McGowan: Roe vs. Wade and ‘Moral Standing’

June 20, 2022

by Richard McGowan, Ph.D.

The central question for beginning of life and end of life controversies is moral standing, also called “moral status” and “moral consideration,” the concept refers to the duties owed by moral agents to another entity or, conversely, an entity’s claims that can be made on moral agents. Most philosophers agree that human beings have full moral standing, meaning that each individual human being is owed all duties — and owed those duties equally. Other beings, for example, rabbits, lack full moral standing. We would feed a rabbit to a starving child but not a child to a starving rabbit. Rabbits do not have full moral standing.

Yet, animals have some moral standing. We cannot do to dogs and cats whatever we wish. They have some intrinsic value and interests with which we should not interfere. The law recognizes those interests. We punish people if they abuse dogs and cats. Animals can make claims on moral agents. A recent issue of New Yorker reported that animals have appeared in court, including Happy, an elephant at the Bronx Zoo, and Justice, a horse in Oregon whose owner treated him badly.

In Florida, a lawsuit was filed by Lake Mary Jane to prevent development. Does a lake have legal or moral standing? Can duties be owed to an inanimate object?

However that case is resolved matters little to animate objects, as noted above. The jury is in: animals have interests that the law protects.

For decades, strong environmentalists have argued that natural objects, especially animate entities, have moral standing. One environmentally concerned philosopher said in 1981, “every organism . . . has a good of its own which moral agents can intentionally further or damage by their actions” and that moral agents should preserve an organism’s “existence throughout the various stages of the normal life cycle of its species.” Another philosopher said in 1985 “inherent value, then, belongs equally to those who are the experiencing subjects of a life.”

Of course, if those strong environmental positions are accepted, then abortion should be banned, excepting the unnatural pregnancies resulting from incest or rape.

How did the Supreme Court handle the concept of moral status in Roe vs. Wade, the 1973 case that made abortion viable? It implicitly recognized the issue of moral standing but then ducked the issue: “Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.”

Two glaring problems exist in that passage. First, resolving when life begins is not a “difficult question” at all. As a matter of scientific fact, conception is a natural process which begins a life, whether it is a rabbit, a dog or a human being. What is at stake in the abortion question is not whether there is life but what duties, if any, are owed that life, whether the life process involves a rabbit, a dog or a human being.

The second problem is that the Court is unaware it had answered the “difficult question.” If Roe vs. Wade stands, then speculation ends. As moral philosopher Baruch Brody observed in 1975, to rule that abortion is permissible as an exercise of the woman’s right to privacy, “the Court must presuppose that the fetus is not a human being.” The moral standing of the entity in the womb has already been established.

Is it any wonder that abortions, in the years subsequent to Roe vs. Wade, have morphed into “partial births,” a euphemism for the arrival of living, breathing human beings?

Is it any wonder that the Court would want to revisit and should revisit Roe vs. Wade?


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