Summary of Mary Anne Warren’s “On the Moral and Legal Status of Abortion”

The United States Supreme Court membership in 1973 at the time of Roe v. Wade.

What follows is an outline of  Mary Anne Warren’s 1973 piece, “On the Moral and Legal Status of Abortion.” It is a classic of the literature and is still reprinted in college textbooks.

I will show that the fetus is not a person, and hence not worthy of full moral rights. Most anti-abortion arguments don’t do this but instead defend abortion by 1) pointing out the negative consequences of restricting access; or 2) claim the woman controls her body.

Both arguments are problematic. The key question is whether the fetus is a person.

Warren begins by noting that, in a previous essay, Judith Jarvis Thomson had a key insight – even if a fetus has rights, that doesn’t mean they supersede a woman’s.

Section 1 – She argues that we can’t conclusively demonstrate that abortion is permissible if the fetus has a right to life. Thomson’s argument fails in that the anti-abortionist may argue that one is responsible for the child except in rape cases. If we change the violinist’s story—who in Thomson’s story attaches himself to a woman’s body in order to save his life—it appears we may still be obligated to save the violinist. Thus we must deal with the ontological status of the fetus.

Section 2 – The question is: “How are we to define the moral community, the set of beings with full and equal moral rights, such that we can decide whether a human fetus is a member of this community or not?”  Two questions arise: 1) what is a human (genetic sense of human) and 2) what is a person (moral sense of human)?

To be a person you must satisfy at least 2 or 3 of her criteria—but fetuses satisfy none of these. A fetus is not a person by any objective measure and thus not a member of the moral community.

This raises 2 other questions: 1) how like a human does something have to be to have a right to life and 2) do potential people have a right to life? Regarding 1, a fetus is not very personlike, in fact, less so than a mature fish (according to her criteria). Regarding 2, the rights of potential people, even millions of them, cannot outweigh the rights of actual people.  Even if they could kill you and make millions of people out of you you still have the right to escape (self-defense). Or even if you only had to be captured for nine months or a day (pregnancy) or even if you had been captured because of carelessness (you were partly responsible, never completely responsible as the man has some responsibility) you still have a right to escape no matter how many potential people might be born because the rights of an actual person always outweigh the rights of potential persons.

The argument does not apply to infanticide primarily because while in her body the woman has the primary say as to what happens to the fetus whereas after something is born, she no longer does.

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