Chris Thornhill, A Sociology of Transnational Constitutions: Social Foundations of the Post‐National Legal Structure. Cambridge: Cambridge University Press, 2017, 520 pp, hb £69.99.
| Author | Michael W. Dowdle |
| Published date | 01 July 2018 |
| DOI | http://doi.org/10.1111/1468-2230.12360 |
| Date | 01 July 2018 |
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REVIEWS
Kate Greasley,Arguments about Abortion: Personhood, Morality and Law,
Oxford: Oxford University Press, 2017, 269 pp, hb £50.00.
Is the fetus a person? Disagreement over the answer to this question could not
be stronger or more polarised. Some people are certain that a fetus has the
same moral status as a toddler, and that the consequence of legal abortion in
the UK is the slaughter of roughly 180,000 children each year. Others believe
just as fervently that restrictive abortion laws violate women’s human rights.
The result is one of the most intractable and acrimonious philosophical debates
of the 20th and 21st centuries.
There have been attempts to justify abortion while sidestepping the question
of whether the fetus is a person. For example, in Life’s Dominion, Ronald
Dworkin claimed that the personhood question was, in fact, a ‘red herring’
in the abortion debate. Opponents of abortion do not really believe that the
fetus is a person, he reasoned, otherwise they would not be able to concede
that abortion might be legitimate (or less blameworthy) if it is necessary to
save the woman’s life, or if she is pregnant as a result of rape or incest. At
the same time, Dworkin maintained that because those who are ‘pro choice’
commonly accept the legitimacy of some restrictions on access to abortion, they
actually share a belief in the fetus’s special moral status. But these ‘concessions’
on both sides are, as Kate Greasleypoints out, perhaps more likely to be strategic
and political, rather than evidence of a shared view about fetal personhood.
Others have tried to avoid the fetal personhood question by framing abortion
instead as a public health issue. There is considerable evidence that restrictive
abortion laws do not prevent abortions taking place, they just make them more
dangerous. If, as appears to be the case, abortion is more common in countries
where it is illegal, illegality does not save fetal lives; it simply endangers women’s
lives as well. If the priority is harm reduction, it could be argued that liberal
abortion laws result in less harm, and are justifiable regardless of the moral status
of the fetus. But this does nothing to tackle the central claim of those who
believe that a person exists from conception onwards, who presumably would
argue that the problem in countries with high abortion rates despite abortion’s
illegality is one of enforcement.
In this rigorous, elegant and ambitious book, Kate Greasley does not attempt
to sidestep anything. Greasley tackles the moral status of the fetus head-on, and
while it would be impossible for one book to resolve, conclusively and to
everyone’s satisfaction, the question of fetal personhood, her important new
monograph must now be required reading for anyone who wishes to claim in
the future that the fetus either is, or is not, a person. Moreover, as Greasley
explains, her book is about much more than abortion. It wrestles with some of
the most complex questions we face in other contexts, about the right to life
and the circumstances in which it is legitimate deliberately to end life.
C2018 The Author.The Moder n Law Review C2018 The Modern Law Review Limited. (2018) 81(4) MLR 722–737
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Reviews
Before coming to the central question of the threshold of personhood, and
when it could plausibly be said to have been crossed, Greasley first disposes
of three arguments in favour of abortion that do not depend upon fetal non-
personhood. First, some people have contended that, even if the fetus is a
person, forcing a woman to carry an unwanted pregnancy to term and go
through childbirth would amount to an unprecedented duty of ‘good Samari-
tanism’. This claim formed the basis of Judith Jarvis Thomson’sf amous ‘violinist
analogy’. If you were to wake up in the morning with a famous violinist’s cir-
culatory system plugged into your own, it would be very kind of you to allow
him the use of your kidneys for nine months, but you would be under no
obligation to do so. Rather, you would be entitled to unplug him, and get on
with your life.
Greasley carefully unpicks what she calls the ‘Good Samaritan Thesis’, point-
ing out that it characterises abortion as the ‘mere failure to save’ (39). In practice,
however, most abortions involve deliberately killing the fetus, rather than ‘un-
plugging’ it. A refusal to be a good Samaritan does not generally entail the
right to kill the person we have decided not to help. As Greasley puts it, ‘If it
is permissible for me to refuse to save the lives of people dying in poverty by
not giving more aid, . .. this cannot mean it is equally permissible for me to
shoot them down to prevent them taking that aid from me by force’ (56).
Secondly, Greasley tackles the question of whether abortion might amount
to justifiable homicide. Evenif the fetus is a per son, might killing it be legitimate
self-defence? The difficulty presented by the ‘Justifiable Homicide Thesis’ is
that the harm pregnancy is likely to inflict upon the pregnant woman is seldom
going to be serious enough to make killing a proportionate response. Even if
we agree that unwanted motherhood poses a threat to a woman’s wellbeing
and future happiness, ‘these are not at all the kinds of burden that people are
ever thought justified in using force, let alone lethal force, to avoid’ (61). Born
children can pose exactly the same threats to their parents, but ‘a parent is not
taken to act in legitimate self-defence if she kills her children to live a less
encumbered and better life’ (61). Of course, the fetus is inside the woman’s
body when it poses a threat to the woman’s future wellbeing, but this does
not ma ke the pro por tion alit y diffi cult y go away: I am n ot ent itle d to use l etha l
force in order to eject an intruder from my property ‘unless his presence places
a proportionately serious risk upon me’ (65) (emphasis in or iginal).
In short, neither the ‘good Samaritanism thesis’ nor the ‘justifiable homicide
thesis’ enable us to avoid the personhood question. Furthermore, both theses
involve trying to justify abortion by claiming that it is ‘like’ something else –
killing in self-defence, or unplugging a famous violinist. But of course, abortion
is not the same as either of these things, and in the case of the violinist,
the analogy could also be described as just plain ‘weird’ (38). Pregnancy and
birth are not really ‘like’ any other experience. At the same time, they are
exceptionally ordinary: every single one of us has been born. Of course, only
women can become pregnant, and this has led some feminists, such as Catharine
MacKinnon, to try to avoid the personhood question in a third way by simply
asserting that fetal rights are incompatible with sex equality rights. But because
women are not generally entitled to kill in the name of equality rights, this claim
C2018 The Author. The Modern Law Review C2018 The Modern Law Review Limited.
(2018) 81(4) MLR 722–737 723
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