Friday, 25 September 2020

Why We Can Never Have the Moral Right to Punish (2020)

From The Philosopher, Volume CVIII No. 2 Autumn 2020
 

      Why We Can Never Have the Moral Right to Punish

By Seth Stancroff



It is an alarming and unfortunate reality that most modern states and societies seem to lack the moral right to punish. Cash bail, bias against people of color and of socioeconomic disadvantage, and excessive uses of force in policing are only a few examples of the practices and institutions that I would argue make the practice of punishment morally unjustifiable in the real world.

What may be more disturbing from a philosophical perspective, however, is that it seems that no society can ever have the moral right to punish. This is because the changes and systemic reforms that would be required to make punishment truly justifiable are impossible—even theoretically—to carry out.

Punishment is a social institution, the origins of which can be traced to the dawn of history. Anthropologists consider it a common denominator in all cultures in the ethnographic literature. Punishments have taken—and still take—a variety of forms, including death, exile, imprisonment, physical tortures, and financial penalties. Although the specific practices have varied greatly in different cultures and time periods (for example, the prevalence of the death penalty has varied substantially over time and in different countries), the significance of punishment as an institution in societies has not diminished.

For philosophers, finding a moral justification for legal penalties—especially those that are most severe—is of great importance. Theories have been crafted to support the claim that states really can have the moral authority to punish. One example is retribution, or the ‘eye for an eye’ principle, which is all about ‘payback’ and revenge. This view can be traced back to the first century BCE, and it promises that even a harsh and awful punishment is justifiable because by this very harshness it rights moral wrongs, and restores the moral balance that is disturbed when an immoral act is committed.

Along somewhat similar lines, the deterrence theory—made popular by Cesare Beccaria and Jeremy Bentham in the eighteenth century—suggests that punishment is appropriate when it is designed specifically to prevent future crime from being committed, while the theory of rehabilitation (established in legal practice in the nineteenth century) argues that the only just punishments are those that help offenders undergo some internal moral reform. While retribution, deterrence, and rehabilitation are only three of the many theories, they are representative of the debates about justifications of punishment that have gone on for centuries, with new views being proposed and older theories being revised.

Yet I would argue that the theories advanced, despite offering elaborate and in many respects convincing justifications of punishment, suffer from the same fatal flaw: they are constructed without regard for the nature of the world to which they are supposed to apply. That is, they rely upon assumptions that ultimately render them inapplicable to modern societies. 
 
Inevitably, in philosophical theorising, those arguing for different conceptions of just punishment make assumptions about the nature of the world and humankind. Although these assumptions are usually made to simplify and tighten the arguments they support, they can steer those same arguments into trouble. One lurking assumption on which these philosophers rely, is that individuals are all protected equally by the laws that govern them. They assume that laws are enforced equally, proportionally and dispassionately, and that people are afforded similar freedoms by these laws and would be punished equally should they break them.

Of course, this view does not reflect the real state of things. In most modern societies, punishments may be heavily influenced by factors such as the race and socioeconomic status of the offender. Black men are more than twice as likely as white men to be killed by police in the United States, American Indian youth are three times more likely than white youth to be held in juvenile detention, and more than half a million people in the United States are currently being held pre-trial simply because they cannot afford to post bail.

Because of the influence of race and class on criminal justice, identical punishments may have drastically different effects on those to whom they are given. After all, a $10,000 fine is a drop in the bucket for a millionaire, but might result in financial collapse for a single, working-class parent. Moreover, practices such as cash bail, which requires that people pay (sometimes substantial) sums of money to free themselves from jail before they can be tried for their crimes, inherently favour the wealthy. Having to raise bail also imposes some form of punishment on people who have not been convicted of crimes and may well be innocent. And of course, the reality that wealthier individuals in many modern societies have the option to hire expensive lawyers and legal teams to help them avoid punishment is a privilege to which few have access, and can result in dramatic reductions in punishments.

One example of this is Ethan Couch, a wealthy 16-year-old from Texas, who killed four people in a drunk driving accident in 2013 and yet was sentenced to a mere 10 years of probation because his expensive defense attorneys argued that due to his wealth, he could not understand the consequences of his actions. Another example is 16-year-old Orachorn Thephasadin Na Ayudhya, who, in 2010, killed nine people in another accident, this time one that involved her texting and driving without a license. She was sentenced to a mere 138 hours of community service because of the defense lawyers her powerful and wealthy family were able to hire. Systems such as cash bail, as well as these examples of wealthy people using their resources to avoid punishment for heinous crimes, demonstrate the ways in which modern societies do not have systems of punishment that protect all people equally.

However, another factor that tends to undermine conventional assumptions has not to do with the punishments that are imposed after offenders are brought into criminal justice systems, but instead arises earlier in the sequence of events, with different approaches to law enforcement. The recent Black Lives Matter demonstrations, which have protested police brutality against people of colour, reveal the extent to which it is commonplace in many modern societies for laws to be enforced unequally and disproportionately, along racial, ethnic, and class-based lines.

Law enforcement officials too often act in ways that betray bias and prejudice, and indeed, some of the tactics used by law enforcement agencies around the world are punishments in themselves. In the United States, police officers routinely make headlines for excessive uses of force that result in serious injury—and even death—on individuals who have not been convicted of crimes and are typically ethnic and racial minorities. For example, Elijah McClain—a 23-year-old Black man—died in August of 2019 after police in Colorado put him in a chokehold (a practice now banned in many police departments). In a similar case in July of 2014, Eric Garner, also Black, was killed by New York City police officers when they suffocated him, again in a chokehold. Another Black man, George Floyd, was killed in May of 2020 by police in Minnesota when an officer placed his knee on the back of Floyd’s neck and held it there for nearly nine minutes. These incidents (which are only a few examples of many) demonstrate the ways in which policing can itself become a form of punishment—one that has no regard for legal proceedings or due process and that disproportionately affects racial and ethnic minorities.

At the same time, another assumption to which the various theories of punishment subscribe is that the negative effects of criminal penalties can be confined to the offenders towards whom they are aimed and also that they are limited to the time in which the punishment itself occurs. It is assumed that when people are punished, only those who are meant to be punished are harmed. And likewise that the punishments last only as long as they are meant to, and that when the period of punishment is over, everything goes back to the way it was before the penalty occurred.

In reality, though, punishments are neither confined to the people on whom they are inflicted nor the time periods in which they are carried out. Punishments in modern societies—and even the smallest ones at that—can have lasting negative effects and can affect more than just the offender toward whom they are targeted. As the legal philosopher Zachary Hoskins puts it, in an article entitled ‘Ex-offender Restrictions’ for the Journal of Apllied Philosophy: “Individuals convicted of crimes are often subject to numerous restrictions—on housing, employment, the vote, public assistance, and other goods—well after they have completed their sentences, and in some cases permanently.” 
 
Numerous policies exist in parts of North America and Europe that restrict former offenders’ abilities to find jobs, borrow money from banks (even for student loans), and hold public office. In forty-eight U.S. States, convicted felons lose the right to vote while incarcerated, and many companies around the world have adopted policies that prevent the hiring of criminal offenders, even if they have fully served their sentences. Furthermore, these policies, as well as the social stigma associated with criminal punishment, generally cause harm to the families and communities of ex-offenders by limiting individuals’ economic opportunities. Overall, punishments can follow people their whole lives, even after they have ‘paid their debts to society’.

It is clear to see that philosophers’ assumptions about punishment do not play out in reality, and that laws—and the punitive measures taken against those who break them—do not protect all people in a society equally. Because of this, it may be worth thinking about the kinds of reformative policies that would be required (and the barriers that would have to be overcome) to create a society that satisfies that philosophers’ assumptions. It would be in this kind of society that there could presumably be systems of punishment that are indeed just.

The first of these reforms has to do with the policies surrounding economic inequality and individuals’ access to resources and opportunity. After all, much of what causes punishment to be morally unjustifiable is the extent to which people are unequally protected by the law due to socioeconomic disparities. It seems that for punishment to truly be morally justified, societies would have to be designed in such a way that the people living in them would have equal access to resources and opportunities, as this would be perhaps the best way to ensure that crime and punishment would not be influenced by the resources to which a defendant has access.

Philosophers refer to the egalitarian principle that would have to be employed to achieve this kind of equality in society as distributive justice. This principle requires that goods and resources be distributed among members of a society to eliminate unjust inequality. However, although it may sound promising, distributive justice is often seen as restricting of individuals’ rights to property, and is as a result rather politically unpalatable. Moreover, these principles of distributive justice come with their own set of challenges. Even if it were decided that there should indeed be some kind of redistribution of goods or resources, there is little agreement about what should be distributed and how that distribution should take place. Some political philosophers, such as Ronald Dworkin, argue that there should be an “envy free” distribution of resources to achieve equality. Others, such as Richard Arneson, suggest that distribution should aim at “equality of opportunity.”

The result is that although it is certainly tempting to say that distributive justice could solve the social ills that render criminal punishment morally unjustifiable, the reality remains that any attempt at egalitarian distribution would encounter serious social and political opposition, not to mention the challenges of implementation and execution.

An additional barrier standing in the way of just punishment has to do with yet another assumption on which philosophers rely in arguing for their justifications of punishment, which is that people are generally rational, have similar intellectual capabilities, and are mentally competent. Indeed, this is an important component of most punishment theories because for punishment to be formally justified, it must be inflicted on a person who understands the crime she or he has committed, and she or he must have committed it with some rational intent.

It should go without saying that this assumption in no way reflects the real state of things. Millions of individuals suffer from mental illnesses such as anxiety, depression, schizophrenia, and post-traumatic stress disorder, among countless others. These can vary in severity from mild to debilitating, and can often influence peoples’ ‘rational’ capacities. Others are born with intellectual disabilities and disorders such as autism and Down’s syndrome. All of these factors can influence individuals’ decision-making processes and can indeed lead them to commit crimes when they otherwise would not have.

A first response to this challenge might be that justice systems are able to correct for criminals’ intellectual capabilites in assigning punishments; indeed, many courts claim to have adopted this practice. In reality, however, attempts by systems of punishment to account for offenders’ mental capacities have been abysmal. In fact, in the first two decades of the twenty-first century, more than twenty-two mentally ill criminal convicts have been executed in the United States, despite their having been diagnosed by mental health professionals. Moreover, more than 50% of inmates in jails and prisons in the United States have been diagnosed with mental illness, with roughly 20% having severe cases. By comparison only 4% of adults in the United States experience severe mental illness in any given year. It has also been shown that roughly 20% of inmates in jails and prisons experience severe psychological distress while incarcerated, compared to only 5% of the general population. All this demonstrates that criminal justice systems are neither adequately trained on how to take mental illness into account when sentencing, nor prepared to include in punishments measures aimed at treating offenders who may suffer in this capacity.

There is a larger issue here, and it is that there is no consensus in the academic community about what “rationality” truly is. Psychologists’ explanations differ from those of neuroscientists, whose differ from those of philosophers. And of course, there is considerable disagreement about the issue even within these fields. Recently, legal theorists such as Stephen Morse, William Hirstein, and Katrina Sifferd have warned against the urge to incorporate brain science into criminal proceedings due to the uncertainty that surrounds it. Hirstein and Sifferd argue that “prefrontal executive processes”—cognitive functions about which much is still unknown—are given excessive weight when considering issues such as criminals’ awareness of facts of their cases (such as whether a gun was loaded), and also for juvenile offenders, such as seventeen-year-olds who are on trial for murder. The fact of the matter is that even if there existed a reliable, scientifically-informed “standard of rationality” to which criminal offenders could be held, there would be tremendous difficulty in determining whether any given individual meets the standard.

It should also be noted that when it comes to the rational and psychological barriers that stand in the way of morally justifiable punishment, the issues do not only pertain to offenders. Those who write and enforce the laws are subject to rational limitations that impair the ability for any system of criminal justice to punish in a way that is truly just. These limitations take the form of biases, which are psychological processes deeply rooted in humans that provide us with mental shortcuts and allow us to process large amounts of information in a remarkably complex world. For example, we are predisposed to favor others who resemble us or remind us of ourselves, we tend to dislike people in social and political “outgroups,” and we usually only seek out information that confirms or supports our previously held views and beliefs. Bias is a psychological mechanism from which no human can truly “escape,” and while some of these biases are not necessarily “bad” in themselves (they may indeed have provided us with evolutionary advantages over millennia), they make it very hard to evaluate others “objectively,” as it were.

And so I arrive at the unfortunate conclusion that not only can punishment not be justified in the real world today, but it will never be possible to justify completely either. This is because the challenges surrounding equality and distributive justice, while theoretically surmountable, present a large issue with which any society would have to grapple to bring about just punishment. Rational and psychological barriers, on the other hand, are an obstacle that it is categorically impossible to conquer.

So what do we do now? One route might be simply to view true moral justification as a standard to which we should not hold ourselves, and to consider punishment a necessary evil that we must tolerate in order to maintain functioning societies.
 
However, although such a stance may be realistic as things currently stand, I prefer a more optimistic strategy. I propose that we use the classical philosophical justifications of punishment, and all the assumptions that accompany them, as guiding lights. That is, we should use the theories not in an attempt to morally justify punishment, but instead to inform the policies we implement and decisions we make surrounding punishments in the world in which we live. For example, we might try to limit the extent to which punishments follow those who have paid their dues, and we might eliminate practices that inherently favor wealthy offenders, such as cash bail and privatised criminal defense. The aim would be to use pragmatic, realistic policy mechanisms to reduce the impact of societal inequalities in order that people may benefit more equally from the protection of the law.

This approach would also require unbiased and proportional enforcement of the laws, as well as humane policing practices that are not in themselves punishments. And of course, punishment systems would have to eliminate mechanisms that confer advantages to those in positions of privilege and take steps to limit the negative impact of punishment on offenders who have paid their dues. Because, even if it may be impossible for us to live in a world in which punishment is truly morally justified, it is surely possible, and increasingly necessary, to get much closer to this ideal.
 

 
 
About the author

Seth Stancroff studies and writes on various issues in legal and political philosophy. He is particularly interested in examining the material and empirical implications of classical philosophical theories, notably those pertaining to criminal punishment.

He can be reached at stancroff99@gmail.com

Sunday, 6 September 2020

Thought Experiments and the Ethics of Abortion (2020)

From The Philosopher, Volume CVIII No. 2 Autumn 2020

      Thought Experiments and the Ethics of Abortion

By Keith Tidman



It is almost fifty years now since American moral philosopher, Judith Jarvis Thomson, published her signature argument in favour of abortion rights, pointedly titled ‘A Defense of Abortion’. In what was very much a novelty for the time, she depended heavily, though not exclusively, on thought experiments, building her argument around them to favour her unambiguous position on this complex subject. Yet, can something as consequential as the ethics of abortion hinge so largely on conclusions drawn from imaginary scenarios? In this essay, I focus on examining the merits of her approach in the context of one of practical philosophys most bitterly contested topics while also hoping to shed some light on her particular arguments.

Thought experiments are essentially short stories, works of fiction, in which experimenters are free to set the starting conditions and tweak the parameters before stepping back and observing events. It has sometimes been objected that in so doing the technique encourages people to assume the outcome at the outset. However, thought experiments depend more on logical coherence to advance their case, than the practical feasibility or plausibility of the experiments’ scenarios, which are seen as immaterial. This seems the case with Thomson’s thought experiments, a feature of thought experiments that some people judge as a weakness, whereas others view it a strength.

With Thomson’s central thought experiments, we should note one ostensible concession that she begins with — on a central issue. This is to grant opponents of abortion that human life starts at the moment of conception and seamlessly develops toward being first an infant and then a toddler, teen, and adult. This new life transitions from being a human, in foetal form, in the womb to being a baby born into the world. However, Thomson makes this concession with hesitancy, and with a curious twist she springs on readers at the end of her ‘defense of abortion’, which I’ll get to shortly.

Thomson first, briefly, suggests that a human being at conception is equivalent to an acorn. Her point is that an acorn is no more an oak tree than the foetus is a human. Thought experiments are all about assumed equivalencies, and although surely this one is offered largely unsupported and perhaps too soon in Thomson’s paper, I suggest that this challengeable analogy is the first of several misleading equivalencies she makes. 


Thomson does seem prepared to acknowledge, however, that it is impossible to draw an arbitrary line between when a collection of cells in the womb is not a person and when it suddenly, seemingly overnight, is. What one might regard as an arbitrary point of transition from not-human to human, made for the convenience of laws, which often require reducing matters to such lines in the sand. But, unsurprisingly, might not that line keep shifting according to what we scientifically understand to be sufficient to call something a human or person, thereby underscoring all the more the arbitrariness and randomness of such decisions?

In her desire to move beyond these problems, and get to the heart of her case, Thomson writes, ‘I’m inclined to think also that we shall probably have to agree that the foetus has become a human person well before birth’. The comment reveals that Thomson appears literal when her famous thought experiment explicitly compares the right to life of the foetus to that of a full-grown human being.



At the same time, given this, Thomson’s seeming afterthought that she was only ‘pretending’ that the foetus is a human being at conception may strike one as disingenuous, when it appears in off-putting fashion in the concluding two sentences of her article. Some object that the admission undermines the soundness and continuity of her original hypotheses, pinned on her earlier human-at-conception precept. Yet, the strategy could be argued to make sense in terms of clarifying one aspect of an issue. To use the language of experiments generally, Thomson eliminates one ‘variable’ so as to test another. And so, Thomson continues that ‘for the sake of argument, we allow the premise … that the foetus is a person at the moment of conception’. She offers this sizable concession to the right-to-life movement in order to move on and put to the test whether abortion is morally permissible even given the concession.

Thomson then addresses the core issue whether, given a general assumption granted to every human, of a right to life, an unborn baby in the womb must have that right, too. This is the point at which she introduces her first, and most famous, ‘violinist’ thought experiment. Thomson asks us to imagine a scenario where someone — she suggests ‘you’, the reader — wakes up to find herself in a hospital bed having, involuntarily and unknowingly, been medically hooked up in the night to a famous violinist. A situation, she says for playful effect, arranged by ‘The Society of Music Lovers’ who have ‘kidnapped’ you. The violinist’s life now depends on your kidneys cleaning the violinist’s blood of toxins. And that if the doctors were to unplug you, it would result in the violinist’s death. You’re asked, therefore, to stay attached for nine months, after which time the violinist will have become cured.

However, further important distinctions are buried in this curious scene. First is the violation of all semblance of responsible social, medical, and ethical protocols in the woman being attached, in this manner, to the violinist. Without any say-so. And the second distinction is between the notions of ‘killing’ and ‘letting die’. The woman, by opting to be unplugged, is letting the violinist die from what would amount to natural causes (diseased kidneys); she is not killing him in the active sense of, say, shooting him in the head or suffocating him with a pillow. This is an important, everyday distinction in matters of law. However, in my view, when Thomson asserts that ‘in unplugging yourself, you are killing’, she conflates killing and letting die. For opponents of abortion, terminations of pregnancies are a different kind of act from passively ‘letting die’ described in the scenario.

To build on her point, Thomson equates the woman’s involuntary tethering to the violinist as resembling a woman having become pregnant as a result of rape. Yet, even in these circumstances some people maintain that the foetus still has a special status, living as it is in the woman’s uterus. They contend that even in the case of rape, there’s a uniquely biological, mother–feotus relationship that must be factored in for ethical reasons. Thomson, however, goes on to declare unequivocally that ‘unborn persons whose existence is due to rape have no right to the use of their mothers’ bodies, and thus that aborting them is not depriving them of anything they have a right to’. But do we have to accept the reasoning, and how does the imaginary example of the violinist support Thomson’s argument?

One might argue, to the contrary, that the woman and human foetus share an unusually mutual bond, resulting in the foetus having a unique status in the woman’s life that no tethered violinist, no matter how brilliant a musician he or she might be, has any realistic hope of matching. In that vein, the woman has an extraordinary responsibility toward what Thomson refers to, in no uncertain terms, as ‘the unborn person’. As such, the human foetus perhaps has a special claim to the mother’s support, whereas the violinist, a stranger, doesn’t. What’s telling is Thomson’s use of the word ‘mother’ in her discussion here, with that word’s layered connotation and emotion. Usage that differs markedly from the neutral word ‘woman’, which one may use more typically to convey gender identification.

At the heart of this discussion are questions about how much sovereignty a person has over one’s body. The common claim by people who favour the right to choose is that women have the unbridled right to decide matters affecting their own bodies, and that such matters include decisions about aborting an unwanted foetus. That is, if a woman has autonomy in ‘deciding what happened’ to her body in the case of abortion rights, does that sovereignty over her body have any limits — limits that society might otherwise impose not just on women but men, too? And if there are limits as to what’s permissible, who or what spells out the constraints, and on what ethical, sociological, religious, or other grounds?

To return to the violinist example, if the woman did sacrifice months of her life to his support, might he, in the name of sovereignty over his body, take up the option to unplug himself? We would allow that, and yet we might consider the woman to have been unreasonably exploited, her having been denied a ‘say’ in his decision.

The situation changes when Thomson introduces the case of a woman’s life that (for some unspecified medical reason) is at high risk, and whether she ought carry her baby to term. At this point, the calculus changes, in that both the woman and the foetus have equal value as human. Or, as Thomson better puts it, ‘Both are innocent’, whereby consequentially neither the mother nor the human foetus has a ‘weightier’ right to life than the other.

The right to life that I mention above leads to one of Thomson’s other thought experiments. She presumes that the right to life ‘includes a right to be given the bare minimum one needs for continued life’. She proceeds by introducing the exception that ‘the bare minimum’ may be something the person actually has no right to be given. Thomson’s colourful, if implausible and peculiar, example is that in order to save her life, she needs ‘the touch of Henry Fonda’s cool hand on my fevered brow’.

Thomson asserts that she has no such right of expectation, even if it would be a nice gesture on Fonda’s behalf to offer such. And that, further, no one — no third party — has the right to force Henry Fonda to travel across country and do so. She ties this line of thinking to her violinist example, saying, ‘nobody has any right to use your kidneys unless you give him this right’. In short, arguing that a right to life does not mean that a person therefore has the unconditional right to use of another person’s body. Although, as presented earlier, some people regard the human foetus as an exceptional case, for reasons related to the unique relationship he or she arguably has with the mother.


In one thought experiment, so-called ‘people-seeds’ float in the air, on rare occasions coming through a window and implanting themselves in the carpets or on the surfaces of furniture to result in human foetuses and, in nine months, infants.


Thomson proceeds to describe two parallel, related thought experiments, whose purpose is the same: to question whether abortion is permissible in the case of accidental pregnancy. One thought experiment is where a woman opens a window in order to air out the room. A burglar takes advantage of the open window and climbs into the house, and attacks her leaving the woman pregnant. The matter turns on whether the woman is at least partially responsible for the break-in, based on her clear-cut exercise of free will and intentionality in choosing to open the window despite the risks, thereby giving the burglar ‘a right to the use of her house’ and, metaphorically speaking anyway, her body. The notion of so-called ‘contributory negligence’ is an issue in real-life criminal cases of assault and rape, but this example seems somehow too flimsy and tangential to illuminate the discussion.

The other thought experiment is where so-called ‘people-seeds’ float in the air, on rare occasions coming through a window and implanting themselves in the carpets or on the surfaces of furniture to result in human foetuses and, in nine months, infants. To protect herself against such an occurrence, as the woman doesn’t want a child, she installs mesh on the windows, yet the people-seeds manage to get in through a defect in the mesh and take root, with the result that one of them becomes a baby. The supposed parallel being, of course, between the failed mesh and failed contraception.

The seed-people thought experiment has a distracting ring of science fiction to it, however. It suggests again that a necessary underlying condition of thought experiments might be in their hewing close to what’s plausible in the real world, their allowable imaginative creativity notwithstanding. If some approximation to reality is desired, I found this particular thought experiment to falter, bordering on the bizarre.

However, putting the peculiarity of Thomson’s implausible thought experiment aside momentarily, if seed-people were really to exist, and the woman knew of their existence and the risks they pose, then there would be an interesting question to be asked over whether or not the woman would indeed have a responsibility toward the resulting human foetus and baby. There’s only so much responsibility with life’s conditions that one might legitimately remove from her shoulders because of either ignorance or disregard of safety measures. To borrow Thomson’s words, ‘there are some cases in which the unborn person has the right to the use of its mother’s body, and therefore some cases in which abortion is unjust killing’. This might be one of them.

However, in returning to the violinist thought experiment, Thomson now adds a wrinkle. She asks whether it makes a difference if the choice is to allow or disallow the violinist’s use of your kidneys by staying tethered to you for an hour instead of the original nine months. All the other conditions, particularly the fact that the hook-up was unknowingly performed while you slept, remain in place. Further, the presumption, justified or otherwise, is that there is no risk of harm to you. Thomson concludes, ‘It seems plain to me you ought to allow him to use your kidneys for that hour — it would be indecent to refuse’. But some people may not be persuaded, instead believing that the professed quaintness of ‘indecency’ — or the contrivance of a shortened timeframe — is not the real issue.

This question of a sliding scale, or ‘matter of degree’, of morality, comes up in Thomson’s abrupt switch to the case of the so-called ‘good Samaritan’ and the ‘minimally decent Samaritan’. The well-known ethical story of the good Samaritan concerns a person from that region who comes upon a man who has been attacked by thieves, leaving him stripped and half dead. Unlike earlier passersby who did nothing to help the man and went on their way (thus not acting even ‘minimally decently’), the Samaritan goes to unsparing lengths, at his own expense, to ease the man’s plight.

Thomson then revisits the mid-1960s murder of Kitty Genovese in New York, who was attacked and killed while some three dozen people heard the victim’s screams during the knife attack yet none rushed out to help Ms. Genovese nor called the police — which would be the ‘minimally decent Samaritan’ model. It may well be easy to agree with Thomson that ‘it was not morally required’ of any of the witnesses to run out and give direct assistance at grave risk to their own life. But surely, at the very least, there was a moral and humanitarian obligation to alert the police.

This discussion is at first couched in terms of whether, at the moment in history Thomson published her paper, fifty years ago, laws regarding abortion required women to be not just ‘good Samaritans’, but ‘very good Samaritans’, in sustaining the life of all unborn persons. But she doesn’t delve further into that subject. Instead, Thomson pivots to matters of morality. She asks ‘whether we must accede to a situation in which somebody is being compelled — by nature, perhaps — to be a good Samaritan’.

Thomson concludes by clarifying that although she ‘does not argue that abortion is not impermissible, I do not argue it is always permissible’. Accordingly, she notes that ‘minimally decent Samaritan’ principles likely apply in certain situations that propel the woman to bring the ‘child’, as she calls it, to term, and ‘in other cases resort to abortion is even positively indecent’.

The debate hinges too on whether, up to a certain point of maturity, the human foetus will not survive outside the ‘mother’s body’, even with the best of modern medical intervention. Significantly, over the decades such intervention has shifted survivability earlier and earlier. This is the ‘viability’ debate. Yet the issue is not easily reduced to mere practicality. After all, there are many other circumstances where human survivability is similarly unlikely without intervention, whether by familial, medical, or other involvement, such as newly born infants, some elderly people, and disabled or seriously ill members of society. These groups are not considered disposable, as worthless. It seems inconsistent to apply independent survivability as a morally acceptable, even sufficient, determinant of whom to protect.

Ultimately, I suspect that conclusive answers to the questions posed here, to confidently put one’s thumb on the scale in this tangle of rights and ethics, must reach deeper than many thought experiments, even as creative ‘works of fiction’ like Thomson’s, might be able to go. The fraught history of this subject, with both sides unrelenting in their claim to rectitude, doesn’t augur clear-cut resolution in the measurable future, inventive thought experiments notwithstanding — which may simply come down to whose partisan thumb happens temporarily to be on the political scale at any moment in time. What might seem beyond debate now may not prove to be forever.

Writing in 2020, with a presidential election looming, considerations in the United States around the right-to-life and right-to-choose factions have taken on decidedly ramped-up urgency and stridency, as each side jostles for state, congressional, and Supreme Court advantage. The result being that what had long been presumed as settled law — by a historical, landmark Supreme Court decision in 1973, just two years after Thomson’s paper was published— is again in the crosshairs, as fair for re-litigation. The U.S. presidential race has spotlighted the stakes couched by the arguments launched and deflected by both sides, with everyone fully anticipating the rancour to remain long after the election has been resolved. The moral stakes and heightened passions will make the issue even harder to discuss let alone resolve.

Except, perhaps, through materially groundbreaking shifts in the exacting and imaginary world of thought experiments to reframe the deliberation.


Editor's note.  Thomson’s A Defense of Abortion’ was first published in the journal Philosophy & Public Affairs in 1971. The full text can be read here.

About the author: Keith Tidman is a regular contributor to Philosophical Investigations, the sister site of The Philosopher.