Creation and Abortion This page intentionally left blank CREATION AND ABORTION A Study in Moral and Legal Philosophy F. M. KAMM New York Oxford OXFORD UNIVERSITY PRESS 1992 Oxford University Press Oxford New York Toronto Delhi Bombay Calcutta Madras Karachi Petaling Jaya Singapore Hong Kong Tokyo Nairobi Dar es Salaam Cape Town Melbourne Auckland and associated companies in Berlin Ibadan Copyright © 1992 by F. M. Kamm Published by Oxford University Press, Inc. 200 Madison Avenue, New York, NY 10016 Oxford is a registered trademark of Oxford University Press All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the publisher. Library of Congress Cataloging-in-Publication Data Kamm, Frances Myrna. Creation and abortion : a study in moral and legal philosophy / Frances Myrna Kamm. p. cm. Includes bibliographical references and index. ISBN 0-19-507283-9. ISBN 0-19-507284-7 (pbk.) 1. Abortion—Moral and ethical aspects. 2. Abortion—Law and legislation. 3. Abortion—Law and legislation—United States. I. Title. HQ767.15.K36 1992 363.4'6—dc20 91-22932 246897531 Printed in the United States of America on acid-free paper To my mother and the memory of my father This page intentionally left blank Preface This is a philosophical examination of certain issues of applied ethics, based on my more theoretical work Morality, Mortality. Here I deal primarily with the moral issue of abortion, as well as self-defense, euthanasia, and pregnancy. This book began as a relatively short section of Morality, Mortality, but when that book grew beyond a reasonable size, the short section was cut and became this book. Derek Parfit, the editor of the series in which Morality, Mortality is to appear, kindly permitted me to publish the material separately. This book was prompted by my attempt to understand and modify Judith Thomson's most important discussion of abortion,''A Defense of Abortion." Her discussion is irreplaceable and unique. It was kind of her to encourage my project. I have benefited from the helpful suggestions regarding recent versions of this book given to me by Derek Parfit, Thomas Scanlon, Judith Thomson, Shelly Kagan, Dennis Thompson, Bruce Ackerman, Jon- athen Bennett, Tony Kronman, Michael Stacker, Owen Fiss, Richard Fallon, Seana Shiffrin, and those others who are credited in footnotes. Kagan made especially detailed remarks on organization. I thank Ronald Dworkin and Lawrence Sager for insightful discussions. Many years ago I wrote a paper on abortion for a class of Robert Nozick's, whose help I then greatly appreciated. I am indebted to Thomas Nagel for his continuing support and encour- agement and the intellectual standards he sets. I also would like to thank Drs. Kenneth Ryan and Rapin Osatha- nondh, as well as the staff and patients, for making possible my observa- tion of abortions at Boston's Brigham and Women's Hospital. viii Preface I am grateful to my typists, Nerssa Miller, Marie Palumbo, and Helen Snively, to Lynn Gay for help indexing, and to Cynthia Read, Jeffrey Gordon, and Ann Wald for their support and advice. My efforts have been supported most recently by a New York Univer- sity Presidential Fellowship (1985), an American Association of Univer- sity Women Fellowship (1985-86), a Silver Fellowship in Law, Sci- ence, and Technology at Columbia University Law School (1986), and a Fellowship in Ethics and the Professions at Harvard University (1989- 90). Shorter versions of all the chapters were presented as public lectures: a Silver Lecture in Law, Science, and Technology at the Columbia University Law School (January 1987) and a Faculty Colloquium public lecture at the New York University Law School (April 1987). In addi- tion, an earlier version of some of the chapters was presented at a New York University Law and Philosophy Colloquium Meeting, Fall 1986, and in 1984 in Ronald Dworkin's seminar in political theory at the New York University Law School. I am grateful to these audiences for their comments, and to members of the Society for Ethical and Legal Philoso- phy for discussion in Fall 1989. New York F. M. K. August 1991 Contents Introduction, 3 1. May We Kill in Nonabortion Cases? 20 2. Applying the Argument to Specific Nonabortion Cases, 42 3. Variations and Alternatives, 64 4. May We Kill in Abortion Cases? 78 5. Creating Responsibly, 124 6. Informed Consent, Responsibilities in Pregnancy, and External Means of Gestation, 186 Index, 221