Biomedical Ethics Paper

"… but I Could Never Have One": The Abortion Intuition and Moral Luck

Author(s): Hilde Lindemann

Source: Hypatia , Winter, 2009, Vol. 24, No. 1, Oppression and Moral Agency: Essays in Honor of Claudia Card (Winter, 2009), pp. 41-55

Published by: Wiley on behalf of Hypatia, Inc.

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"* .. But I Could Never Have One": The Abortion Intuition and Moral Luck

HILDE LINDEMANN

Starting from the intuition, shared by many women, that the legal right to an abortion

must be defended but that they themselves could never undergo one, I offer an account

of why pregnancy is morally valuable and why, nevertheless, it is often permissible to

end one. Developing the idea that human pregnancy centrally involves the activity of

calling a fetus into personhood, I argue that the permissibility of stopping this activity

hinges on the goodness or badness of one's moral luck.

Of the many intuitions people have about abortion, there is one-for purposes of this paper, I'll just call it the abortion intuition-that has received little attention from feminists, even though many women share it. "Abortion should be legal," a friend or neighbor or student will say, "but I could never have one."

On its face, this is a peculiar statement. If abortion is acceptable for everyone else, why should it be wrong for me? Why would I give my moral approval to all abortions except my own? One explanation for the apparent tension created by excepting oneself from a permission granted to others is that those who do it suffer from a kind of patriarchal hangover: they have almost, but not quite, gotten themselves out from under the regnant pronatalist ideology. They can see that other women need the freedom to decline a pregnancy they did not choose, but their own consciousnesses are still sufficiently infiltrated by this ideology to make that option seem immoral for them. If that's the right analysis,

then it's no wonder that feminists haven't bothered to theorize the abortion intuition. But I think this explanation is too quick (not to mention cavalier in its dismissal of a significant number of women). My own view is that, far from

being an epiphenomenon of patriarchy, the abortion intuition arises from a set of moral considerations that feminists in particular have good reason to take seriously. The project of this paper, then, will be to see what the intuition can

Hypatia vol. 24, no. 1 (Winter, 2009) (? by Hilde Lindemann

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42 Hypatia

teach us about what we are undertaking when we undertake a pregnancy, and what we are stopping when we stop one. I argue that what the abortion intuition gets right is that pregnancies are

valuable, and that in ending them, something of value is lost, even when other goods are gained. Pregnancies trigger a complex social apparatus that performs the morally worthy function I conceptualize as calling the fetus into person hood. While the array of normative understandings and expectations that are mobilized for this purpose far outstrip any individual woman's personal control, this is ordinarily a good thing: no decent society leaves the responsibility for producing future generations entirely up to individual choice. I suspect that women with the abortion intuition might feel that once they have become pregnant, the fact that they didn't mean to doesn't rank highly enough in their own economy of values to outweigh the moral goodness of calling a growing fetus into personhood, although other women might have such bad luck in their personal circumstances as to make the option of abortion necessary for them. So I'll explore the respects in which continuing or stopping a pregnancy are open to moral luck. I'll conclude, however, by arguing that the good-making features of continuing a pregnancy that are honored by the abortion intuition can easily be outweighed by the bad circumstantial moral luck of gender oppression. Before I begin to examine pregnancy in the light of the abortion intuition, let me be clear about what I am not saying. I am not saying that because pregnancies are valuable, women should have no legal right to terminate them. My position leaves room for the possibility that a woman might do something wrong by standing on her right, but that she has the right should never be in doubt. Unfortunately, it is. According to the Alan Guttmacher Institute,

Recent changes in the membership of the U.S. Supreme Court have led some state policymakers to consider the possibility that Roe v. Wade could be overturned and regulation of abortion returned to the states. Some state legislatures are considering banning abortion under all or virtually all circumstances; these measures are widely viewed as an attempt to provoke a legal challenge to Roe, while other states are considering abortion bans that would go into effect in the event that Roe is overturned. And a number of states still have pre- 1973 abortion bans on the books-several of which, in theory, could be enforced if Roe were ever overturned. Still other states have laws declaring the state's intent to ban abortion to the extent permitted by the U.S. Constitution. (Alan Guttmacher 2008)

It cannot be said too often or too plainly: women's right to determine for themselves whether to sustain a pregnancy, at least in the first two trimesters, must be protected by law.

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Hilde Lindemann 43

Moreover, this right must be interpreted as a positive right: because full participation in social life requires freedom from unwanted pregnancy, reason able access to abortion must be available to any woman who needs it.1 At the moment, there are no physicians to provide them in eighty-seven percent of counties nationwide. If the same were true of, say, schoolteachers or police officers, state intervention would be forthcoming to assure that citizens received the services that are their due. That no such intervention assures women's receiving the abortions they need simply indicates that their right is not taken seriously.

THE VALUE OF A PREGNANCY

To start the argument that the abortion intuition has something to teach us about pregnancy, let's return to the thought, embedded in the intuition, that pregnancies are valuable. As a way of unpacking this thought, I'll consider two sources of value: (a) the fetus, and (b) the pregnant woman's activity. I'll begin with the fetus.

Many people, myself included, are inclined to say that although a fetus is not the same as a child-indeed, the question for a woman who contemplates aborting her fetus is precisely whether to allow it to become a child-fetuses aren't totally worthless, either. And nor, for that matter, are the embryos from which they developed. In the bioethics literature over the last quarter of a century, this valuation has often been expressed in the language of respect. For example, in 1979 the Ethics Advisory Board of what was then the Department of Health, Education, and Welfare declared that fetuses are "entitled to profound respect"-though not profound enough to refrain from killing them, it seems, because the Advisory Board declared that fetal tissue could be used in research (Department of Health, Education, and Welfare 1979). The National Institutes of Health's Human Embryo Research Panel concluded in 1994 that the embryo deserved "special respect" as a developing form of human life, and justified its recommended restrictions on embryo research on those grounds (National Institutes of Health 1994). The National Bioethics Advisory Commission's 1999 Ethical Issues in Human Stem Cell Research also speaks of the respect due to embryos as a form of human life, though it defends the destruction of embryos for the purpose of harvesting the stem cells that lie within them (National Bioethics Advisory Commission 1999).

As these conflicting conclusions demonstrate, the language of respect doesn't tell us very much. It gives little guidance for how embryos and fetuses should be treated, and it offers no clues as to what exactly is so respect-worthy about things of this kind. To answer these questions, I think we have to look to the paradigmatic persons that, under exactly the right conditions, with exactly

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44 Hypatia

the right kind of help from the gestating woman and exactly the right kind of luck, embryos will become if all goes well. That paradigmatic persons (waitresses, for example, or literary critics) are

enormously valuable is not seriously in doubt. Whether they derive this value-a worth so great that Kant declared it "beyond price"-from their ability to reason or their capacity for rich and various experiences, or whether their worth is intrinsic, not dependent on the value of some other character istic, need not concern us at the moment. More to the point is how strange it would be if entities of such enormous obvious worth should develop from beginnings worth nothing at all. The continuum of development between human embryos and mature

human beings gives us a reason to value the one if we value the other, although we needn't value them to the same degree.2 I want to take this observation a step further, to suggest that the worth of a mature human being bleeds over, as it were, both backward onto the fetus from which the person came, and forward onto the corpse that is its final state (J. Nelson unpublished). We treat dead bodies ceremoniously to acknowledge the worth of the people they once were; we construct personalities and futures around growing fetuses to mark the worth of the people they will soon be. The more closely either kind of liminal person approximates to paradigmatic persons, the greater its value. That is why we don't typically mourn the passing of an embryo that has sloughed off a woman's body instead of attaching itself to the uterine wall-and why we usually do mourn a miscarriage in the seventh month of gestation, even if the woman did not want that particular fetus to become her daughter or son. If this is right, then we already have a way of understanding what is valuable

about (b) a pregnant woman's activity: she is moving a fetus ever closer to paradigmatic personhood. Particularly worth underscoring is that fetuses don't just grow into persons by themselves. They are the kinds of things (unlike acorns or puppies) whose value resides in their ability to become persons, but it takes a woman to get them there. Which is to say that pregnancy isn't merely something that happens to a woman-it's something she does. It's seriously misleading to think of pregnant women's bodies as flowerpots, ovens, or incubators, because when we do that, we lose sight of how pregnancy requires the exercise of a woman's moral agency. Not long ago, my daughter Elise was pregnant with her very much wanted first child. Like any human pregnancy, hers was not simply a biological process but a purposeful activity in which she was creatively engaged. For starters, she had to manage unrelenting nausea by learning, through trial and error, what foods she could tolerate and how often she needed to eat; this required her to take packets of cheese, crackers, almonds, and so on to work with her so that food would be available right when she needed it. In her twentieth week she developed high blood pressure, so she bought an exercise machine and forced

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Hilde Lindemann 45

herself to use it regularly. In her twenty-first week she also developed gestational diabetes, which meant she had to revamp her already restricted diet, prick her finger four times a day to check her glucose levels, and give herself a shot of insulin every night at bedtime. These developments demanded first biweekly and then weekly doctor's visits so she could be monitored for possible complications. All of this activity makes it pretty hard to overlook the ways in which a

human pregnancy is agential. But to describe it in purely physical terms fails to capture the central role the woman is playing in the profoundly social activity of calling her fetus into personhood, making a place in the social world for the developing child to occupy when it is born. By the phrase "calling a fetus into personhood," I don't mean "giving birth" or "giving biological life." I view personhood as a social practice-as, indeed, the most fundamental social practice, the one on which all other practices rest. It consists in the physical expression of human beings' intentions, emotions, beliefs, attitudes, and other manifestations of personality, as recognized by other persons, who then respond by taking up an attitude toward them of the kind that's reserved for persons. It's

through this practice that we establish relations to children, friends, pedes trians, patients, and other persons who are different in kind from the relations we have toward furniture, pets, or plants (see H. Nelson 2002). Note that these are relationships of many different kinds, with different kinds of responsibilities

attached to them. The fetus the pregnant woman calls into personhood is a daughter or a son: someone whom she is expected to take care of for many years and who will always be a part of her family. For her to call her fetus into personhood therefore commits her, at least by default, to an intimacy that will probably endure the rest of her life (Little 2003). Human fetuses can't participate in the practice of personhood. Instead, they

are called into personhood by existing persons, and in this way they become children. Annette Baier seems to have thought of this process as beginning in infancy when she famously wrote, "A person, perhaps, is best seen as one who was long enough dependent upon other persons to acquire the essential arts of personhood. Persons are essentially second persons" (Baier 1985, 84). They are indeed, in my view, second persons, but the process of their becoming so usually begins long before birth. The developing fetus can't actually be said to have a personality of its own

until very late in the pregnancy, although the woman who carries it is apt to interpret random fetal movement-the dig of a tiny elbow just under the maternal ribcage or a sharp heel against the maternal spine-as expressions of mental states. Commonly, however, not only she but also her partner, parents, other children, and friends have begun to call the fetus into personhood months earlier, long before it quickens. They do it by thinking of and talking about the fetus as if it were already the born child they hope it will become.

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46 Hypatia

William Ruddick has usefully called the forward-looking relationship estab lished in this way a proleptic relationship. Prolepsis, as a literary device, is the treating of a future state of affairs as if it already existed. It is achieved by means of an anticipatory adjective, as in the poetic "While yon slow oxen turn the furrowed plain," where the plain won't actually be furrowed until later, after the oxen have finished turning it. Proleptic pregnancies also anticipate the future in this way, because the mother-to-be and others around her treat the fetus as if it had already attained the special status reserved for persons inside the moral community. It's not uncommon in the course of a proleptic pregnancy for the parents to give the fetus a nickname (my firstborn was called Oscar in utero, though she ultimately turned out to be a girl), and all sorts of other activities, from furnishing a nursery to starting a college fund, are apt to take place in the months before the child is actually born. Ruddick dubs the proleptic view of pregnancy the "maternalist" conception, because the mother with-child thinks of the pregnancy as a maternal project of (active) baby making, not (passive) baby-carrying (Ruddick 2000, 97). It's not just those closest to the fetus who call it into personhood, though.

The pregnancy sets into motion a wide array of socially shared normative understandings, expectations, and practices whose goal is to welcome and make room for a new person in the world. In our own society, these include a default presumption that a pregnant woman will take the pregnancy to term, ultrasound images of the fetus that are taped to the refrigerator, widespread curiosity about the fetus's sex, and the (defeasible) expectation that those who are the proximate cause of the pregnancy will be responsible for the care of the resulting child. This array also includes huge amounts of social policing of pregnant women to make sure that they look after their future babies' health: think of what "everybody knows" about the importance of prenatal care; the large signs in bars cautioning their pregnant patrons not to drink alcohol; the unsolicited advice about what pregnant women should eat and how long they should sleep; the jailing of pregnant substance abusers; and on and on and on. Much of this policing is factually confused, and all of it is oppressive, as feminists have to keep pointing out (recently, Kukla 2005), but that doesn't mean it has no other function. It is also society's ham-fisted way of calling fetuses into personhood. If we take seriously (as I think we must) the feminist emphasis on the

relational nature of human selves, then we have to give up the idea that a pregnancy is essentially a private matter in which the woman is answerable to no one but herself. This is not to say that the woman has no more control over what will happen to her body than anyone else, but it does mean that how and whether-she does her pregnancy cannot be a matter of moral indifference to at least some others. Her activity is nested within a web of relationships, so that whatever she does will have an effect on those around her. The fact of her

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Hilde Lindemann 47

pregnancy has set in train all the mechanisms by which the child-to-be is woven into that web, and many of these mechanisms are outside the woman's control.

Embedding pregnancy within largely unchosen social relationships is not, on the whole, a bad arrangement, particularly when we contemplate the alternative. Indeed, the unchosen affinities that permeate families are of crucial social importance, if for no other reason than that they give rise to the caregiving responsibilities that protect the society's most vulnerable members. It is sad when the world meets a child with indifference, when all the woman's relationships fail her, and she is left to do her pregnancy and care for the born child all on her own. The pressures of the social mechanisms for calling new persons into the world can certainly be unwelcome if a woman is unlucky enough to be pregnant when she doesn't want to be, but we should not wish them gone. They are an important part of how our deeply relational species produces the next generation.

THREE KINDS OF MORAL LUCK

The abortion intuition's spotlight on the agentic aspect of pregnancy is useful for two reasons. First, it offers us what is arguably the primary reason that women have a right to abortion. To see this, we need only consider the difference between what antiabortion legislation requires of women and child support legislation requires of delinquent fathers. Fathers are never forced to what lawyers call specific performance. That is to say, they aren't required by law to change diapers, give baths, prepare and serve meals, help with homework, or take their children to soccer practice. All unwilling fathers have to do is pay up every month. Specific performance, in fact, is seen as a form of servitude that may lawfully be required only of conscripts when there is a clear and present danger to the state. It may not be imposed even on convicted felons. If a drunk driver smashes into your house, he might have to go to prison or (under certain victim-compensation laws) pay for damages, but he doesn't have to repair your brickwork or replace your broken door with his own hands.

By contrast, antiabortion legislation holds pregnant women-who are innocent of any wrongdoing-to a punitive standard of specific performance, sentencing them against their will to the many kinds of hard work, physical discomfort, and outright danger that my daughter willingly undertook to bring her child into the world. No other class of people is held to this standard in peacetime. No woman should be held to it either.

The second reason to emphasize that sustaining a pregnancy is something women do rather than something that happens to them is that it helps to clarify just how moral luck operates here. What happens to us can certainly be implicated in moral luck, but what makes it moral luck is that what happens has

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48 Hypatia

an impact on what we must do next, or it changes the nature of what we did, or it makes it much easier for us now to do something morally awful, and so on. It's moral luck when, as Thomas Nagel puts it, "a significant aspect of what someone does depends on factors beyond his control, yet we continue to treat him in that respect as an object of moral judgment" (Nagel 1993, 58). Margaret Urban Walker's formulation is even pithier: it's a matter of responsibilities' outrunning control (Walker 2003, 26). Moral luck, then, is tightly linked to moral agency. To make sense of the thought, embedded in the abortion intuition, that moral luck operates in the arena of human pregnancy, it will therefore be important to bear in mind that sustaining a pregnancy too is an exercise of moral agency.

INCIDENT LUCK

Bernard Williams distinguishes between two kinds of moral luck. The first kind, about which he has by far the most to say, is luck that affects "what one will turn out to have done" (Williams 1993, 53); we'll call this incident luck. This is the luck he attributes to Gauguin, who "turns away from definite and pressing human claims on him in order to live a life in which, as he supposes, he can pursue his art" (37). From "here"-the point at which Gauguin decides to leave his wife and children and head for Tahiti he can't assess whether he is wrong and unjustified (so Williams argues). It's only from "there," after it has all unfolded, that he can know not only whether his project failed, but whether he failed. Williams's claim isn't simply an epistemic one: it's not that Gauguin's choice bore a particular moral valence from the time it was made but he only discovered later what that valence was. Rather, the claim is that the choice took on the valence it did as subsequent events took place-events that were only partly under Gauguin's control. Indeed, Williams argues that one can be morally accountable for outcomes that aren't in any way under one's control. "The lorry driver who, through no fault of his, runs over a child" (43) will likely experience agent-regret: he will blame himself and wish he had done something to avoid the accident. Others will try to comfort him with the thought that it wasn't his fault, but as Williams points out, it's important that this needs to be done, and we would look askance at a driver who didn't need such reassurance. Equally a matter of incident luck is an example of Nagel's: the reckless driver who runs a red light and doesn't hit a pedestrian, simply because no pedestrian happened to be there.

CONSTITUTIVE LUCK

The second kind of moral luck Williams mentions is constitutive luck-luck that enters into the development of a person's character. Nagel describes this as

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Hilde Lindemann 49

luck "in the kind of person you are, where this is not just a question of what you deliberately do, but of your inclinations, capacities, and temperament" (Nagel 1993, 60). A person may, for example, be envious by nature and hate the fact that her co-worker was promoted, but, by a monumental effort of will, congratulate the co-worker cordially and do nothing to interfere with or belittle his success. Such a person, says Nagel, still has the vice of envy and is morally open to censure for it: she's assessed for what she is like.

Constitutive luck is the primary focus of Claudia Card's concern in The Unnatural Lottery: Character and Moral Luck, but unlike Nagel, who seems to suppose that our inclinations, capacities, and temperament are naturally given, Card argues that they are largely a product of how others treat us. "As long as agents are formed and modified through interaction with other agents," she observes, "there is bound to be moral luck within the world of agency. Obvious major sources of constitutive moral luck are relationships with significant others (parents, lovers) and relationships structured by basic social institutions (educational, economic)" (Card 1996, 40-1). This is the kind of moral luck that Card thinks it especially important to do something about. As I understand her, the reason why lesbians, adult survivors of childhood abuse, and "middle- and lower-class women who face violence and exploitation in misogynist and class-hierarchical societies" (4) must take responsibility for social institutions and personal relationships is that doing so allows them to resist their own oppression and so perhaps mitigate some of the harm they suffer

as a result of constitutive bad moral luck. I'm less convinced than Card that the capacity for responsible agency is ordinarily "stunted or damaged by oppression or abuse" (47), but I certainly agree that others play a significant role in the formation of one's character.

LUCK IN ONE'S CIRCUMSTANCES

Nagel identifies a third kind of moral luck-one that Card hints at in the way she conceptualizes constitutive luck. This is luck in one's circumstances, by which Nagel means not only "the kinds of problems and situations one faces" (Nagel 1993, 60), but also the kind of social world one happens to live in. Card treats these circumstances as causes of certain kinds of constitutive luck, and so they often are. In addition, though, they can be considered independently of their impact on one's character. Here is Nagel's example:

Ordinary citizens of Nazi Germany had an opportunity to behave heroically by opposing the regime. They also had an opportunity to behave badly, and most of them are culpable for having failed this test. But it is a test to which the citizens of other countries were not subjected, with the result that even if they, or some of them, would have behaved as badly as the

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50 Hypatia

Germans in like circumstances, they simply did not and there fore are not similarly culpable. (65)

Circumstantial luck can be thought of as luck with regard to the occasions we do or don't have to rise to. I fortunately have never been in a position where I might betray my comrades under torture-that's a test I'm happy to say I escaped. On the other hand and unfortunately, I have been in a position where I might strike a child in anger, and that's a test I'm ashamed to admit that I failed.

MORAL LUCK AND PREGNANCY

A fair amount of ordinary, garden-variety luck is involved in any woman's becoming pregnant: the sperm has to be viable, the egg has to be healthy, the fallopian tubes can't be blocked, the hormones have to get the uterus ready to receive the embryo, the embryo has to implant, and so on. Whether all this happens at a time when a woman wants it to happen is also a matter of ordinary luck (though here the luck is often mixed with her efforts). And the fact that a particular pregnancy would result in my existence, or yours, or Card's, is an instance of incredible, amazing, stupendous, yet still garden-variety luck.

There is moral luck at work here as well, though. It's a matter of constitutive luck whether a woman is a risk-taker who is willing to have unprotected intercourse, or whether she has been brought up to believe that sex for any purpose except procreation is wrong. It's a matter of incident luck whether the condom broke or the pregnancy resulted from rape. It's a matter of luck in one's circumstances whether the woman's partner is someone with whom she wants to have children, or whether she is homeless.

I want to argue that whether a given abortion carries a negative moral valence largely depends on how much bad moral luck the pregnancy involves. My daughter and her husband wanted their baby and conceived it intention ally. Even situated as they are and with all the necessary resources at their disposal, however, for Elise to have ended her pregnancy would not have been obviously wrong. Although she has plenty of energy, common sense, and a loving disposition, she hasn't been entirely fortunate in her health, financial circumstances, or professional opportunities. And things could have been much worse. Suppose, due to a stroke of bad constitutive luck, she were immature, self-absorbed, addicted to alcohol or drugs, prone to bouts of depression or violence, highly nervous, feckless, or cruel. Or suppose, due to bad incident luck, she had an illness whose treatment involved powerful drugs that ended up crossing the placental barrier and damaging the fetus. Suppose, due to bad circumstantial luck, her husband had walked out on her when he learned she was pregnant. Suppose he were abusive. Suppose she lived in a

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Hilde Lindemann 51

war-torn area or a violent neighborhood. Suppose she had no health insurance, no family or friends to help her, no education to speak of, and no money. Any of these things might have been beyond my daughter's control, yet had

some subset of them confronted her when she became pregnant, they could have imposed a number of pregnancy-related responsibilities on her. First, the pregnancy would have imposed on her the responsibility of doing what she could to ensure the viability and health of what would become her born child. Second, she would just as certainly have had the responsibility of looking after her own physical, mental, and emotional well-being. Third, if the man with whom she began the pregnancy stood in the right sort of relationship to her, she could have had the responsibility of considering his wishes, even though the ultimate decision would have been up to her. Fourth, she might have had the meta-responsibility of getting herself out of a situation in which she couldn't meet her responsibilities. If her moral luck had been bad enough, the best way to discharge some or all of these responsibilities might well have been to have an abortion. But what if that wasn't an option? Whether any woman is in a position to

procure a safe abortion is again a matter of moral luck, most of it circumstantial: it depends largely on whether the form of life she inhabits has in it the arrangements, institutions, moral understandings, and material resources that would make terminating a pregnancy a viable option. On April 9, 2006, the New York Times Magazine reported that contemporary El Salvador constitutes a social world in which there are none of these things. It's a world in which the rich get hush-hush procedures cloaked in lies and shame, and the poor get jail. In that country, abortion is permitted under no circumstances whatsoever, even if it's needed to save the life of the mother. One twenty-year-old woman who already had three children recently received a thirty-year jail term for undergoing an abortion when she was eighteen weeks pregnant. In that social world: (a) unmarried pregnant women are objects of moral condemnation; (b) unmarried women's children are bastards; (c) birth control is shameful and not readily available; (d) men rape women; (e) women are expected to be subservient to men; (f) the care of children is assigned almost entirely to their mothers; (g) sex education is almost nonexistent; (h) the poor have little access to good health care; (i) the poor have no access to safe medical abortions; and (j) abortions are illegal.

In worlds such as this, poor women's responsibilities doubly outrun their control. First they have the misfortune of being pregnant when this activity is one they shouldn't be engaged in-this results in the bad moral luck of needing to terminate a pregnancy. Then they suffer from the further misfortune of being

unable to do, through no fault of their own, what they ought to do in response to their bad moral luck-this is the bad moral luck of being unable to obtain an abortion.

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52 Hypatia

MORAL LUCK AND MORAL JUSTIFICATION

Those who hold the abortion intuition as I have unpacked it are either optimists with regard to their own bad moral luck or willing to affirm the goodness of their possible pregnancies in the teeth of any bad luck they might someday encounter. Yet they don't want to deny that others might not be as well off as they are, much less to force them into supererogatory pregnancies despite their bad moral luck. But if the permissibility of others' abortions hinges largely on how much bad moral luck the pregnancy involves, does the absence of bad luck render the abortion morally forbidden? Put another way, does a pregnant woman so fortunate that her responsibilities don't outrun her control do wrong in exercising her right to abortion? To answer this question, it's helpful to take a little detour into moral

epistemology. In a number of recent papers, Mark Lance and Margaret Little have advanced a view that they call defeasibility holism. Like other moral particularists, they hold that we have reason to believe "exceptions can be found to any proffered principles" (Little 2001, 32); it shouldn't surprise us that a consideration that serves as a reason for doing something in one context can be a reason not to do it in another. The principle, "Never be cruel," for example, doesn't hold in situations where one must be cruel to be kind, and "Never tell a deliberate falsehood" doesn't apply to "the government death squad agent asking where one's activist daughter is staying" (Lance and Little 2005, 6).

The challenge for the moral particularist is to show that the alternative to lawlike moral principles isn't moral chaos-that even if considerations can switch their moral valence from one context to the next in ways that can't be codified, we needn't give up on moral generalizations altogether. Lance and Little address this worry by considering the situations in which a moral generality doesn't hold. These situations, they argue, are always in some way defective. "It is a bad-making feature of the situation we are in," they observe about the government-death-squad case, "that lying is here not wrong-making: would that the world did not have rational creatures in it to whom the truth is not owed" (Lance and Little 2005, 6).

Lance and Little call the conditions in which moral generalizations work the way they're supposed to the privileged conditions-privileged not in the sense that they are the usual ones (they might or might not be), but in the sense that these conditions enjoy "explanatory, conceptual, or justificatory priority" over nonprivileged conditions (Lance and Little 2005, 13). There are a number of ways that privileging occurs, but the one that concerns us here is "where the conditions are elevated in an evaluative sense." Conditions are elevated when, for example, there's enough trust between you and your interlocutor to make it wrong to deceive her. When the connection between "lying" and "bad" fails to

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Hilde Lindemann 53

hold-as with the death-squad agent-something has gone wrong with the context.

Now let's return to the moral import of abortion. Defeasibly, I want to argue, abortion is bad, which is to say that in sufficiently privileged conditions, the connection between "abortion" and "bad" holds firm. Just as a woman should never be forced into marriage, so too should she not be forced into the lifelong intimacy of the mother-child relationship. But when the pregnancy has been freely chosen and one engages in it in perfect health and safety, with sufficient leisure and resources, in the absence of other countervailing claims on one's attention, and in the presence of engaged, intimate others, then stopping it is wrong for the same kind of reason that capriciously breaking off any other morally substantive social undertaking is wrong: in taking it on, one sets up legitimate normative expectations that will be disappointed when one fails to follow through. And because the conditions needn't be perfectly privileged for abortion to have a negative moral valence, I venture to say that even the fact that a pregnancy is unchosen, or one's circumstances are merely highly desirable rather than idyllic, might not be sufficient to justify aborting it. It could be wrong, given good-enough resources, health, and so on, to stop giving hospitality to an entity one has already begun to call into personhood as one's child. Where abortion is permissible or even morally desirable, it carries the good-making valence because the pregnancy is no longer sustained under privileged conditions. And, as I hope we are now in a position to see, the major culprit in de-privileging those conditions is bad moral luck.3

It's because someone has the bad constitutive luck of being self-absorbed, addicted to alcohol or drugs, prone to bouts of depression or violence, highly nervous, feckless, or cruel that her decision not to call her fetus into personhood takes on a positive moral valence: would that her character weren't so seriously defective. It's because someone has the bad incident luck of contraceptive failure at a time when her career hangs in the balance that stopping the pregnancy is good-making: would that her sexual encounter had turned out differently. It's because someone has the bad circumstantial luck of having no family or friends to help her that having a child now would be disastrous: would that her world weren't so cold and cruel.

But. But. In the case of abortion, the mechanism whereby responsibility outruns control is far from innocent. The abusive power relation whereby women's interests are systemically subordinated to men's produces the arrangement that assigns vastly disproportionate amounts of responsibility to women for the production and nurturing of the next generation, while at the same time denying women the kind of access enjoyed by men to the goods and opportunities society has to offer. There are political reasons why women are less well insulated than men against various forms of bad moral luck. Far too

many of the moral understandings and normative expectations set in train by a

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54 Hypatia

pregnancy either purport to justify or in reality perpetuate the oppression of women, and this means that the privileged conditions under which abortion is wrong, while not rare, often fail to obtain. For all its charity toward others, the abortion intuition seems unduly

sanguine about the first-person perspective on pregnancy, as if "I" were not systemically constricted by the bad moral luck of being a woman in a gendered society, even if all those other women are. To be sure, not all women are equally disadvantaged by gender, and "I" perhaps feels she is relatively lucky in that regard. Nevertheless, it's sheer bravado to predict that in "my" particular circumstances, none of the slings and arrows of fortune could ever outweigh the value of bringing a new person into the world. For that reason, although I honor the hope it expresses, I think the intuition is ultimately mistaken. Its usefulness lies, perhaps, in the cloud of philosophy it generates as we reflect on the relation between abortion and moral luck. And if its faith in what "I" can do is misplaced, it is not wrong in its assumption that we needn't lie down under our luck. Surely one part of what we owe each other is to do what can humanly be done to thicken, rather than dilute, whatever lies between any of us and misfortune. To the extent to which we engage in this activity we make our own, and others', moral luck.

Notes

I am grateful to Elise Robinson, Jim Nelson, and Naomi Scheman for their kind help in calling this paper into existence, and to Kate Norlock and Andrea Veltman for their careful comments on the penultimate draft.

1. I am dubious about the distinction between positive and negative rights, as what we think of as negative rights also require a state-supplied infrastructure if they are to be exercised. I use the term positive here simply to emphasize that the right involves something more than the assurance that no one will interfere with you.

2. For a standard defense of this position, see Sumner 1981. A variation on Sumner is Nolan 1988.

3. I can think of only one exception to the generalization that the goodness or badness of abortion hinges on moral luck. Suppose a woman begins a wanted pregnancy under close to optimal conditions, and then at, say, twenty weeks' gestation she is offered the job opportunity of a lifetime, but the job is so demanding it isn't really compatible with pregnancy and motherhood. While she's suffered the misfortune of receiving the job offer at an inconvenient time, this isn't a case of bad moral luck, yet I'm reluctant to say that she isn't morally justified in terminating the pregnancy. I do, however, see this as a genuine moral dilemma, where circumstances force her to do something that is at least slightly wrong, no matter what she does. Christopher Gowans has developed an account of moral dilemmas based on what he calls a "responsibilities to persons" view: the idea is that one can have genuine responsibilities to two different persons but in meeting one's responsibilities to the one person, one cannot carry out

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Hilde Lindemann 55

one's responsibilities to the other. I agree with his analysis, but suspect that one's responsibilities to things other than persons can also trigger dilemmas. See Gowans 1994.

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