency. On the first two accounts, were the woman in question to be harmed by or disvalue the unconsented-­to Nazi pregnancy more than the unconsented­to Nazi sex, then unconsented-­to pregnancy would be at least as severe a rights-­infringement as unconsented-­to sex. If rights-­stringency is a function of how, in general, women in that situation would be harmed by or would disvalue the infringement, and if women in the Nazi case would frequently prefer the sex to the pregnancy, the pregnancy would be as severe a rights-­ infringement as the sex. These accounts (harm, valuation, and compensation) take a stronger view than the theory that asserts that rights-­holder preference or valuation is evidence of rights-­stringency rather than a determinant of it.24 A problem with the former accounts is that this makes rights-­stringency vary between people. In addition, rights-­stringency might depend on irrational preferences or uninformed judgments. This is true regardless of whether the judgments are ex ante or ex post. Another problem is that if rights are justified by one type of interest (for example, autonomy-­related interests) then the focus on overall harm or valuation is too broad in that effects on autonomy can diverge from overall interest protection. Rights might be thought to focus on autonomy-­ related interests because most, if not all, rights protect choices; because most rights are claims to noninterference and correlate with morally permissible options; and because the rights holder usually, if not always, has a Hohfeldian power over the claim that is the right. A Hohfeldian power is the standing by which to eliminate, modify, or leave in place another Hohfeldian element (for example, a claim or power).25 All three features (choice protection, claims to noninterference correlating with options, and claims being accompanied by powers) are autonomy-­related. Yet a further problem is that if harm does the justificatory and explanatory work and if a right can be overridden when a benefit exceeds the harm

Forfeiture and Abortion  133 of its infringement, then it is unclear what work rights do. The moral work would be done by harm-­and benefit-­elements.26 One response to this last objection is that the stringency of the right is a function of harm, but the claim that is a right is not against harm. That is, harm might determine the stringency of a right without determining its content—­what it requires of agents other than the rights holder.27 An additional problem that hampers the harm model is that it intuitively seems wrong to infringe on someone’s rights even if doing so does not harm the rights holder.28 A related notion is that something like a promise can increase the stringency of a right.29 For example, Jones’s promise not to steal Smith’s stuff intuitively seems to strengthen Jones’s duty not to do so. However, the promise might not increase the harm that would come about from Jones’s stealing the stuff. If promises create or strengthen claims (that is, rights) in cases like this, then the harm model is problematic. The right to one’s body is the same in the case of Prison Rape, Didn’t Stop, Nazi Choice, and unwanted-­ to pregnancy. Preventing rape warrants lethal force. The woman in Nazi Choice prefers the unconsented-­to sex to the unconsented-­to pregnancy. So do plenty of women with whom I discussed this case. I will assume that this preference is reasonable and moderately widespread. This is some evidence that the pregnancy-­related rights-­infringement is at least of the same magnitude as sex-­related rights-­ infringement. This is true whether such preferences are relevant to harm, valuation, compensation, autonomy, or whatever else grounds rights-­ stringency. Hence, there is some reason to believe that preventing unconsented-­to pregnancy warrants lethal force. The notion that autonomy justifies rights can be seen in the will theory of rights. On this theory, rights protect choices and take the form of a Hohfeldian power over other Hohfeldian elements.30 Consider the degree to which unconsented-­to sex sets back autonomy as opposed to unconsented­to pregnancy. A life is autonomous to the degree it is self-­shaped. While the comparison varies between individuals, the unconsented-­to sex often, if not always, produces great psychological harm that hinders a woman’s ability to shape her life according to her values, preferences, and wants. In addition, it likely hinders her exercise of this ability. On the other hand, unconsented-­to pregnancy often, if not always, produces some psychological harm and, in many cases, mother-­related responsibilities that also hinder a woman’s ability to shape her own life. It also hinders her exercise of this ability. My guess is that the latter sets back the ability and exercise more because the duties of motherhood last for years, are incredibly time-­and energy-­consuming, and are given up only with great effort and suffering. If this is correct, then the rights-­infringement characterizing unconsented-­to pregnancy is on average as severe as the rights-­infringement characterizing unconsented-­to sex. At the very least, if rights are autonomy-­based, then we have little reason to believe that unconsented-­to pregnancy is on average a less severe rights-­infringement than unconsented-­to sex. As a result,

134 Abortion we cannot rule out that, as a matter of justice, unconsented-­to pregnancy warrants killing.31 One concern is that I am assessing the problems with pregnancy and motherhood, not just pregnancy. The concerned individual might agree that motherhood is a significant burden and one that often follows from pregnancy, but not necessarily—­and it wouldn’t explain our intuitions in the Nazi Choice example. The critic is correct, but the burdens of pregnancy and birth are enough to explain our intuitions in that example. Another concern is that if the demands of motherhood are what infringe on autonomy, then infanticide would be equally justified. This is incorrect because motherhood can be prevented by means short of killing. This is not so for pregnancy, at least given current technology. A third concern is that the benefit to the fetus has enough value to override the threshold of a body-­right. The idea here is that an individual may, as a matter of moral permissibility, override another’s right if certain conditions are met. The conditions might include ones such as a net benefit and a beneficiary from the rights-­infringement who gains at least as much as the rights holder loses.32 The problem with this is that we don’t think that body-­ trespass is permissible when necessary to save another’s life. For example, it intuitively seems wrong to remove a woman’s spleen or kidney, or to drain some of her spinal fluid, against her will even when doing so can be done with minor surgery and will save another’s life. One might be less intuitively opposed to this situation if the woman in question has only survived because someone else has undergone the same operation in order to save her life. Still, the fact that another has sacrificed for the woman is not enough to change our overall intuition about the case, namely, that this should not be done against her will. The intuition strengthens if the one who demands that the surgery be forcibly imposed has not herself sacrificed for another. An objector might argue as follows: Imagine I came across a man having sex with a comatose woman. I would be justified in trying to remove him, since it seems like a clear case of rape. I don’t think I have to wait until she wakes up to see if she had consented. Suppose I came across a woman three months’ pregnant, who happens to be in a coma. Should I ask a doctor to perform an abortion on her immediately, since pregnancy is prima facie equivalent to rape? Or should I wait until she wakes up? If the latter, then pregnancy is not prima facie equivalent to rape.33 The first problem with this objection is that it is not clear to me that an abortion should not be performed. The fetus entered the woman’s body without her knowledge or consent and is using her body. It is not clear why this should be permitted any more than an orderly should be allowed to use

Forfeiture and Abortion  135 the comatose woman’s mouth or anus for his sexual pleasure. Perhaps the concern is for harm, but then it is unclear whether the formerly comatose woman will be more upset when discovered that she has an unchosen and unwanted fetus who is nearing birth in her or that she was raped. Given the dangerous and terrifying things women have done in the past to end an unwanted pregnancy, this is not clear. The second problem is that if we do not ask a doctor to perform an abortion on the comatose woman immediately, this is likely because the abortion would be another bodily invasion, and this requires the woman’s consent. Waiting allows her to consent or not, rather than having one unconsented to body trespass (abortion) follow another two (rape and then fetal invasion). That immediate steps would be justified can be seen in that if a husband with a gun were to come upon two orderlies nearly finished with artificially inseminating his comatose wife, he intuitively seems to be morally justified in using a great deal of force to prevent them from completing the insemination. My intuition is that he may use as much force as he would need to prevent them from raping her. If this is correct, then the prima facie wrongness of the trespass involving an unwanted pregnancy is as great as that involving a rape. If preventing rape warrants lethal force and if it is the only way to prevent it from occurring, then so does preventing artificial insemination. Table 6.3 summarizes my findings. In summary, then, abortion is a killing. If it is a killing, then it is just only if it is proportionate to a threat. Thomson’s argument shows that the fetus has no right to be inside the woman. Standard principles of justice assert that if the fetus has no right to be inside the woman, then it may be removed with proportionate force. I have argued for the claim that in abortion, the woman uses proportionate force. My argument is that the prevention of rape warrants lethal force. If the prevention of rape warrants lethal force and an unconsented-­to pregnancy is a rights-­infringement as severe as rape, then the prevention of unconsented-­to pregnancy warrants lethal force. Abortion prevents an unconsented-­to pregnancy. Hence, abortion is just.

Table 6.3  Severity of Right Infringement Rights-Infringement

Importance of Right Infringed

Degree of Infringement

Warrants

Unconsented-to Sex (Rape)

Body ownership or body control (Value: A) Body ownership or body control (Value: A)

Severe (Value: B)

Lethal Force (A × B)

Severe (Value: Greater than B)

Lethal Force ≥(A × B)

Unconsented-to Pregnancy (Ordinary unwanted pregnancy)

136 Abortion Objections One type of objection addresses whether the fetus has a right to be inside the woman. One version of this objection is that the fetus has a right to be inside the woman because it has no other place to go. This argument goes to the first part of the argument—­the part that comes from Thomson—­and I will not spend a lot of time defending this issue because I wish to focus on the proportionate-­killing issue. The short version of the response is that the only way for one person to get a right to be inside a second person’s body is through consent or forfeiture. The woman’s having voluntary intercourse is not consent. Neither does it ground forfeiture because, in ordinary cases, voluntary sex does not infringe on someone’s right. As such, it does not give rise to a claim for an apology, compensation, just defense, or punishment as it would were it forfeiture. A second type of objection is that abortion uses disproportionate force. One version of this objection is that the fetus is merely a trespasser and preventing trespass does not warrant lethal force. For example, in Party Pooper, Betty may have a claim that her guests leave, but she may not force them to leave by slicing them up with a giant suction-­curettage device or ripping them apart with giant mechanized forceps. Similarly, an owner of a private Gulfstream jet may not eject a particularly rude passenger, let alone subject him to one of these devices.34 The problem with this is that the trespasser invades the human body and preventing body-­trespass warrants lethal force. The fact that some far less severe rights-­infringements does not do so is beside the point. If the rude passenger were raping a flight attendant, the owner could eject him if this were the only way to make him stop. A second version of this type of objection is that the fetus is innocent while the rapist is not. This is because rapists are, or at least almost always are, morally responsible agents. They are also vicious, warrant punishment, and should feel shame and guilt for what they have done. However, just defense does not require that the threat be morally responsible for his act. Consider the following. Case 11: Psychotic Aggressor A woman’s companion in an elevator goes berserk and attacks her with a knife. There is no escape: the only way for her to avoid serious bodily harm or even death is to kill him with her gun. The assailant acts purposely in the sense that he means to further his aggressive end. He does act in a frenzy or in a fit, yet it is clear that his conduct is non-­ responsible. If he were brought to trial for his attack, he would have a valid defense of insanity.35 Intuitively, it seems that the woman may, as a matter of justice, use lethal force even though the attacker is innocent (that is, not morally blameworthy)

Forfeiture and Abortion  137 with regard to his action. This is true even when the threat does not even act but is merely an object used in an attack. Consider the following. Case 12: Innocent Threat You are at the bottom of a deep well. An aggressor picks up a third party and throws him down at you. The third party is innocent and a threat; had he chosen to launch himself at you in that trajectory, he would be an aggressor. Even though the falling person would survive his fall onto you, you use your ray gun to disintegrate the falling body before it crushes and kills you.36 Just as the woman may, as a matter of justice, kill the psychotic aggressor, she may also kill a psychotic rapist. Case 13: Psychotic Sex Aggressor A woman’s companion in an elevator goes berserk and tries to have intercourse with her. He is psychotic and believes that she is his wife and wants sex then and there. There is no escape: the only way for her to avoid being raped is to kill him with her gun. The assailant acts purposely in the sense that he means to further his sexual end. He does act in a frenzy or in a fit, yet it is clear that his conduct is non-­responsible. If he were brought to trial for his attack, he would have a valid defense of insanity. If this is correct and if, as argued earlier, the fetus’s rights-­infringement is as great as that of a rapist, then the woman may kill a psychotic rapist. For the same reason, she may kill an innocent fetus. A third type of objection, from Nancy Ann Davis, is that the fetus is an innocent threat, not an innocent attacker, because it is not an agent. Because the fetus is an innocent threat, it does not forfeit its rights.37 She uses the following case to illustrate her claim: Case 14: Mountain Climbing Alice and Ben are mountain climbing when a rockslide occurs that threatens to sweep Ben off the ledge that he has been standing on. If Ben falls straight down—­as he is virtually certain to do—­he will fall onto Alice, for she is standing on the narrow ledge beneath his, and will surely kill her. If Ben manages to land on Alice’s ledge, however, he is unlikely to be killed: indeed, he is unlikely even to be seriously hurt. Alice can determine how Ben falls, for she can manipulate his rope if she chooses to do so. If she gives his rope a tug, she will deflect Ben’s fall and thus preserve her life. But she will kill Ben in the process, for if he does not land on Alice’s ledge, then he will tumble down the side of

138 Abortion the mountain to his death. Alice cannot survive unless she deflects Ben’s fall; Ben cannot survive if she does.38 Davis argues that an innocent threat (Ben) generates an agent-­relative permission to the person endangered by him (Alice) to defend herself. That is, Alice is morally permitted to tug the rope. Davis argues that the innocent threat (Ben) has a similar agent-­relative permission to keep the endangered person (Alice) from killing him because they are in morally symmetrical situations. In addition, Davis claims that this agent-­relative permission does not entitle third parties to intervene on behalf of the endangered person. Here Davis is wrong because her intuitions are mistaken. First, it is intuitively permissible to use the ray gun in Innocent Threat and for Alice to tug the rope. It is intuitively wrong for Ben to prevent Alice from tugging the rope by shooting her with a ray gun, although it might be excusable. This is because Ben and the falling person in Innocent Threat are part of the initial interference with the autonomy of the other people and this gives the others priority in autonomy-­based contexts.39 By analogy, consider a driver who suffers from an unpredictable aneurism so that his car careens toward people in a store. The driver is not permitted to shoot someone in the store who tries to save herself by ray-­gunning the car. Second, Davis’s account is inconsistent in that one person cannot have an agent-­relative permission (specifically, a Holfeldian liberty) to harm a second unless the second’s right (specifically, claim to noninterference) has been lost (waived or forfeited), overridden, or does not oppose the imposition of harm. Ben did not intentionally give up his right, so waiver is not at issue. Nor is the right overridden because with regard to two opposing rights; the basis of one right cannot override a second right if the basis of the second right overrides the first right. This can be seen in two classic models of rights. In one account, autonomy justifies a consistent set of natural negative rights, and all other rights are derived from them.40 Rights so derived cannot contradict one another. In another account, rights are justified by utilitarianism or even rule-­utilitarianism. Neither yields contradictory rights because utility in the particular situation or the tie-­breaking rule will prioritize one of the rights. For the reason mentioned earlier, the complex-­content theory of how rights operate in self-­defense is implausible. Third, if the woman has an agent-­relative permission to kill the fetus (analogous to Alice’s right to tug the rope) and if such permissions are accompanied by a claim to noninterference, then the woman has a right to abortion on defensive grounds. This is true even if the fetus has a contradictory right to defend itself analogous to Davis’s assertion that Ben has a right to defend himself. This is enough to show that abortion is just. The contradictory right of the fetus makes the overall moral scenario strange, but this is beside the point. A third objector, such as Francis Beckwith, might make the following argument.41

Forfeiture and Abortion  139 Although Thomson concedes that the intruder may be an innocent blunderer, she does not consider the case of the innocent non-­blunderer who is lured onto the property by the landowner’s actions, even though the landowner did not specifically intend for the trespass. For example, suppose the invaders were not adult burglars but underage children drawn to the home’s backyard swing set and swimming pool and subsequently harmed as a consequence of their mischief. In the common law, the landowner could be liable for damages if he had not exercised reasonable care. Called the attractive nuisance tort, it affirms that a landowner “is subject to liability for physical harm to children trespassing thereon caused by an artificial condition up on the land if” the landowner, among other things, “knows or has reason to know that children are likely to trespass,” and if the children are too young to detect or understand the risk, and if it is a condition he “knows or has reason to know or should realize will involve a reasonable risk of death or serious bodily harm to such children.” So, the law acknowledges—­what our moral intuitions seem to confirm—­that intruders come in a variety of types, including those whose trespassing may not be entirely their responsibility because of their immaturity and/or the nature of the landowner’s action or inaction. In pregnancy, however, the fetus is not an intruding minor who should have known better, having nevertheless been lured into a position of vulnerability by an attractive nuisance. Rather, the fetus is a non-­willing inhabitant of the only environment that is designed to shelter, feed, and sustain him, with his presence there being the consequence of agents having engaged in an act intrinsically ordered to bring such beings into existence. Thus, if the landowner is responsible for the nuisance attracted minor on his property, a fortiori the parents of a fetus are at least just as responsible. The problem with this objection is that it is intuitively hard to see how the doctrine of attractive nuisance can be morally justified on non-­consequentialist grounds. If the child has no moral right to be on the landowner’s property (she is trespassing), then it is hard to see why she would have the moral right to have the landowner order his property one way rather than another. We might want to prevent attractive conditions that are dangerous because the benefit of doing so far outweighs the cost. This is similar to the way that the necessity doctrine in the criminal law protects desperate people from punishment when they break into someone’s property to prevent death or severe injury. Again, this is a consequentialist justification designed to prevent unnecessary death or severe harm. Nor is this consequentialist justification unique in tort law. Parts of tort law are governed by a negligence rather than strict liability standard. Such a standard is justified on the basis of efficiency rather than justice. In this context, efficiency is closely related to, if not identical to, a consequentialist justification.

140 Abortion Abortion involves a much more significant trespass than do the attractive-­ nuisance and necessity cases because the right to control one’s body is far more significant than the right to control real property. This can be seen in that the law does not allow a vaginal or anal trespass (for example, a rape) even if it were necessary, in a science-­fiction-­like case, to save a man’s life. For example, imagine that the only thing that will keep Judy from dying from a fever is if she sticks her fist into Henry Fonda’s behind. Neither the law nor morality allows her to do so without his permission. Similarly, a child injured when attempting to force his erect penis into a woman’s vagina would not have a legal defense of attractive nuisance, nor would morality tell us he has a right to do so, even if the attraction of his doing so paralleled that which occurs in a landowner case. This is because the attractive nuisance and necessity doctrines are justified, if at all, by consequentialist overrides of moral rights rather than by justice.

Part Three: Abortion Is Permissible A similar comparison to sex shows that abortion is not merely just but also permissible. I think that once it is shown that abortion is just, then it follows that, short of preventing a catastrophe (consequentialist override), abortion is permissible. My assumptions here are that (a) except when a consequentialist override is present, an act is wrongful only if it wrongs someone and (b) an act wrongs someone only if it infringes on someone’s right (that is, claim). Because these assumptions are controversial, and defending them beyond the scope of this argument, let us proceed without them. That is, let us proceed on the assumption that not all wrong acts infringe on someone’s right. Here is the argument for abortion being morally permissible. As a reminder, premise (P1) states that if abortion is unjust, then it infringes on the fetus’s right to life. Premise (P2) states that abortion does not infringe on the fetus’s right to life. (C1) Hence, abortion is just. [(P1), (P2)] (P3) If abortion is just, then if it is wrong, then it infringes the duty to save. (C2) Hence, if abortion is wrong, then it infringes the duty to save. [(C1), (P3)] (P4) Abortion does not infringe the duty to save. (C3) Hence, abortion is not wrong (that is, it is morally permissible). [(C2), (P3)] Premise (P3) rests on the following notion: If abortion is just and still wrong, then it infringes on a duty not tied to a right. The most plausible duty is the duty to save.42

Forfeiture and Abortion  141 Premise (P4) rests on two arguments. The first is that there is no duty to save. The idea here is that there is no duty to save strangers. Strangers are individuals to whom one does not stand in a special relation. Special relations include family, friends, and those whom one has harmed or put in danger. The next idea is that if there is no duty to save strangers, then there is no duty to save people. The notion that there is no duty to save strangers rests on the arguments below. One argument focuses on distance. There is no duty to save distant strangers. Consider, for example, when one spends money on a vacation rather than on feeding Somali children. This case captures this notion. Case 15: Caribbean Holiday Al, a hardworking plumber, enjoys taking his family on vacation to the Caribbean. He does so once a year. Were he to give the money to Oxfam International, he could save the lives of a few starving children in places like Sudan and Somalia. Distance is irrelevant. If there is no duty to save distant strangers, and the preceding case intuitively suggests there is not, and distance is irrelevant, then there is no duty to save strangers. A second argument is that if there is a duty to save strangers, then there is a disjunctive duty. To see this, consider the following. Case 16: Lifeguard Charley is sitting on the beach drinking tequila and tanning. He sees a cruise ship go down and sees hundreds of people drowning. Because he is a weak swimmer who will have to go out in a life preserver, he can save at most one person. There are no disjunctive duties. It is difficult to see how a duty can exist to save (or otherwise benefit) one of a collection of strangers, when it is owed to neither any member of the collection nor to the collection. A third argument is that if there is a duty to save strangers, then the desperate strangers have a claim against the rescuer. If desperate people have a claim against the rescuer, then they have a right to the rescuer’s body or labor. If desperate people have a right to the rescuer’s body or labor, then they own the rescuer’s body or labor. If there is a duty to save people, then the desperate people own the rescuer’s body or labor; however, they do not. A fourth argument is that if there is a duty to rescue, then people would have a duty to give to the point of marginal utility or some other principled threshold. Marginal utility is the point at which the benefit (in utils) to the recipient is less than the cost to the benefactor. There is no duty to give to the point of marginal utility or some other principled threshold. Here is an example illustrating this:

142 Abortion Case 17: Cabin Bob, a spendthrift teacher, buys a cabin high up in the northern Rockies for his family (adult children and grandchildren) to enjoy during summer hiking expeditions. He puts in expensive electronics, high-­end furniture, and a great hot tub. The cabin has a stunning view of the valleys and lakes below. He knows that if he puts in drill-­proof locks on the door and windows in metal lattices, no one will be able to break in. If he does this, this will prevent any hikers caught in early and unpredictable winter storms (an infrequent, but real, occurrence) from breaking into the cabin to save themselves. There is also some concern about theft from other hikers. From an impartial perspective, the costs of the security devices likely outweigh the benefits. There is no principled threshold, short of marginal utility, by which we can say that Bob is or is not permitted to install the devices. Were the marginal-­utility standard to be applied, then Bob would be wrong to pay for this luxurious cabin, let alone the devices. If the preceding arguments work, then arguments that support a duty to save strangers fail. The earlier arguments are also incompatible with Immanuel Kant’s notion that there are imperfect positive duties. Imperfect positive duties are duties to do something to help people (for example, to do some type of charitable work, although not any particular type) that are not owed to any particular person or group and do not require a particular act. The earlier arguments’ relation to Good Samaritan laws is complex because it depends on the relation between moral and legal duties and this issue lies outside the scope of this book. An objector might respond that the existence of a duty to save strangers explains the belief we have that there is a duty to contribute to disaster relief. This objection is inconsistent, though, with the earlier arguments. For example, the objector probably does not think that those suffering during a disaster have a claim against those with money. This is a problem if a claim just is a duty from the perspective of the person to whom it is owed. The objection also seems unable to explain why one does not fail to satisfy a duty if she donates money to the homeless rather than to disaster relief. Yet this undermines the intuition (we have a duty to support disaster relief) on which the objector rests her case. Alternatively, the objector might respond that one can and should care about strangers, and hence, we stand in a special relation to them. The response is the same as earlier. Also, intuitively, there is a priority to help family and friends over strangers, despite the strangers’ greater desperation. This is hard to explain were strangers to stand in a special relation to us. The same argument intuitively seems to apply to the fetus in that the making features of abortion are present whether the purported wrong-­ fetus arose from the pregnant woman’s egg or another’s egg. This might be

Forfeiture and Abortion  143 because the fetus is not a family member in the relevant sense. Let us proceed, however, on the assumption that there is a duty to save because these arguments are controversial and defending them will take us far afield. Even if there is a duty to save, it does not make abortion wrong. Intuitively, in the following case, the woman has no duty to save the sick man. Case 18: Anal Intercourse The only way for a sick man suffering from a very rare disease to survive is to have anal intercourse with a woman who has a rare combination of immunities. She has not tried anal intercourse but knows she would not enjoy it. That said, she would prefer it to nine months of an unwanted pregnancy.43 If, in this case, the woman has no duty to save the sick man, then the pregnant woman does not infringe the duty to save the fetus. This rests on the notion that the duty to save only applies when there is a reasonable cost. The anal-­intercourse cost is sufficiently high to cancel (undermine, override, or make inapplicable) the duty to save. The unconsented-­to pregnancy cost is at least as high as the anal-­intercourse cost. Hence, the unconsented-­to pregnancy cost is sufficiently high to cancel the duty to save. An objector might raise the following counterexample to my argument.44 Case 19: Baby Suppose a woman, Alice, hears a knock on her door, opens it, and discovers a one-­week-­old baby at her doorstep, like in the film with Tom Selleck, Ted Danson, and Steve Guttenberg, Three Men and a Baby. But unlike that film, Alice lives in northern Alaska as a virtual hermit, residing hundreds of miles from her nearest neighbor and the closest city. She also has no means of communication, that is, telephone, Internet access, and so on. So, she cannot call social services for help (assuming her country of residence even has such a government agency). It is the dead of winter, which means that she will not be able to take care of the child, but she only has to take care of it for at least four months. Because Alice is in her mid-­sixties, caring for this child will likely result in physical and mental stress which will increase her chance of acquiring other ailments that she has so far avoided by her reclusive and stress-­free lifestyle. Suppose, however, Alice is a devotee of Judith Jarvis Thomson, and reasons this way: “I did not consent to have this child placed on my doorstep. To care for this child will entail physical and mental effort on my part to which I did not consent. Thus, I will return the child to where I found it, thus denying the child shelter, sustenance, care, and attention. This no doubt will result in its death. It may be eaten by wolves or merely die of exposure to the elements. But since I

144 Abortion am not responsible for its neediness and/or its existence, and since I did not consent, either explicitly or implicitly, to care for this child, I have no obligation to this child whatsoever.” It is clear that given the moral principles that guide the examples offered by Thomson, Boonin, and McDonagh, Alice has a right to abandon this child left at her doorstep. Yet, there seems something deeply wrong with this conclusion. I suspect its wrongness lies in an intuition we have about our moral obligation as a community to those members of the human family that are weak, vulnerable, and defenseless. Because American jurisprudence has generally not recognized a legal duty to rescue, it seems morally obvious to some that a law that would require such would be unjust. But when the parties involved are the reclusive Alice and a baby abandoned at her doorstep, something deep in our souls rises to the surface, and we see, with clarity, that if Alice were to apply Thomson’s reasoning with complete consistency we would not congratulate her for her analytical skill and/or philosophical insight. We would condemn her and hope that she remains in northern Alaska alone with her books in contemporary moral philosophy. One problem with this objection is that the duty to save does not apply when the means of saving involves a great sacrifice, for example, a hated body invasion. Consider this case, which is similar to Case 18. Case 20: Fat Man A fat man, also smelly because he rarely bathes, is dying. The only way to save him is for him to gain antibodies via rigorous anal sex with someone with the right blood type (via some science-­fiction-­based reason), Given the remote location of the fat man, Alice, and a few others and given that only Alice has the right blood type, she has to decide whether to save the fat man by permitting him to enter her. It intuitively seems that she is not required to do so. This is true even if the physical and mental stress of the sex is less than that of caring for the baby. Because our intuitions in the sex case are as strong as those of the baby case, at the very least the preceding case is less strong than it initially seems. The intuition in the preceding case that the objector relies on goes to whether Alice is virtuous or vicious, not whether she has a duty to save the infant. Assuming the earlier arguments succeed, a second problem is that there is good reason to think that there is no duty to save strangers. A second objector might argue that this reasoning would apply to deadbeat dads forced to pay child support for eighteen years, even if they did not intend to sire a child (suppose they used contraception). Why, the objector asks, is it just for the state to require a manual laborer to use 20% of his bodily effort to support another human being he did not consent to care for?

Forfeiture and Abortion  145 If the father incurs such a debt, then it is owed to the mother or the child. If it is owed to the mother, then it is an instance of a person having paid back a debt that he did not know he generated. Rather, he ran up a debt that was covered by another, and he then owes her money. This is similar to how a man would owe his ex-­wife compensation if he ran up large debts on her credit card after they were divorced (perhaps, he inadvertently kept using the credit card mistakenly thinking it was in his name). If, instead, the debt is owed to the child, then the father’s situation is much like that when he runs up a credit-­card debt against the mother, even though it is owed to a minor. This is similar to how a person who drives drunk and badly injures a child owes compensation for the harm he caused her. In both cases, the stranger status is irrelevant because of it is an instance of a person running up a debt against another. There is also the issue of why, as a moral matter, the father should have to pay for raising a child he didn’t choose to create and whom he doesn’t know exists. There is an interesting argument as to why a parent who gets to enjoy the raising of a child and chooses not to share this joy with another gets to transfer some, if not most, of the financial costs to a parent without knowledge of the child. This is especially true if he were willing to be the sole custodial parent and take on all the costs and benefits of raising the child but was denied the opportunity of doing so. This is an interesting issue but not one we need to solve here. There is a further issue of whether an unknown child is the father’s family in a moral or metaphysical way different from the way in which offspring generated by his donation to a sperm bank (consider, for example, Nobel Prize Sperm Bank) are his family. In any case, abortion involves a right-­violating body invasion and thus any duties of love or support that a father has when his offspring is a child or retroactively when his offspring is an adult does not make abortion permissible. A third objector might argue that if the fetus is a stranger and not a family member, then a deadbeat dad who is caught eighteen years later does not owe the mother any remuneration for the expenses she incurred in bringing up their child with no assistance, since the child is not the dad’s family, only a stranger. But that doesn’t seem right. This criticism raises the issue of why a father, especially one who did not choose to have a child but was the victim of failed contraception, owes a retroactive duty to support his child until adulthood, when he didn’t learn about the child until she was eighteen. As a moral matter, it is not clear why a woman has a right to remuneration when she solely enjoyed raising the child. If the father has a moral debt to the child to pay for her upbringing similar to the debt generated by inadvertently ordering something on the Internet, then the debt here is not distinctive. Still, it is not clear if this is correct given that the father was denied the opportunity of raising the child or even the knowledge that he had one. This is even more clear if an individual does not come into existence until it has a brain and thus the woman decided to create the child by not aborting the zygote via, for example, chemical abortion. This depends on

146 Abortion the notion that an individual exists only if he has a brain, and here I take no position on this issue. There might be a consequentialist justification of remuneration in that it is efficient to have men internalize some of the costs of fathering children as an incentive to get them to have them only when they are willing to pay for some, if not all, of their costs. This would make sense of a couple of features of coerced child support, specifically, the fact that the noncustodial parent owes a percentage of his or her income rather than a fixed amount and the inability of the former noncustodial parent to get out of paying by getting the current custodial parent to turn the child over to him. Neither is true of ordinary debts. They are recovered in fixed amounts (unless a contract says otherwise), and the harmed party (plaintiff) has a duty to mitigate the harm. A fourth objector might ask, “What if your free actions put the stranger in a position of vulnerability? “ This is the case for consensual sex that results in pregnancy and thereby creates a vulnerable person. At the very least, the critic asserts, you owe the stranger the courtesy of not killing him. This analogy to pregnancy is not a close one. The woman in the case of pregnancy does not put the fetus in a position of vulnerability. Rather, she creates him. This can be seen in that were she not to exist, the fetus would not be in a better position. Even if she did put in him a vulnerable position, the woman need not save or, in fact, refrain from killing him if he is invading her body. By analogy, if a Dutch family takes in a young German whom they accidentally endangered by outing him as a spy, they need not continue to save him or even refrain from killing him after he repeatedly tries to rape the family’s fifteen-­year-­old girl. If the preceding argument works, the fetus is an unjust body invader, and the woman does not have a duty to save or refrain from killing him.

Part Four: Conclusion This chapter has argued that abortion is just because it does not infringe on anyone’s right. The claim rests on three assumptions. First, the fetus has no right to be inside the woman. Second, if the fetus has no right to be inside the woman, then it may be removed with proportionate force. Third, in abortion, the woman uses proportionate force. The third argument rests on the notion that when the fetus’s presence is unconsented to, the fetus’s infringement on the woman’s right is as severe as rape, and rape warrants lethal force. I then considered two objections: abortion is disproportionate because trespass does not warrant lethal force, and abortion is disproportionate because the fetus is innocent and, thus, unlike a rapist. I take these objections to have failed. I then argued that abortion is morally permissible because pregnant women do not fail to satisfy the duty to save. One reason for this is that there is no such duty. A second reason is that even if there is such a duty, it does not make abortion wrong. A woman does not have the duty to engage in

Forfeiture and Abortion  147 Table 6.4  Two Main Arguments for the Permissibility of Abortion Thesis

Issue

Argument

Abortion is just.

Does abortion respect the fetus’ rights?

Abortion is morally permissible.

Does the woman satisfy the duty to save?

Yes 1. Assumption 1: No Right. The fetus has no right to be inside the woman. 2. Assumption 2: Removal. If the fetus has no right to be inside the woman, then it may be removed with proportionate force. 3. Assumption 3: Proportionate Force. In abortion, the woman uses proportionate force. Yes Assumption 1: No Duty to Save. There is no duty to save. Assumption 2: Duty to Save. Even if there is a duty to save, it does not make abortion wrong.

anal intercourse as a means of saving someone because the anal-­intercourse cost is sufficient to cancel the duty to save and the unwanted pregnancy cost is at least as high as the anal-­intercourse cost. Table 6.4 summarizes the two main arguments.45

Notes   1 See Judith Jarvis Thomson, “A Defense of Abortion,” Philosophy and Public Affairs 1 (1971): 47–66.   2 See ibid., 60.   3 See ibid., 55. For an interesting discussion of this case, see Evangelos Proptopapadakis, “A Cool Hand on My Feverish Forehead: An ‘Even Better’ Samaritan and the Ethics of Abortion,” Philosophy Study 2 (2012): 115–123.   4 For other people who argue that Thomson’s argument fails because it views abortion as a letting-­die problem rather than an issue of permissible killing, see Francis Beckwith, “Personal Bodily Rights, Abortion, and Unplugging the Violinist,” International Philosophical Quarterly 32 (1992): 105–118, esp. 116– 117; Frances Kamm, Creation and Abortion (Oxford: Oxford University Press, 1992), 74–76; Iain Benson, “What’s Wrong With ‘Choice’,” in Ian Gentles, ed., A Time to Choose Life: Women, Abortion, and Human Rights (Toronto: Stoddart Publishing Col, 1990), 24–46, esp. 43–44; Stephen Schwarz, The Moral Question of Abortion (Chicago, IL: Loyola University Press, 1990), 115–116; Stephen Schwarz and R. K. Tacelli, “Abortion and Some Philosophers: A Critical Examination,” Public Affairs Quarterly 3 (1989): 81–98, esp. 84–87; Baruch Brody, Abortion and the Sanctity of Human Life: A Philosophical View (Cambridge, MA: The MIT Press, 1975), 30; John Finnis, “The Rights and Wrongs of Abortion: A Reply to Judith Jarvis Thomson,” Philosophy and Public Affairs 2 (1973): 117–45, esp. 141.   5 On the notion that abortion is an intentional causing of death, see Patrick Lee, Abortion and Unborn Human Life (Washington, DC: Catholic University of

148 Abortion America Press, 1996), 111; Thomas Hurka, “Review of F. M. Kamm’s Creation and Abortion,” Journal of Medical Ethics 20 (1994): 121–122.   6 Thomson assumes that one can disconnect oneself from the violinist. See Thomson, “A Defense of Abortion,” 55. In some accounts, it is wrong to disconnect oneself from the violinist. See David Hershenov, “Abortions and Distortions: An Analysis of Morally Irrelevant Factors in Thomson’s Violinist Thought Experiment,” Social Theory and Practice 27 (2001): 129–148; Peter Singer, Practical Ethics (New York: Cambridge University Press, 2011), 134.   7 Jeff McMahan argues that it depends on who disconnects the violinist. See Jeff McMahan, “Killing, Letting Die, and Withdrawing Aid,” in Bonnie Steinbock and Alastair Norcross, eds., Killing and Letting Die, 2nd ed. (New York: Fordham University Press, 1994), 383–420. He argues that if the person connected to him disconnects the violinist, it is a letting die. If a third party does so, then in some circumstances it is a killing. Elsewhere, Thomson argues that it is permissible to kill the fetus if that is necessary to detach him. See Judith Jarvis Thomson, “Rights and Deaths,” in William Parent, ed., Rights, Restitution, and Risk: Essays in Moral Theory (Cambridge, MA: Harvard University Press, 1986), 31–32.   8 For an in-­depth defense of Thomson’s argument here, see David Vail-­Boonin, “A Defense of ‘A Defense of Abortion’: On the Responsibility Objection to Thomson’s Argument,” Ethics 107 (1997): 286–313.   9 See Thomson, “A Defense of Abortion,” 60. 10 I am assuming here that only doings, and not omissions, can cause harm and that a doing is a real (non-­Cambridge) change in the properties of an object. 11 Other people who assert that a criminal forfeits some of his moral rights include Stephen Kershnar, “The Structure of Rights Forfeiture in the Context of Culpable Wrongdoing,” Philosophia 29 (2002): 57–88; A. John Simmons, “Locke and the Right to Punish,” in A. John Simmons, Marshall Cohen, Joshua Cohen, and Charles Beitz, Punishment (Princeton, NJ: Princeton University Press, 1995), 238–52; Judith Jarvis Thomson, The Realm of Rights (Cambridge, MA: Harvard University Press, 1990), 365–66;Vinit Haksar, “Excuses and Voluntary Conduct,” Ethics 96 (1986): 317–329; Murray Rothbard, The Ethics of Liberty (Atlantic Highlands, NJ: Humanities Press, 1982); Alan Goldman, “The Paradox of Punishment,” Philosophy and Public Affairs 9 (1979): 30–46; Roger Pilon, “Criminal Remedies: Restitution, Punishment, or Both?” Ethics 88 (1978): 348–357. These theories differ with regard to whether rights-­forfeiture is a fundamental feature of rights or explained by a more fundamental principle. 12 The notion that it is a permissible rights-­infringement can be seen in Phillip Montague, Punishment as Societal Defense (Boston, MA: Rowman & Littlefield Publishers, Inc., 1995), chap. 5. 13 The notion that self-­defense involves a narrowly bounded right (for example, a right to life except-­where-­necessary-­to-­save-­someone’s-­life) is discussed in Judith Jarvis Thomson, “Self-­Defense and Rights,” in William Parent, ed., Rights, Restitution, and Risk (Cambridge: Harvard University Press, 1990), 37–42. 14 Others who assert that a criminal forfeits some of his moral rights include Stephen Kershnar, “The Structure of Rights Forfeiture in the Context of Culpable Wrongdoing,” Philosophia 29 (2002): 57–88, A. John Simmons, “Locke and the Right to Punish,” in A. John Simmons et al., eds., Punishment (Princeton: Princeton University Press, 1995), 238–252, Judith Jarvis Thomson, The Realm of Rights (Cambridge: Harvard University Press, 1990), 365–366, Vinit Haksar, “Excuses and Voluntary Conduct,” Ethics 96 (1986): 317–329, Murray Rothbard, The Ethics of Liberty (Atlantic Highlands, NJ: Humanities Press, 1982), Alan Goldman, “The Paradox of Punishment,” Philosophy and Public Affairs

Forfeiture and Abortion  149 9 (1979): 30–46; Roger Pilon, “Criminal Remedies: Restitution, Punishment, or Both?” Ethics 88 (1978): 348–357. These theories differ with regard to whether right forfeiture is a fundamental feature of rights or explained by a more fundamental principle. 15 The notion that it is a permissible right infringement can be seen in Phillip Montague, Punishment as Societal Defense (Boston: Rowman & Littlefield Publishers, Inc., 1995), ch. 5. 16 The notion that self-­defense involves a narrowly bounded right (for example, a right to life-­except-­where-­necessary-­to-­save-­someone’s-­life) is discussed in Judith Jarvis Thomson, “Self-­Defense and Rights,” in Parent, ed., Rights, Restitution, and Risk, 37–42. 17 See Thomson, “A Defense of Abortion”; Judith Jarvis Thomson, “The Right to Privacy,” Philosophy and Public Affairs 4 (1975): 295–314. 18 For such an account in the context of torture, see Michael Moore, “Torture and the Balance of Evils,” in Michael Moore, ed., Placing Blame (Oxford: Clarendon Press, 1997), 726–736. 19 The idea for this case came from a visit to the Museum of Jewish Heritage in lower Manhattan. A sprite elderly woman who (along with her sister) was in Auschwitz explained to me that that the Nazis did not send them to be killed on account of their being pretty teenagers. 20 See Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), 28–32; and Ronald Dworkin, Taking Rights Seriously (New York: Harvard University Press, 1977), xi. 21 For the use of a market to rank rights-­infringements, see Michael Davis, “How to Make Punishment Fit the Crime,” Ethics 93 (1983): 726–752; Michael Davis, To Make the Punishment Fit the Crime: Essays in the Theory of Criminal Justice (Boulder, CO: Westview Press, 1992). 22 See Samantha Brennan, “How Is the Strength of a Right Determined? Assessing the Harm View,” American Philosophical Quarterly 32 (1995): 383–393. 23 All three accounts are found in Judith Jarvis Thomson, “Some Rumination on Rights,” in Parent, ed., Rights, Restitution, and Risk, chap. 4. 24 See ibid. 25 Wesley Newcomb Hohfeld, “Fundamental Legal Conceptions as Applied in Judicial Reasoning,” Yale Law Journal 23 (November 1913): 16–59. 26 The idea for this point comes from Brennan, “How Is the Strength of a Right Determined? Assessing the Harm View,” 387–388. 27 For this point, see ibid., 392. 28 See ibid., 389. 29 See F. M. Kamm, “Non-­Consequentialism, the Person as an End-­in-­Itself, and the Significance of Status,” Philosophy and Public Affairs 21 (1992): 354–389. 30 The autonomy-­based theory of rights is called the “will theory of rights.” This theory asserts that rights function to protect choices. As such they always include a Hohfeldian power plus the other Hohfeldian elements over which the power ranges. See, for example, H. L. A. Hart, Essays on Bentham: Studies in Jurisprudence and Political Theory (Oxford: Clarendon, 1982); Carl Wellman, A Theory of Rights (Totowa, NJ: Rowman and Allenheld, 1985); and Hillel Steiner, An Essay on Rights (Oxford: Blackwell, 1994). I should mention that on my version of the will theory, rights are constituted by claims, although these claims are often accompanied by powers. In contrast, the “interest theory of rights” asserts that rights function to protect interests. As such they are constituted by a claim. See, for example, David Lyons, Rights, Welfare, and Mill’s Moral Theory (New York: Oxford University Press, 1994); Neil MacCormick, “Rights in Legislation,” in P. Hacker and J. Raz,

150 Abortion eds., Law, Morality, and Society: Essays in Honour of H. L. A. Hart (Oxford: Oxford University Press, 1977): 189–209; Joseph Raz, The Morality of Freedom (Oxford: Oxford University Press, 1986); and Matthew Kramer, “Rights Without Trimmings,” in Matthew Kramer, N. E. Simmonds, and Hillel Steiner, eds., A Debate Over Rights (New York: Oxford University Press, 1998), 7–111. 31 A very different account of rights than interest-­or autonomy-­based models is that rights are assigned by fairness as modeled by the Rawlsian Original Position. To see this theory applied to abortion, see Stephen Maitzen, “Abortion in the Original Position,” Personalist Forum 15 (1999): 373–378. 32 For the idea for these two conditions and a third one (for an aggregate whose interests exceed a threshold each and every member of the aggregate has a minimum benefit from the rights-­infringement), see Samantha Brennan, “Threshold for Rights,” The Southern Journal of Philosophy 33 (1995): 143–168. In some accounts, it matters whether the beneficiary is also the rights holder; see Samantha Brennan, “Paternalism and Rights,” Canadian Journal of Philosophy 24 (1994): 419–440. For a more general discussion of how an account of overriding rights is necessary for a moderate theory of rights, see Shelly Kagan, The Limits of Morality (Oxford: Clarendon Press, 1989): 4–5 and 50–51. 33 I owe this objection to Francis Beckwith. 34 I owe this objection to Catherine Nolan and Ashley Bergman. 35 This example comes from George Fletcher, “Proportionality and the Psychotic Aggressor: A Vignette in Comparative Criminal Theory,” Israel Law Review 8 (1973): 171–187. 36 See Nozick, Anarchy, State, and Utopia, 34. 37 See Nancy Davis, “Abortion and Self-­Defense,” Philosophy and Public Affairs 13 (1984): 175–207. 38 See ibid., 190–191. 39 The underlying assumptions here are rights are all or mostly property rights, property rights rest on autonomy, and autonomy favors the person who is initially being interfered with in a certain way. I provide such a picture in Stephen Kershnar, “Private Property Rights and Autonomy,” Public Affairs Quarterly 16 (2002): 231–258. 40 See Nozick, Anarchy, State, and Utopia; and John Locke, Two Treatises of Government, ed. Peter Laslett (Cambridge: Cambridge University Press, 1988). 41 See Francis Beckwith, “Does Judith Jarvis Thomson Really Grant the Pro-­Life View of Fetal Personhood in Her Defense of Abortion? A Rawlsian Assessment,” International Philosophical Quarterly 54 (2014): 443–451. 42 David Boonin identifies other non-­ rights-­ based arguments concerning the Golden Rule, culture of death, pro-­life feminism, and uncertainty about when an individual comes into existence. I assume that these arguments are less plausible than is the duty to save. See David Boonin, A Defense of Abortion (New York: Cambridge University Press, 2003), chap. 5. 43 As a side note, plenty of women appear to enjoy sex episodes that include anal sex. Consider William Saletan’s analysis: “Check out the orgasm data. Among women who had vaginal sex in their last encounter, the percentage who said they reached orgasm was 65. Among those who received oral sex, it was 81. But among those who had anal sex, it was 94. Anal sex outscored cunnilingus.” See William Saletan, “The Ass Man Cometh: Experimentation, Orgasms, and the Rise of Anal Sex,” Slate.com, October 5, 2010, www.slate.com/articles/ health_and_science/human_nature/2010/10/the_ass_man_cometh.2.html. There is some reason to believe that this is enjoyment of the anal sex itself and not a gift to men for doing other things women like. See William Saletan, “The Riddle of the Sphincter: Why Do Women Who Have Anal Sex Get More Orgasms?”

Forfeiture and Abortion  151 Slate.com, October 11, 2010, www.slate.com/articles/health_and_science/ human_nature/2010/10/the_riddle_of_the_sphincter.html. Saletan’s data come from Debby Herbenick, M. Reece, V. Schick, S. A. Sanders, B. Dodge, and J. D. Fortenberry, “An Event-­Level Analysis of the Sexual Characteristics and Composition Among Adults Ages 18 to 59: Results From a National Probability Sample in the United States,” The Journal of Sexual Medicine 7:5 (October 2010): 346–361. Were the woman in the above case to enjoy anal sex, this still would not change our intuition about the case. Still, this would make it less similar to unconsented-­to abortion. 44 This objection comes from Francis Beckwith, Defending Life: A Moral and Legal Case Against Abortion Choice (New York: Cambridge University Press, 2007), 195. 45 I am very grateful to James Delaney, Neil Feit, John Martin Fischer, David Hershenov, Rose Hershenov, John Keller, Catherine Nolan, Dale Tuggy, PANTC Reading Group members, and audience members at the Society of Christian Philosophers for their extremely helpful comments and criticisms on this argument. I would also like to thank State University of New York at Buffalo and State University of New York at Fredonia for hosting debates and Niagara University for hosting a talk on this topic.

7

Consequentialism and Abortion

In the previous chapter, I argued that the pro-­life position conflicts with the best non-­ consequentialist theory of killing: forfeiture theory. Non-­ consequentialism is the view that the right does not always maximize the good (that is, make the world a better place than would any other action available to the agent). This conflict is not a problem if consequentialism is true. In this chapter, I argue that, in most cases, consequentialism supports the pro-­life position. It is unclear whether consequentialism is consistent with some Christian pro-­life worldviews because it sits uneasily with the specific prohibition found in the Ten Commandments, the doctrine of double effect, the prohibition on euthanasia, and so on. Consequentialism also has counterintuitive implications. For example, it entails that there is a duty to reproduce and to kill the permanently depressed. On the utilitarian version of consequentialism, priority should be given to utility monsters. Adultery and other forms of cheating are sometimes obligatory. Consider a case in which a man and a woman married to other people would benefit from adulterous sex, and neither their spouses nor anyone else would be harmed by it, perhaps because they never found out about it. In such a case, utilitarianism would entail that adultery is not merely permissible but also obligatory, because it would make the world better for someone and not worse for anyone. People are sometimes required to hook up to the experience machine. Whether these counterintuitive implications are fatal to the theory is not something we need address here. Rather, I merely wish to show that consequentialism supports the pro-­life position, non-­consequentialism does not. Thus, the sort of pro-­life argument that the Christian pro-­life position needs conflicts with its moral doctrines. In addition, it conflicts with the way in which Christian pro-­life intellectuals and organizations have argued for their position. The pro-­life movement thus has the choice of adopting an argument that conflicts with its other doctrines and that its proponents would find absurd or sticking with arguments that fail given its theories of hell, rights, and so on. This chapter, then, sets out the type of argument that the pro-­life position needs to justify its conclusion.

154 Abortion

Part One: Introduction Consequentialism is the theory that the right maximizes the good. Act-­ consequentialism is the theory that there is a duty to do, and only do, an act that brings about as much good as other act available to the agent. An abortion is an intentional killing of a fetus and, perhaps, in some cases an intentional letting die. I will use “fetus” loosely here to cover the zygote, embryo, and fetus (period between conception and birth). A standard instance of an abortion is suction curettage. In suction curettage, a fetus is intentionally killed by cutting it up with a metal blade and evacuating the parts via a vacuumlike apparatus.1 A significant percentage of abortions occur via this technique, and it is almost always done in the first trimester. Abortion might occur via letting die if the use of an abortion pill is a type of abortion and if it merely allows the fetus to die by preventing implantation. The abortion pill and suction curettage are common first trimester methods of abortion.2 All abortion-­pill use and roughly 98% of curettage occur in the first thirteen weeks (roughly, the first trimester).3 In this chapter, I argue that if consequentialism is true, then these theses are true. Thesis 1: Wrong. On average, abortion is wrong. Thesis 2: Illegal. Abortion should be illegal. The theses are true in the context of the U.S. in the twenty-­first century. The first is not true for all cases of abortion. For example, it is not wrong to abort a fetus who would have grown up to be an accomplished serial killer. Part two of the chapter defends the first thesis. Part three defends the second. Part four considers objections. There are several reasons this issue matters. First, one might think consequentialism is true and that it implies the wrongness of abortion. Non-­consequentialism assumes people are morally responsible and, arguably, they are not.4 Also, rights lie at the heat of non-­consequentialism. Elsewhere I argue that they correlate with consent and forfeiture, but the first is a maximization function, and the second doesn’t work.5 Thus, non-­ consequentialism has serious, and, to my mind, fatal, problems. Second, even if one is a non-­consequentialist, consequentialist reasons oppose and, in some cases, override deontological reasons. If this theory is true, then consequentialism reasons can make a wrong act less wrong than it would otherwise be. Consider the following case. Analogy: Override Killing An army physician (and surgeon) in Vietnam is the only physician alive in a war zone. Based on his past performance and the frequency with which badly injured soldiers have been brought into the MASH unit, he will (or, perhaps, is expected to save) the lives of 32 soldiers. His

Consequentialism and Abortion  155 social group is out of control, and he takes part in a rape of a bound Vietnamese woman. Another soldier is about to shoot the physician in the head to cut short his rape of the girl (he is already inside her). A male nurse, who is a strict Catholic, pulls his own gun and prevents the soldier from doing so. Similarly, imagine a male nurse and a strict Catholic who prevents a woman from getting an abortion by canceling her credit card. The fetus will have thirty-­one descendants. Table 7.1 compares the two preventions. Depending on one’s view of the stringency of one’s right over her body or the permission to defend it in a third party, the preventions in the above two cases might be wrong.6 Still, on threshold deontology, the action is made less wrong by the lives saved. Similarly, we might wonder whether in general consequentialist considerations make the prevention of abortion less wrong than it would otherwise be. Third, arguably, people consent to the state pursuing the best policy. Consider, for example, the general welfare clause of the Constitution. We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. [Emphasis added] The best policy is a function of what brings about the best consequences. It is plausible that with regard to actors within the U.S., the best consequences often correlate with the aggregate well-­being, and this is what is referred to by “general welfare.” By analogy, consider the notion that people waive their rights in order to authorize government agents (military and police) to use force as a way to promote their general welfare. Fourth, some people want to make the world a better place. It is helpful to consider whether they do more good by having an extra child or by focusing their efforts on other projects. For example, a do-­gooder might want to know whether she does more to make the world a better place through her feminist or environmental activism or by having an extra child. Table 7.1  Analogy Context

MASH unit

Abortion

Agent Invader Right Invaded Action prevented Good achieved

Nurse Rapist Woman’s body Defensive killing 32 lives saved

Nurse Fetus Woman’s body Defensive killing 32 lives saved or created

156 Abortion

Part Two: Argument for Thesis 1 Table 7.2 shows the argument for the first thesis (on average, abortion is wrong). My defense of (P2) rests in part on a defense of Assumption 1 (If consequentialism is true, then an act is right only if it maximizes or satisfices the (a) totalist, (b) impersonal, and (c) possibilist good). Consider first totalism. It holds that the value of a world is equal to the sum of its basic intrinsic-­value units.7 If we assume that welfarism is true (intrinsic value is a function of, and only of, well-­being) and that well-­being is solely a function of utility, then we end up with the following version of totalism: Theory 1: Totalism. The intrinsic value of a population is the sum of individuals’ utility. Here Q is a population’s level of intrinsic value. It is thus a quantity of utility. Term h1 is the utility level of the first individual, h2 is the utility level of the second, and so on. Q = h1 + h2 + h3 + . . . The totalist function converts members’ utility levels into a population’s intrinsic-­value-­level by summing them. The problem with this theory is that it generates the repugnant conclusion: Principle 1: Repugnant Interpersonal Conclusion. For a large population that has very high utility (10 billion people), there is a much larger population (100,000 billion people) every member of which has barely positive utility that has more intrinsic value than the first population.8 For example, a massive population whose members have barely positive utility (for example, they have scurvy and parasites) intuitively seems less valuable than a much smaller population all of whom enjoy very high utility. Table 7.2  Argument for Thesis 1 (P1) (P2)

Consequentialism is true. If consequentialism is true, then, on average, abortion is wrong.

(C1)

Hence, on average, abortion is wrong.

Background assumption Assumption 1: Consequentialism to Maximization. If consequentialism is true, then an act is right only if it maximizes or satisfices the totalist, impersonal, and possibilist good. Assumption 2: Abortion Not Maximize. On average, abortion does not maximize or satisfice the totalist, impersonal, and possibilist good. (P1), (P2)

Consequentialism and Abortion  157 A second problem is that this theory makes people valuable solely as vessels for well-­being. This intuitively seems to fail to recognize the way in which they are valuable. Despite these problems, I think totalism is true. As argued in the following, competitor theories have some of the same types of problems as totalism as well as additional problems that are far worse. The most plausible competitor to totalism is averagism. Again assuming welfarism and a utility theory of well-­being, averagism holds that intrinsic goodness depends on the average well-­being level. Theory 2: Averagism. The intrinsic value of a population is equal to its average utility level. The average might be a matter of utility level per individual, per time, per individual per time, or per time per individual.9 These measures differ, and averagism is true only if it can provide a principled reason to prefer one average over the others. Here Q is the population’s intrinsic-­value level, n is the number of individuals in the population (for example, 300 million people), t is an amount of time (for example, all years in which individuals exist), h1 is the utility level of the first individual, h2 is the utility level of the second, and so on. Q1 = (h1 + h2 + h3 + . . .)/n Q2 = (h1 + h2 + h3 + . . .)/t Q3 = [(h1 + h2 + h3 + . . .)/n]/t Q4 = [(h1 + h2 + h3 + . . .)/t]/n Alternatively, the time can be a specific time if we wanted the average at a particular time, for example, t2015. Table 7.3 provides an example of how the averagist function Q1 converts a collection’s utility levels into a population’s intrinsic-­value level. The theory avoids the repugnant conclusion. In this account, a very large population each with a very low utility level per person has a very low average and thus is not very valuable.

Table 7.3  Averagism Per Life Person

Utility Level

1 2 3 4 Total Average [total/4 people] (utility level/individual)

100 80 60 40 280 70

158 Abortion Q1 generates an analogue to the repugnant conclusion within a life. Principle 2: Repugnant Intrapersonal Conclusion. For a person whose life goes very well (high utility) and who lives for a century, there is another person who lives much longer (100,000,000 years) every year of which involves barely positive utility. The second life is intrinsically better.10 Q1 entails this principle because the latter has more utility units per individual.11 It is implausible that the Repugnant Interpersonal Conclusion is false and the Repugnant Intrapersonal Conclusion is true. Both are false on Q3 and Q4. I will assume that averagism takes the form of Q3 because this captures the idea that a life consisting of very many years of barely positive utility is not a very valuable life because it has a low level of utility at each moment. Hence, if averagism is true, then momentary stage averagism of the sort characterized by Q3 is true. Both versions of averagism run afoul of various objections. Here they are in list form in Table 7.4.12 Consider next the diminishing-­value function. Theory 3: Diminishing-­Value Function. The intrinsic value of a population is a function of the diminishing marginal value per individual’s utility.13 On one version, Ng’s theory, Q is the population’s utility level, f(n) is the diminishing marginal function, i is the number of individuals in a sequence, and A is the population’s average utility level. Q1 = f(n) × A n

f (n) = ∑ ki –1 = k0 + k1 + k2 …kn−1 1 > k > 0 i =1

On a second version, Ted Sider’s theory, the first part of the function concerns individuals with positive or neutral utility arranged from most to least utility. Here k is the utility level for each individual. The second part concerns individuals with negative utility arranged from most to least negative utility. Q2 = f(n) n

m

i =1

j =1

f (n) = ∑ hi / ki 1 + ∑ ui / k j 1 1 > k > 0 Terms h1, h2, h3, . . . are the utility levels of people with positive or zero utility in descending order. Terms u1, u2, u3, . . . are the utility levels of people with negative utility from most to least negative.

Consequentialism and Abortion  159 Table 7.4  Against Averagism Theory

Objections

Totalism Averagism 1 [Q1] (Well-being/life)

Repugnant Conclusion Bearer. Happiness is in itself intrinsically good. Averagism denies this. Egyptology (Reverse Egyptology). If averagism is true, then whether having a happy child makes the world better depends on how happy past Egyptians were (or future Egyptians will be). This purported dependence is false. Mere Addition Principle. The addition of happy people to the world always makes the world a better place. Averagism denies this. One Happy Person. If averagism is true, then the best world is the one with a single maximally happy person. This is not the best world. Repugnant Conclusion. If averagism is true, then the Intrapersonal Repugnant Conclusion is true. The Intrapersonal Repugnant Conclusion is false. Intensity. It matters how happy people are per moment and not simply their aggregate lifetime happiness. Averagism denies this. Sadistic Conclusion. The addition of people whose lives are not worth living always makes the world worse than the addition of people with lives worth living. Averagism denies this. Bearer. See above. Egyptology (Reverse Egyptology). See above. Mere Addition Principle. See above. One Happy Moment. If momentary averagism is true, then the best world is one with one maximally happy moment. This is not the best world. Repugnant Conclusion. If averagism is true, then the addition of many billions of people with very low but positive momentary well-being makes the world a better place if they increase the average, however minor the increase. This is false. Sadistic Conclusion. The addition to the world of positive moments of life is always better than the addition of negative moments. Averagism denies this. Killing. If momentary averagism and consequentialism are true, then it is obligatory to kill people who lower the momentary average. It is not obligatory.

Averagism 2 [Q3] (Well-being/life/ time)

This theory is a compromise between totalism and averagism. It functions more like totalism for small populations and more like averagism for large ones. Table 7.5 shows an example of how Sider’s diminishing-­value function converts members’ utility levels into a population’s intrinsic-­value level. This avoids the repugnant conclusion because each successive person with minimal positive utility adds less and less to the population intrinsic-­ value-­level. It avoids the arbitrariness of a critical-­level theory that counts as good only positive well-­being above a nonzero critical threshold.

160 Abortion Table 7.5  Example of Diminishing Marginal Value Person

Well-Being (utils)

Value-Function (k = 0.5)

Net Addition

1 2 3 4 Total

100 80 60 40 280

1 0.5 0.25 0.125

100 40 15 5 160

It does not avoid the Repugnant Intrapersonal Conclusion because it counts an individual’s life as having gone better if it has a greater total utility. This is a problem to the extent that the theory is justified by its ability to avoid the family of repugnant conclusions. The contribution of each individual depends on how his level relates to others rather than merely his own utility level. Similar to averagism, then, this theory is a relational theory for calculating intrinsic value. This is a feature of all accounts in which an individual’s utility level depends on a reference class. This theory, thus, runs afoul the notion that happiness is in itself intrinsically good. A defender of this theory might respond that it counts happiness as intrinsically good and merely applies a function other than summing. The problem is that relational functions do not make happiness a monadic ground of the intrinsic value of a world. Rather they make relational happiness the ground of intrinsic value and, hence, do not make happiness in and of itself intrinsically good. This theory also runs afoul of the Non-­Arbitrary Principle. There is no way in principle to set the diminishing-­value function (that is, k), power of the function (for example, i − 1 and j − 1 rather than i and j minus some other number), and ordering of people (for example, most to least utility rather than least to most). This matters because the ordering determines the weight to be given to each member’s utility level. The arbitrariness of the ordering can be clearly seen in that the theory is committed to differently weighting someone if he has a doppelganger (qualitatively identical individual) in another world that has more people with higher utility levels. It is implausible that doppelgangers can add quite different amounts of intrinsic value to the world. value-­ function theories, such as Sider’s theory, run Some diminishing-­ afoul the following principle. Principle 3: Across Board/Different Number Principle If one population has greater total and an average level of utility relative to a second population and is more equal, then the first has greater value.14 This principle seems intuitively appealing.

Consequentialism and Abortion  161 Table 7.6  Diminishing-­Value Function and Principle 3 Person

Population A’s utility levels

ValueFunction (k = 0.5)

Population A’s Net Addition

Population B’s utility levels

1 2 3 4 Total

100 80 60 40 280

1 0.5 0.25 0.125

100 40 15 5 160

75 75 75 38 75 19 75 9 300 141 (greater than A) (less than A) 75 (greater than A) Equal (more equal than A)

Average Equality

70 Unequal

Population B’s Net Addition

Table 7.6 provides an example of a distribution whereby the diminishing-­ value function fails to satisfy this principle. Population B has a higher total and average utility level and is more equal than A. Yet, given the way in which the diminishing value function operates, A has a higher intrinsic-­ value level. Table 7.7 provides a summary of relevant objections. Totalism is thus the best theory. Competitor theories share its problems and it escapes a host of other problems that plague averagism and diminishing marginal value theory. We now turn to evaluating whether impersonal morality is true. Consider its rival: person-­affecting morality. Concept 1: Person-­Affecting Morality (PAM). One outcome is better than a second only if it is better for someone. Part 1: Necessary. If outcome A is better than B, then A is better than B for at least one person. Part 2: Sufficient. If outcome A is better than outcome B for at least one person and not worse for anyone, then A is better than B.15 Concept 2: Epicureanism. A person’s well-­being when he exists cannot be compared to his well-­being when he does not exist. Impersonal morality asserts that morality exists and PAM is false. Table 7.8 shows the argument against PAM.16 Consider which of the worlds described in Table 7.9 are better. PAM entails that hell is better than heaven because the former is better for someone and worse for no one. The movement from heaven to hell is a Pareto improvement. PAM also entails a repugnant conclusion and that

Table 7.7  Objections to Diminishing Marginal Value Theory Name

Content

Objections

Diminishing Marginal Value Theory

The value of a world is a function of its intrinsic-value units in a diminishing marginal value function. People’s lives have diminishing marginal intrinsic value. This diminishing value approaches a limit. The limit allows it to escape the repugnant conclusion: 1. In small populations, the valuation of life is similar to totalism. 2. In large populations, the valuation of life is similar to averagism.

Bearer. The bearer of intrinsic value is an individual’s life, not its life in relation to others. The diminishing marginal value theory denies this. Example: Doppelgangers. According to this theory, doppelgangers in two different worlds can contribute different amounts of intrinsic value if one world has more people with higher well-being than the other world. This is implausible. Sufficient Condition. If one population has a greater total and average well-being level than a second and it is more equal, then it always has more intrinsic value. This theory rejects this condition. Arbitrariness. The intrinsic value of the world should not depend on arbitrary values. Geometrism has arbitrary values in that there is no principled way to fill out the diminishing-value function. Nor is there a reason to rank people from best to worst off or vice versa.

Table 7.8  For Impersonal Morality (P1) (P2) (C1)

If PAM has very counterintuitive implications, then it is false. PAM has very counterintuitive implications. Hence, PAM is false.

Heaven and Hell. See Table 7.9. Repugnant Conclusion. See Table 7.10. Transitivity. See Table 7.11. (P1), (P2)

Table 7.9  Heaven and Hell Population (size)

Hell

Heaven

X (1 thousand) Y (1 billion) Z (1 billion)

10 (utils/life) −1,000

 9 10

Consequentialism and Abortion  163 Table 7.10  Repugnant Conclusion Population

World A

World B

X (100 people) Y (100 trillion people)

100 (utils/life)

101   1

Table 7.11  Transitivity World A X Y Z

10 (utils/life)  5

World B

World C  5

10  5

10

ranking worlds in value can be intransitive. To see these objections, consider the Table 7.10. World B is better than World A because at least one person is better off and no one is worse off. Yet B is a repugnant world because of the very large number of people whose lives are barely worth living. To see the problem PAM has with transitivity, consider Table 7.11. If PAM is true, then A is worse than B, B is worse than C, and C is worse than A. This is again because at least one person is better off when we move from the first to the second world and no one is worse off. Intransitivity is strongly counterintuitive. A third assumption underlying the main argument is that possibilism is true. Possibilism asserts that counterfactual individuals have moral value were they to exist. In other worlds, possible individuals matter in deciding what makes the world a better place and, if we assume consequentialism, in deciding what to do. Its competitor is actualism. This theory asserts that only actual individuals matter. Table 7.12 illustrates some of actualism’s problems.17 Here are Tables 7.13 through 7.17. If Epicureanism is false, then no matter which world a person creates, she harms someone and thus acts wrongly. Intuitively, the happiness of people in World B should affect which world a creator should bring about, but actualism cannot allow for this because the people in that world do not actually exist. In Table 7.15, the same conclusion is true with regard to actualism and its refusal to consider the status of Y-­people. In Table 7.16, we assume Epicureanism (we cannot compare the life of someone in the world in which he exists to one in which he does not). Given Epicureanism and actualism, World A is not a bad world, but it clearly is.

Table 7.12  For Possibilism Theory

Content

Without Epicureanism

Epicureanism

Strong Actualism

The goodness of a world depends on, and only on, individuals who exist in the actual world.

Deontic Contradiction. Actualism entails that there are possible scenarios in which all possible outcomes are wrong-making, but this is false. See Table 7.13. Deontic Status. Actualism entails that the deontic status of an act can’t affect what you do, but this is false. See Table 7.13. Not Actualist. Contra actualism, the status of an act in the world in which it occurs depends on how it affects merely possible people. See Table 7.14 and 7.15. Absurd. Example: Sadism. Actualism entails that in some possible world, the sadistic and genocidal actions of a Marxist dictator toward possible but nonactual victims are not wrong. See Table 7.15. 1. Dilemma. Is Epicureanism true? Horn 1: Yes. The problems of person-affecting morality apply. For example, there is nothing bad about creating miserable people who are uniquely realizable in the actual world. See Table 7.16. Horn 2: No. Absurd conclusion (better to avoid heaven) occurs. See Table 7.17.

See left 1–4

Actualism

See Horn 1.

Table 7.13  Negative Symmetry Act

World A

Create Jack Create Jill

−10 (utils/life)

World B −10

Consequentialism and Abortion  165 Table 7.14  Negative Asymmetry World A (actual) Create Jack Create Jane

World B

−10 (utils/life) 100

Table 7.15  Marxist Dictator Population

World A (actual)

World B

X Y

10 (utils/life)

11 −500 (tortured & killed)

Table 7.16  Very Bad World People

World A

Jack

−1,000

World B

Table 7.17  No Heaven Population

World A (actual)

World B (not actual)

X (10 people) Y (10 billion people)

10 utils per life   0 (not exist)

0 (not exist) ∞ utils per life

In Table 7.17, we reject Epicureanism. As a result, assuming consequentialism, actualism entails that it is good and right to create the A-­world even though the people in World B are doing so much better. Intuitively, God would consider these people in deciding what world to bring about. My conclusion from this section is that with regard to the good, totalism, impersonal morality, and possibilism are true. Because consequentialism asserts that the right maximizes the good, this is the good that a consequentialist wants maximized. Not killing fetuses results in more happy people coming into existence. That is, the mere addition principle entails the creation of happy people always makes the world a better place. In the U.S. today there is good reason to believe that the fetuses who are aborted would have developed into happy people. This is because most Americans are happy.18 The additional people who were not killed (assuming that early fetuses are identical to

166 Abortion Table 7.18  Abortion and Law (C1) (P3)

(C2)

Hence, on average, abortion is wrong. If, on average, abortion is wrong, then it should be illegal. Hence, abortion should be illegal.

(P1), (P2) Assumption 1: Maximization to Law. If a law would maximize the good, then the state should create and enforce it. Assumption 2: Maximization. A law prohibiting abortion would maximize the good. (C1), (P3)

adult individuals) would thus likely be happy people. Hence, they add to the total amount of goodness in the world. It is thus true that as a general matter, abortion makes the world worse. As a result, consequentialism entails that it is wrong. Given the sheer number of abortions (in the U.S., over a million a year), consequentialism entails that in the aggregate, abortion is wrong.

Part Three: Argument for Thesis 2 (Abortion Should Be Illegal) Consequentialism also supports abortion being illegal. Consider the argument in Table 7.18. The first assumption is a general assumption with regard to what ought to be the law were consequentialism true. This assumption has an odd feel to it. For example, it entails that the state should create and enforce a law that requires people to take happy pills, assuming that doing so maximizes the good. The second assumption rests on three sub-­assumptions. First, prohibiting abortion would significantly cut back its frequency.19 Second, cutting back the frequency of abortion would result in more individuals being created or, perhaps, not destroyed.20 Whether women refraining from aborting their fetuses leads to the creation of individuals rather than merely not destroying them depends on when individuals begin to exist. For instance, if an individual is an organism then she comes into existence earlier than if she is a conscious brain. Third, creating or not destroying more individuals would lead to more overall well-­being and thus more good.21

Part Four: Objections In the objections, I focus on Thesis 1 because the truth of Thesis 2 largely, although not entirely, rests on it.

Consequentialism and Abortion  167 Objection 1: Contraception and Rape The first objection is that the same reasons (with the same normative force) for abortion justify not using contraception and, in fact, legally prohibiting it. But the objector continues, consequentialism does not justify prohibiting contraception. Hence, my theory misunderstands conseqentialism. Worse, in my account, consequentialism justifies performing pregnancy-­ inducing rape and, in fact, legally permitting it.22 But if the theory were to do so, it would be a monstrous theory and thus an extremely implausible one. Hence, again, my theory misunderstands consequentialism. One response is that such acts and laws would make the world worse. For example, cycles of violence that would accompany legally permitted rape would be extremely costly in terms of lives ruined and destroyed. The resulting black market in violence prevention and retaliatory violence would also incredibly costly. The same is true for the black market in contraception. A second response is that if consequentialism justifies prohibiting contraception or permitting pregnancy-­inducing rape (or, at least, doing so in certain circumstances), then these policies are correct. Consequentialism is justified because it is rational, not because it satisfies our intuitions. Many of its positions are counterintuitive. Consider, for example, the requirement that people sacrifice themselves, not prioritize their loved ones, treat the past as irrelevant to justification, and treat killing and letting die as equivalent. Objection 2: Satisficing A second objection is that people do enough good when they have wanted, but not unwanted, children. Consequentialism requires that people bring about enough good (satisfice).23 The problem is that consequentialism does not require satisficing. Satisficing leaves good on the table and lacks a nonarbitrary amount that is the threshold for satisficing. In addition, it is unclear if legally permitting abortion (1.06 million per year) is satisficing.24 The slaughter of roughly one million newborn infants is not a satisficing policy. Such slaughter, arguably, has the same cost as an equal number of abortions. In the U.S., 59% of women obtaining abortions are mothers, and 30% of women will have an abortion by age forty-­five.25 Given that many of the women having abortions are mothers and know and have the means to raise a child, the cost of an additional child is, on average, not beyond the satisficing threshold. This is true even if the women’s lives would be somewhat worsened and the children would be raised in suboptimal conditions.

168 Abortion Objection 3: Cost-­Benefit Analysis A third objection is that abortion removes people who have negative externalities (for example, crime, welfare, and socialism).26 Consider the following findings: Women who have abortions are those most at risk to give birth to children who would engage in criminal activity. Teenagers, unmarried women, and the economically disadvantaged are all substantially more likely to seek abortions [Levine et al. 1996]. Recent studies have found children born to these mothers to be at higher risk for committing crime in adolescence [Comanor and Phillips 1999]. Our results suggest that an increase of 100 abortions per 1000 live births reduces a cohort’s crime by roughly 10 percent. Extrapolating our results out of sample to a counterfactual in which abortion remained illegal and the number of illegal abortions performed remained steady at the 1960s level, we estimate that (with average national effective abortion rates in 1997 for all three crimes ranging from between 142 and 252) crime was almost 15–25 percent lower in 1997 than it would have been absent legalized abortion.27 The objector further argues that the negative externalities outweigh the intrinsic value of the created (or not destroyed) individuals and their descendants. One response here is that the intrinsic value of people who would have been aborted outweighs their negative externalities. A typical life has an economic value to the subject of $7 to $10 million, and it is unlikely that the negative externalities would be so large.28 The average incarcerated criminal costs the state far less even if they are locked up for two decades or more.29 Nor is it likely that adding victim compensation to the cost of a criminal’s activity would exceed that figure. A second response is that people who would have been aborted have positive extrinsic value because of their reproductive contribution to the world. On average, they have greater than average fertility and reproduce at a lower age thereby speeding up the reproductive cycle. Both result in their creating more people than do average people. The intrinsic value of the created people makes the not-­aborted fetuses likely have significant extrinsic value. Objection 4: Averagism A fourth objection is that averagism is true and abortion, at least in the U.S., increases average well-­being. For example, on average, blacks have lower intensity of happiness and longevity and fewer objective-­list goods.30 In my account, the objective list goods are friends, knowledge, and virtue. Here are some useful indicators of these goods.

Consequentialism and Abortion  169 Friends (intensity × number) are approximated by marriage and divorce rates. Knowledge is approximated by IQ and level of education. Virtue is approximated by violent crime rate, welfare use, and infidelity. Blacks thus have below-­average well-­being, and they are aborted more frequently than are other fetuses. On an averagist account, then, this raises the average well-­being and, thus. makes the world better. One problem with this objection is that averagism, for the reasons mentioned above, is false. A second problem is that if blacks were once fetuses, killing them lowers their average lifetime well-­being and thereby makes the world worse. Third, in the U.S., Hispanics are a significant portion of the aborted fetuses and they have longevity and well-­being advantages over the average American. On the other hand, they have fewer objective-­list goods and are, on average, slightly less, deserving (see, for example, crime, divorce, infidelity, and welfare usage). It is unclear, then, whether the empirical claim is true with regard to the U.S. The same is true for the world. This is especially true if past people are part of the average. Objection 5: Person-­Affecting Morality A fifth objection is that individuals are brains, a brain is an essential part of them, or they are fully functioning (sentient) brains. Abortion usually kills individuals without fully developed brains and before they are sentient (feel pain).31 Because it is not wrong to refrain from creating individuals, abortion is not wrong. The problem with this is that this is just person-­affecting morality again. It assumes that it is not wrong to refrain from creating an individual because one outcome is better than a second only if it is better for someone In addition, if individuals were once fetuses (perhaps they were organisms), then abortion kills individuals. Table 7.19 provides a summary of the objections.

Table 7.19  Objections #

Type

Objection

1

Contraception and Rape

Analogy. The same reasons (with the same normative force) for abortion justifies not using contraception and performing pregnancy-inducing rape and prohibiting the former and permitting the latter. Wrong. Consequentialism does not justify prohibiting contraception and permitting pregnancy-inducing rape. (Continued)

170 Abortion Table 7.19  (Continued) #

Type

2

Satisficing

3

4 5

Objection

Enough. People do enough good when they have wanted, but not unwanted, children. Morality. Consequentialism requires that people bring about enough good. Negative Externalities. Abortion removes people who Externalities have negative externalities (consider, crime, welfare, and socialism). Weight. These individuals’ negative externalities outweigh their intrinsic value. Averagism Averagism. Averagism is true. Abortion Increases Average. Abortion (in the U.S.) increases average well-being. Person-Affecting Existence. Individuals are brains, a brain is an essential part Morality of them, or they are fully functioning (sentient) brains. Abortion and Existence. Abortion kills individuals without fully developed brains. Abortion and Sentience. Abortion kills individuals before they are sentient (feel pain). Person-Affecting Morality. It is not wrong to refrain from creating individuals.

Part Five: Conclusion In this chapter, I argued that consequentialism is true and that if consequentialism is true, then, on average, abortion is wrong. The second part of this rests on two assumptions. First, if consequentialism is true, then an act is right only if it maximizes or satisfices the totalist, impersonal, and possibilist good. Second, on average, abortion does not maximize or satisfice the totalist, impersonal, and possibilist good. I then argued that if, on average, abortion is wrong, then it should be illegal. This also rests on two assumptions. First, if a law would maximize the good, then the state should create and enforce it. Second, a law prohibiting abortion maximizes the good. The second assumption rests on the following: prohibiting abortion would significantly cut back its frequency, cutting back the frequency of abortion would result in more individuals being created or, perhaps, not destroyed, and creating or not destroying more individuals would lead to more overall well-­being and thus more good. I concluded by considering objections from contraception and pregnancy-­ inducing rape, satisficing, externalities, averagism, and person-­ affecting morality.32

Notes   1 See D. Jacqueline and D. O. Yancy, “Dilation and Curettage With Suction,” Medscape 2016, http://emedicine.medscape.com/article/1848296-­overview.

Consequentialism and Abortion  171   2 See ibid.   3 See table 22 at Karen Pazol, Andreea Creanga, and Denise Jamieson, Abortion Surveillance—United States, 2012,” Centers for Disease Control and Prevention, November 27, 2015, www.cdc.gov/mmwr/preview/mmwrhtml/ss6410a1. htm#tab22.   4 For the notion that people are not responsible at all, see Galen Strawson, “The Impossibility of Moral Responsibility,” Philosophical Studies 75 (1994): 5–24, Derk Pereboom, “Determinism Al Dente,” Nous 29 (1995): 21–45, and Stephen Kershnar, “Responsibility and Foundationalism,” Philosophia 43 (2015): 381–402.   5 See Stephen Kershnar, Total Collapse: The Case Against Morality and Moral Responsibility, forthcoming.   6 For the notion that abortion is justified by what justifies defense against rape, see Stephen Kershnar, “Fetuses are like Rapists: A Judith-­Jarvis-­Thomson-­Inspired Argument on Abortion,” Reason Papers 37 (2015): 88–109. For the classic argument that the right to one’s body justifies the right to abortion, see Judith Jarvis Thomson, “A Defense of Abortion,” Philosophy and Public Affairs 1 (1971): 47–66.   7 For the notion of a basic intrinsic-­value state, see Fred Feldman, “Basic Intrinsic Value,” Philosophical Studies 99 (2000): 319–346.   8 See Parfit 1984.   9 For different types of averagism, see Thomas Hurka, “Average Utilitarianisms,” Analysis, 42 (1982): 65–69 and Thomas Hurka, “More Average Utilitarianisms,” Analysis, 42 (1982): 115–119. 10 See Noah Lemos, Intrinsic Value: Concept and Warrant (New York: Cambridge University Press, 1994). Even if one allows higher-­order goods, so long as they are not lexically prior to lower order goods, the Repugnant Interpersonal Conclusion is true. 11 See B. Anglin, “The Repugnant Conclusion,” Canadian Journal of Philosophy 7 (1977): 745–754. 12 The objections to these theories are influenced by Derek Parfit, Reasons and Persons (New York: Oxford University Press, 1984), Thomas Hurka, “Average Utilitarianisms,” Analysis, 42 (1982): 65–69, Thomas Hurka, “More Average Utilitarianisms,” Analysis, 42 (1982): 115–119, Michael Huemer, “In Defence of Repugnance,” Mind, 117 (2008): 899–933, Gustaf Arrhenius, “An Impossibility Theorem for Welfarist Axiology”, Economics and Philosophy 16 (2000): 247–266, Larry Temkin, Inequality, New York: Oxford University Press, 1993), and Duncan Purves and Stephen Kershnar, “A New Argument for the Irrelevance of Equality for Intrinsic Value” Philosophia 45 (2017): 277–297. 13 See Thomas Hurka, T., 1983, “Value and Population Size,” Ethics, 93 (1983): 496–507, Yew-­Kwang Ng, “What Should We Do About Future Generations? Impossibility of Parfit's Theory X”, Economics and Philosophy, 5 (1989): 135– 253, and Ted Sider, “Might Theory X be a Theory of Diminishing Marginal Value?” Analysis 51 (1991): 265–71. 14 See Arrhenius, “An Impossibility Theorem for Welfarist Axiology”, 247–266. 15 See Gustaf Arrhenius, Gustaf. “The Person-­Affecting Restriction, Comparativism, and the Moral Status of Potential People,” Ethical Perspectives 10 (2003): 185–195. 16 The idea for these objections come from Caspar Hare, “Voices from Another World: Must We Respect the Interests of People Who Do Not, and Will Never, Exist,” Ethics 117 (2007): 498–523. 17 One might think that actualism allows that goodness is indexed to a possible world because actual is so indexed. This, however, is a type of possibilism in that it asserts that possible people count toward the good, albeit only in the world in which they exist.

172 Abortion 18 See John Helliwell, Richard Layard and Jeffrey Sachs, World Happiness Report 2016 Update (New York: The Earth Institute of Columbia University, 2016), https://web.archive.org/web/20160317224417/http://worldhappiness.report/ ed/2016/. 19 Legalizing abortion in the U.S. significantly increased its frequency. See Willard Cates, David Grimes, and Kenneth Schulz, “The Public Health Impact of legal Abortion: 30 Years Later,” Perspectives on Sexual and Reproductive Health 35 (2004): 25–28, www.guttmacher.org/about/journals/psrh/2004/01/public-­ health-­impact-­legal-­abortion-­30-­years-­later. This is some reason to believe that criminalizing it would decrease its frequency. 20 It is possible that legalizing abortion might cause more individuals to be created. I am unaware of any studies that show this to be the case. 21 The good might instead be desert-­adjusted well-­being. See Fred Feldman, “Adjusting Utility for Justice: A Consequentialist Reply to the Objection from Justice,” Philosophy and Phenomenological Research 55 (1995): 567–585, Shelly Kagan, “Equality and Desert,” in Louis P. Pojman and Owen McLeod, eds., What Do We Deserve? New York: Oxford University Press (1999), 6–31, and Thomas Hurka, Virtue, Value, and Vice. New York: Oxford University Press (2001). This will complicate matters as it is unclear whether the individuals who would otherwise have been aborted have very positive desert. There is some reason to believe they would not as they likely grow up with lower IQs and from lower socioeconomic strata, factors that on average correlate with less knowledge, less virtue (perhaps seen in one or more of the following: criminality, divorce, and welfare use), and fewer meaningful friends. See Richard Herrnstein and Charles Murray, The Bell Curve (New York: Free Press, 1994). 22 Nationally, 5% of rapes produce pregnancy. See M. M. Holmes et al., “Rape-­ related Pregnancy: Estimates and Descriptive Characteristics From a National Sample of Women,” American Journal of Obstetrics & Gynecology 175:2 (August 1996):320–324, www.ncbi.nlm.nih.gov/pubmed/8765248 23 See Michael Slote, “Satisficing Consequentialism I,” Proceedings of the Aristotelian Society, Supplementary Volumes, Vol. 58 (1984): 139–163. 24 The 1.06 million abortions in 2011 comes from Guttmacher Institute, “United States Abortion,” www.guttmacher.org/united-­states/abortion. 25 See ibid. 26 See John Donohue and Steven Levitt, “The Impact of Legalised Abortion on Crime,”  Quarterly Journal of Economics 116 (2001): 379–420. First, women who have abortions are those most at risk to give birth to children who would engage in criminal activity. Teenagers, unmarried women, and the economically disadvantaged are all substantially more likely to seek abortions. See P. B. Levine, D. Staiger, T. J. Kane, and D. J. Zimmerman, “Roe v. Wade and American Fertility,” American Journal of Public Health 89 (1999): 199–203. Recent studies have found children born to these mothers to be at higher risk for committing crime in adolescence. See William Comanor and Llad Phillips, “The Impact of Income and Family Structure on Delinquency,” Journal of Applied Economics 5 (2002): 209–232.Early-­life circumstances of those children on the margin of abortion are difficult along many dimensions: infant mortality, growing up in a single-­parent family, and experiencing poverty. See Jonathan Gruber, Phillip Levine, and Douglas Staiger, “Abortion Legalization and Child Living Circumstances: Who Is the ‘Marginal Child?’” Quarterly Journal of Economics 114 (1999), 263–291. Second, women may use abortion to optimize the timing of childbearing. A given woman’s ability to provide a nurturing environment to a child can fluctuate over time depending on the woman’s age, education, and income, as well

Consequentialism and Abortion  173 as the presence of a father in the child’s life, whether the pregnancy is wanted, and any drug or alcohol abuse both in utero and after the birth. Consequently, legalized abortion provides a woman the opportunity to delay childbearing if the current conditions are suboptimal. Even if lifetime fertility remains constant for all women, children are born into better environments, and future criminality is likely to be reduced. 27 See John Donahue III and Steven Levitt, “The Impact of Legalized Abortion on Crime,” The Quarterly Journal of Economics 2 (2001): 379–420. 28 See W. Kip Viscusi and Joseph Aldy, “The Value of a Statistical Life: A Critical Review of Market Estimates Throughout the World,” Journal of Risk and Uncertainty 27 (2003): 5–76. 29 See Kelsy Warner, “These States Have the Highest Cost Per Prisoner,” issues.insidegov.com/stories/13011/ Graphiq, April 28, 2016, http://political-­ states-­highest-­cost-­per-­prisoner. 30 See Guttmacher Institute, “United States Abortion.” 31 In the second trimester, the brain has all of its major brain structures. See April Sanders, “Baby Brain Development in the Womb,” Modern Mom 2017, https:// www.modernmom.com/9da32444-­3 b45-­1 1e3-­8 407-­b c764e04a41e.html. 91% of abortions occur in the first thirteen weeks. See Guttmacher Institute, “Induced Abortion in the United States,” Guttmacher Institute, January 2017, www.guttmacher.org/sites/default/files/factsheet/fb_induced_abortion.pdf. For the claim about sentience, see Royal College of Obstetricians and Gynecologists, Fetal Awareness: Review of Research and Recommendations for Practice (London: Royal College of Obstetricians and Gynaecologists, 2010), https://www. rcog.org.uk/globalassets/documents/guidelines/rcogfetalawarenesswpr0610.pdf. More than 90% of abortions occur in the first 13 weeks (roughly, the first trimester), see Table 20, Pazol, Creanga, and Jamieson, “Abortion Surveillance— United States, 2012.” 32 I am grateful to Harvey Berman, David Boonin, Geert Craenen, Jim Delaney, Neil Feit, David Hershenov, Rose Hershenov, Bob Kelly, David Limbaugh, Phil Reed, Barry Smith, and Catherine Sweeney and participants in the PANTC conference for their extremely helpful comments and criticisms.

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Index

Note: Page numbers in bold indicate a table. abortion: abortion pill 125–6, 128, 154; abortion-related benefit 55; abortionrelated cost 94; clinic, violence against 6–7, 11, 85–6, 95–6; dilation and curettage 125–6; dilation and extraction 125; partial-birth abortion 125; pro-choice 2–3, 90, 106; suction curettage 136, 154 abortion-doctor: compared to Nazi 6, 86–9, 93–6, 105; partial excuse 93–4, 97; partial justification 92–3, 112–13 actualism 163–5 Adams, Marilyn McCord 45 annihilation 18, 22, 36–8, 44, 46, 49, 55–7 Aquinas, Thomas 2 Aryan Brotherhood 4, 30, 48, 96 assassination 7, 11, 86, 87, 94, 97, 98, 10; epistemic argument 98–100 Augustine 2 averagism 157–8, 168, 170; against averagism 159, 161, 169 Beckwith, Francis 138 Beneficent-Character Principle 22, 36 Bible and abortion: King James 18, 57; New Testament 1, 19, 57; Old Testament 1 body right 75, 85, 91, 105–9, 112, 123, 129–30, 134–7, 140–1 Catholicism 1–2, 34; Catholic Church 2, 4, 7, 44, 57–8, 90; National Conference of Catholic Bishops 2; Pope Benedict 4, 58; Vatican 58 character 10, 17, 24–5, 26, 38, 46–7; goodness of 25

Christianity 1, 4, 9–10, 43; Mormon 2, 4, 19, 57; Pentecostal 2; Protestantism 2–4, 18, 57; Southern Baptist 2; Threshold-Hell (see threshold deontology) consent 12, 28, 48, 68–9, 72–3; consent theory 72, 77, 110, 113; government and 76–8, 155; right to withdraw 128–31; right waived by 75, 76, 106 consequentialist override 22–3, 53, 56, 72, 75, 85, 108, 112–13, 140, 154 Constitution, United States of America 2, 100, 155 contraception 8, 100, 128–9, 144–5, 167, 169, 170 cost-benefit analysis 168 Craig, William Lane 23–4 defense: disproportionate 47, 136, 146; just 69–70, 96–7, 105–6, 115, 136–7; lethal force 6, 11–12, 86, 88–9, 90, 91–4, 97, 100, 108–9, 131, 133, 135–6; lethal force objection 94, 96, 97; of others 5, 87; self-defense 5, 69–71, 74–6, 91–2, 96–7, 105, 107, 109, 126–7 diminishing marginal value theory 158, 160–2 divine command theory 50 doctrine of double effect 9, 58–9, 87, 92, 94, 97, 98, 153 duty to save 12, 124, 141–4, 146, 147 Egyptology 35, 159 epicureanism 161, 163–5 Estlund, David 99

190 Index excuse 70–1; from punishment 20 externalities 168, 170 fetus: go to heaven 5, 10, 33–5, 43, 45–8, 51–61, 95, 97; guaranteeing heaven 4, 10, 33–5, 45–8, 54–6, 59; unconsented 12, 131, 135, 146 Fonda, Henry case of 124–5, 140 God: and gift of life 50; and hell 9–10, 17–24, 43–7, 56–8; and punishment 26, 28–38 Guttmacher Institute 2–3 heaven 4–5, 22–3, 26, 36, 37, 44; different levels of 18 hell: argument against 45; escapism 10, 18, 36, 37, 44–5, 57, 59; hell is a good place 18, 37, 57; infinite negative well-being thesis 17–18, 22, 36, 44; no escape thesis 17–18, 31, 36, 37; some inhabitants thesis 17–18, 36, 37; universalism 18, 36, 37, 44, 45, 57, 59 Himma, Kenneth 50, 52 impersonal morality 161, 162, 165, 170 innocent threat 91–2, 106, 115, 137–8 Judaism 3 justice 17, 19–24, 38, 43, 124, 129, 131, 134–40; compensatory 72, 108, 111 Kant, Immanuel 51, 60, 87, 98, 142 legality principle 49 Lewis, C. S. 45, 57 mere addition paradox 35 mifepristone see abortion, abortion pill Murphy, Mark C. 50 National Abortion Federation 85 Nazi choice case 131–4 Nozick, Robert 51, 60, 87 objective-list goods 80, 95, 168–9 Operation Rescue 44 pacifism 94 person-affecting morality 161, 164, 169, 170

possibilism 163, 164, 165 pregnancy, unconsented to 12, 131–5, 143, 146 problem of symmetrical attackers 110–16 pro-life violence 1, 5–11, 86–94, 96–7, 100–1 proportionality 11, 19–20, 68, 70, 96–7, 107–8, 112 psychotic aggressor 71, 91–3, 107, 112, 136–7 punishment 9–10, 17, 68, 75–6, 107, 113, 130, 136, 139; act-based 31; character-based 24–5; infinite 9, 10, 21, 24–7, 30–1, 36, 38; just 19–20, 22, 69, 97 rape 2, 8, 12, 67–8, 126, 128, 129–37, 146; contraception and 167, 169–70 repugnant conclusion 156–8, 159, 161, 162–3 right 75; benefit theory 115–16; blamebased theory of forfeiture 112; content 75, 105–6, 130, 133, 138; narrow content 105–6; narrow scope 69, 72, 105–6, 110–13; objections to forfeiture theory 108–10; override 32, 69, 75, 105–6, 112–13, 129, 134, 138; and risk 68, 75, 109 risk 92, 97, 107, 109, 113, 139 Roeder, Scott 6, 86 Roper Center for Public Opinion Research 3 rule consequentialism 115–16 satisficing 12, 87, 156, 167, 170 Shue, Henry 76 Simmons, A. John 77 Slepian, Barnett 6, 86 Swinburne, Richard 34, 57 Thomson, Judith Jarvis 123, 143 threat, unjust 68, 75, 85, 97, 106, 108, 110–12, 116, 129 threshold deontology 43, 48, 52, 57–8, 72, 108, 155; Threshold-Hell Christianity 43–6, 52, 54, 57, 59 totalism 156–7, 159, 161, 162, 165 trespass on woman’s body 12, 92, 108, 126, 129, 131, 134–6, 146 value: infinite 23, 35, 53; intrinsic 60, 156–8, 159, 160–1, 162

Index  191 violinist 126–7, 128 virtue 33, 35, 71, 74, 80, 98, 168–9; virtue-state 25; virtue theory 113 Walzer, Michael 76 well-being 12, 18, 24, 26–7, 35, 47, 55–6, 76, 78, 162, 166–9; aggregrate

155–7; averagism 170; desertadjusted 60; epicureanism 161; infinite negative 17, 22, 36, 37, 144 Zohar, Noam 76 Zyklon B case 6, 86, 87, 94, 96