Allen, Anita. 22 Atmospherics: Abortion Law and Philosophy
2004, In Francis J. Mootz (ed.), On Philosophy in American Law. Cambridge University Press 184
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Added by: Simon Fokt
Abstract: In 1934, Karl N. Llewellyn published a lively essay trumpeting the dawn of legal realism, "On Philosophy in American Law." The charm of his defective little piece is its style and audacity. A philosopher might be seduced into reading Llewellyn’s essay by its title; but one soon learns that by "philosophy" Llewellyn only meant "atmosphere". His concerns were the "general approaches" taken by practitioners, who may not even be aware of having general approaches. Llewellyn paired an anemic concept of philosophy with a pumped-up conception of law. Llewellyn’s "law" included anything that reflects the "ways of the law guild at large" - judges, legislators, regulators, and enforcers. Llewellyn argued that the legal philosophies implicit in American legal practice had been natural law, positivism and realism, each adopted in response to felt needs of a time. We must reckon with many other implicit "philosophies" to understand the workings of the law guild, not the least of which has been racism. Others, maternalism and paternalism, my foci here, persist in American law, despite women’s progress toward equality. Both maternalism and paternalism were strikingly present in a recent decision of the U.S. Supreme Court, Gonzales v. Carhart, upholding the federal Partial-Birth Abortion Ban Act.Comment : This article offers a good way to relate practical legal problems with philosophical issues, giving the students a very direct way to see the relevance of ethics. It can inspire discussions on paternalism and its relations with global justice. Note that the article does not define the following terms which are important to understand the material: Natural law, Positivism, Realism, Atmosphere/atmospherics, Paternalism, Maternalism. Due to its focus on legal issues, the text can be better suited as further reading, or as a core reading in classes focused on applied ethics and law (following Diversifying Syllabi).English, Jane. Abortion and the Concept of a Person1975, Canadian Journal of Philosophy 5(2): 233-243.-
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Added by: Simon Fokt, Contributed by: William Bauer
Introduction: The abortion debate rages on. Yet the two most popular positions seem to be clearly mistaken. Conservatives maintain that a human life begins at conception and that therefore abortion must be wrong because it is murder. But not all killings of humans are murders. Most notably, self defense may justify even the killing of an innocent per- son.
Liberals, on the other hand, are just as mistaken in their argument that since a fetus does not become a person until birth, a woman may do whatever she pleases in and to her own body. First, you cannot do as you please with your own body if it affects other people adversely. Second, if a fetus is not a person, that does not imply that you can do to it anything you wish. Animals, for example, are not persons, yet to kill or torture them for no reason at all is wrong.
At the center of the storm has been the issue of just when it is between ovulation and adulthood that a person appears on the scene. Conservatives draw the line at conception, liberals at birth. In this paper I first examine our concept of a person and conclude that no single criterion can capture the concept of a person and no sharp line can be drawn. Next I argue that if a fetus is a person, abortion is still justifiable in many cases; and if a fetus is not a person, killing it is still wrong in many cases. To a large extent, these two solutions are in agreement. I conclude that our concept of a person cannot and need not bear the weight that the abortion controversy has thrust upon it.
Comment : This is a classic article on the topic of abortion. English argues that the concept of a person is vague and complex, thus she has a more nuanced approach to personhood than some other theorists. She applies this theory to abortion, arguing that degree of personhood correlates with degree of permissibility of abortion. So her paper can be contrasted with, e.g., Thomson (who isn't concerned with personhood) and Warren (who takes a stricter approach to personhood and a wide view of the permissibility of abortion). It also is useful to contrast with Tooley's account.Foot, Philippa. The Problem of Abortion and the Doctrine of the Double Effect1967, Oxford Review 5:5-15, reprinted in Virtues and vices. Oxford: Blackwell.-
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Added by: Simon Fokt
Introduction: One of the reasons why most of us feel puzzled about the problem of abortion is that we want, and do not want, to allow to the unborn child the rights that belong to adults and children. When we think of a baby about to be born it seems absurd to think that the next few minutes or even hours could make so radical a difference to its status; yet as we go back in the life of the foetus we are more and more reluctant to say that this is a human being and must be treated as such. No doubt this is the deepest source of our dilemma, but it is not the only one. For we are also confused about the general question of what we may and may not do where the interests of human beings conflict. We have strong intuitions about certain cases; saying, for instance, that it is all right to raise the level of education in our country, though statistics allow us to predict that a rise in the suicide rate will follow, while it is not all right to kill the feeble-minded to aid cancer research. It is not easy, however, to see the principles involved, and one way of throwing light on the abortion issue will be by setting up parallels involving adults or children once born. So we will be able to isolate the ‘equal rights’ issue and should be able to make some advance.Comment : The text introduces some crucial distinctions, discussing the difference between 'doing' and 'allowing to happen' and the related negative and positive duties. Foot argues that what matters in the Doctrine is not the directness of the actor's intention, but whether they intend to follow a negative or positive duty. This paper is most useful in teaching on the ethics of abortion and euthanasia, as well as the doctrine of double effect in general.Foot, Philippa. Virtues and Vices1978, Oxford University Press.-
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Added by: Laura Jimenez, Contributed by: Nomy Arpaly
Publisher's Note: This collection of essays, written between 1957 and 1977, contains discussions of the moral philosophy of David Hume, Immanuel Kant, Friedrich Nietzsche, and some modern philosophers. It presents virtues and vices rather than rights and duties as the central concepts in moral philosophy. Throughout, the author rejects contemporary anti? naturalistic moral philosophies such as emotivism and prescriptivism, but defends the view that moral judgements may be hypothetical rather than (as Kant thought) categorical imperatives. The author also applies her moral philosophy to the current debates on euthanasia and abortion, the latter discussed in relation to the doctrine of the double effect. She argues against the suggestion, on the part of A. J. Ayer and others, that free will actually requires determinism. In a final essay, she asks whether the concept of moral approval can be understood except against a particular background of social practices.Comment : Foot stands out among contemporary ethical theorists because of her conviction that virtues and vices are more central ethical notions than rights, duties, justice, or consequences. Since the author discusses multiple relevant topics (abortion, euthanasia, free will/determination, and the ethics of Hume and Nietzsche) this book is a really complete reading for Ethics courses. The book can be used in both, undergraduate and postgraduate courses, but the last eight essays are more suitable for postgraduates.Harman, Elizabeth. Creation Ethics: The Moral Status of Early Fetuses and the Ethics of Abortion1999, Philosophy and Public Affairs 28 (4):310-324.-
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Added by: Clotilde Torregrossa, Contributed by: Simon Fokt
Introduction: There has been considerable discussion of the moral status of early fetuses and the ethics of the choice whether to abort a pregnancy. But one tenable view about the moral status of early fetuses has been regularly ignored. As a consequence, a very liberal view about the ethics of abortion is more attractive than has previously been thought. Let us use the term 'early fetus' as follows: (1) 'early fetus': a fetus before it has any intrinsic properties that themselves confer moral status on the fetus. I assume that there is a nonnegligible period of time in which fetuses are early fetuses in my sense; it may be as short as a few weeks or as long as several months, depending on which intrinsic properties can them- selves confer moral status. One plausible view says that an early fetus is a fetus before it has any conscious experience and before it can properly be described as the subject of experience.Hursthouse, Rosalind. Beginning lives1987, Oxford: Basil Blackwell.-
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Added by: Simon Fokt
Back matter: In this text book Rosalind Hursthouse examines the complex questions surrounding the morality of abortion. Beginning by discussing the moral status of the foetus, she outlines and criticizes the main philosophical liberal positions on abortion, discussing alsl their bearing on the related issues of ifanticide, foetal research, surrogacy, murder and our treatment of animals. In place of the currently prevailing positions, the author offers a novel approach to these issues based on the recently revived theory of neo–Aristotelianism which emphasizes moral virtues and vices. A central element of Beginning Lives is its emphasis on the special nature of abortion: its unique relation to the facts of women′s pregnancies and hence to our attitudes to childbearing, motherhood, maturity and sexual relations.Comment : The first chapters provide an excellent overview of the main topics in the abortion debate. Chapter 3 is particularly useful in teaching, as it offers a response to personhood accounts - it can be used in conjunction with Tooley's 'Abortion and Infanticide' (1972). Chapter 5 presents an in-depth discussion of women's rights and is useful in teaching on ethical issues related to abortion, but can also provide excellent support for teaching about feminism or human rights in general.Hursthouse, Rosalind. Virtue, Theory and Abortion1991, Philosophy & public affairs 20(3): 223-246.-
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Added by: Simon Fokt
Abstract: The sort of ethical theory derived from Aristotle, variously described as virtue ethics, virtue-based ethics, or neo-Aristotelianism, is becoming better known, and is now quite widely recognized as at least a possible rival to deontological and utilitarian theories. With recognition has come criticism, of varying quality. In this article I shall discuss nine separate criticisms that I have frequently encountered, most of which seem to me to betray an inadequate grasp either of the structure of virtue theory or of what would be involved in thinking about a real moral issue in its terms. In the first half I aim particularly to secure an understanding that will reveal that many of these criticisms are simply misplaced, and to articulate what I take to be the major criticism of virtue theory. I reject this criticism, but do not claim that it is necessarily misplaced. In the second half I aim to deepen that understanding and highlight the issues raised by the criticisms by illustrating what the theory looks like when it is applied to a particular issue, in this case, abortion.Comment : Most useful as further reading in two contexts: (1) the ethics of abortion and the use of virtue ethics in determining its moral status; (2) virtue ethics, its relations with deontology and utilitarianism, and objections against it, with a discussion of the problem of abortion supporting the value of the neo-Aristotelian theory.Jackson, Jennifer C.. Toleration in the Abortion Debate1992, In: Bromham D.R., Dalton M.E., Jackson J.C., Millican P.J.R. (eds) Ethics in Reproductive Medicine. Springer, London pp 189-200-
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Added by: Barbara Cohn, Contributed by: Simon Fokt
Abstract: What methods, what strategies, is it defensible for us to employ when campaigning on a contentious moral issue? What kinds of intolerance may we legitimately manifest towards the opposition in our endeavour to win converts and influence opinion? Could we be justified in refusing on principle even to engage with the opposition in public debate? And what of the legitimacy of 'playing' on people's emotions, or of not correcting misinformation put about by some of our supporters which helps our cause? Or, in making use of premises in argument that our opponents accept but we do not or, of appealing to arguments that we know to be invalid but by which the opposition may be taken in?Kornegay, R. Jo. Hursthouse’s Virtue Ethics and Abortion: Abortion Ethics without Metaphysics2011, Ethical Theory and Moral Practice 14(1): 51-71.-
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Added by: Nick Novelli
Abstract: This essay explicates and evaluates the roles that fetal metaphysics and moral status play in Rosalind Hursthouse's abortion ethics. It is motivated by Hursthouse's puzzling claim in her widely anthologized paper Virtue Ethics and Abortion that fetal moral status and (by implication) its underlying metaphysics are in a way, fundamentally irrelevant to her position. The essay clarifies the roles that fetal ontology and moral status do in fact play in her abortion ethics. To this end, it presents and then develops her fetal metaphysics of the potential and actual human being, which she merely adumbrates in her more extensive treatment of abortion ethics in her book Beginning Lives. The essay then evaluates her fetal ontology in light of relevant research on fetal neural and psychological development. It concludes that her implied view that the late-stage fetus is an actual human being is defensible. The essay then turns to the analysis of late-stage abortions in her paper and argues that it is importantly incomplete.Comment : This paper provides a detailed analysis and critique of Rosalind Hursthouse's argument in 'Virtue Ethics and Abortion'. As Hursthouse's paper is frequently taught, this article would provide a good counterpoint to it. This dialogue could form part of an examination of the practical application of virtue ethics, or as part of an examination of the applied ethics of abortion from alternative ethical perspectives. This paper is suitable for undergraduate or graduate teaching.Lambert-Beatty, Claire. Twelve Miles: Boundaries of the New Art/Activism2008, Signs: Journal of Women in Culture and Society 33(2): 309-327.-
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Added by: Rossen Ventzislavov
Summary: Lambert-Beatty explores the limits of art activism through a detailed account of Rebecca Gomperts' Women on Waves project. Starting in 2001, Gomperts - a physician with a background in art - sailed a customized maritime gynecological clinic with a crew from the Netherlands to the coastal areas of countries where abortion had been outlawed. The clinic would dock far enough from the shore (twelve miles being the limit of states' naval jurisdictions) to offer healthcare to local women undisturbed. Lambert-Beatty notes that for all of its political import, the project retains a radical imagination of the poetic kind. Considering its enthusiastic reception by the international artworld, and inclusion in major art exhibitions, it is also clear that Gomperts intended the work at least partially as art. And, yet, Women on Waves challenges notions of the aesthetic as the "retreat from the real" that it is so often seen as. Lambert-Beatty sees the pragmatic aspect of the work as an integral part of its beauty, and vice versa. This symbiotic balance seems to resolve the tension Ranciere finds "between the logic of art that becomes life at the price of abolishing itself as art, and the logic of art that does politics on the explicit condition of not doing it at all."Comment : This text is best used in discussions of the relationship between art and political activism. It can also be used as a case study in applied ethics classes on abortion.Can’t find it?Contribute the texts you think should be here and we’ll add them soon!
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