Law and Abortion: Moral Dilemmas - Essay Example

Law and Abortion: Moral Dilemmas Introduction The law relating to abortion has two approaches. These are Utilitarianism and Liberalism. Both approaches have the potential to present moral dilemmas. The purpose of this paper is to discuss both approaches, mention the founders being the two theories, and support any claims made by presenting a few law cases that relate to the subject at hand. Utilitarianism Bentham founded the concept of Utilitarianism in 1789. He believed that a theory was moral in nature only if it conformed to the principle of utility. According to the BLTC (2008, pg. 1): An action conforms to the principle of utility if and only if its performance will be more productive of pleasure or happiness, or more preventive of pain or unhappiness, than any alternative. Instead of 'pleasure' and 'happiness' the word 'welfare' is also apt: the value of the consequences of an action is determined solely by the welfare of individuals. A characteristic feature of Bentham's theory is the idea that the rightness of an action entirely depends on the value of its consequences. This is why the theory is also described as consequentialist. Bentham's theory differs from certain other varieties of utilitarianism (or consequentialism) by its distinctive assumption that the standard of value is pleasure and the absence of pain; by being an act-utilitarian; and by its maximising assumption that an action is not right unless it tends towards the optimal outcome. There are many philosophers that support the theory of Utilitarianism and have added their own contributions. These include David Hume, Jeremy Bentham, William Godwin, James Mill, John Stuart Mill, Henry Sidgwick, R.M. Hare, and Peter Singer (Utilitarian.net, 2008). The theory of utilitarianism does not say much on the issue of abortion What it does have to say is the following, according to (Utilitarian.org, 2008, pg. 1): Intuitionists will predictably take this as "proof" of the "inadequacy" of utilitarianism. The utilitarian, however, after noticing the various muddles produced by the intuitionist - the arguments over whether the fetus is a "person", whether one person has the "right" to the use of another's body and/or whether someone has the "right" to determine what occurs in their own body (and in the case of both, the interminable debates as to what is to be done about the dilemma), and whether having sex in the first instance amounts to an "invitation" and the effects of this - might take this issue to be a good example of the inadequacy of intuitionism. One of the disadvantages of Utilitarianism is that it avoids one of the moral issues that have been brought to the forefront of many skeptics. This is, according to Utilitarianism.org (2008, pg. 1), "If it is sometimes permissible to kill a fetus, where is the dividing-line between this and killing a normal baby (or adult)" The reason why Utilitarianism avoids the issue is because it says that it is wrong to kill a baby except in the case where the mother is in immediate danger for her life (Utilitarianism.org, 2008). The concept of Utilitarianism takes the fetus into its main consideration. The theory expects that the future life of a baby will be happy, or at least reasonably happy. Furthermore, it considers abortion to be painful for the baby, especially late in pregnancy. Utilitarianism is not outright against abortion; it is simply against abortion late in pregnancy, if it is not absolutely necessary, or via painful means. It, therefore, supports abortion only if it absolutely must be done to protect the mother, early in the pregnancy, and via painless or near painless means. According to Mel Thompson (2008, pg. 1): As is the case with many issues in a utilitarian system, the rightness or wrongness of the act in question turns mainly not on the effects of the act on the agent, nor on the being(s) directly affected by the act, but on the less direct effects on the community at large. The issue of abortion, stripped of the language of "rights" and emotional sway over "murdering babies", actually becomes one of the desirability of increasing or decreasing the population. In utilitarian terms, a general prescription either for or against reproduction is very hard to justify: each case would have its own relevant and specific features. For example, it could be argued that all the many man-made problems in the world do not suggest that good people (i.e. the kind of people who would be influenced by ethical considerations) should not reproduce - but rather that they should reproduce, to (in the longer term) increase the number of people trying to fix all these problems. Essentially, Utilitarianism is pro-choice. It takes a look at the whole picture and takes everything into consideration when it comes to whether or not to seek abortion. If abortion is the best possible solution considering the outcome of the mother and the fetus, then it is chosen. Classic utilitarianism, however, is not consistent with pro-choice. Pro-choice is more in line with Kant or Natural Law. According to the words of RSRevision (2008, pg. 1), "Mill can be seen as arguing for rule utilitarianism, saying we should give freedom of choice to all people. Rule utilitarianism says that we should make rules that bring about the greatest good. I don't think this is Mill's point, however. Either way, a utilitarian response should accept that it may in some circumstances be right to deny a woman the right to choose to have an abortion if doing so would bring about the greatest good." Utilitarianism calls into question a number of ethical theories and general issues that should be considered. Among these are Situation Ethics, Virtue Ethics, Abortion, Euthanasia, Natural Law, Kant's Ethical Theory, Situationalism, and Religious Response (RSRevision, 2008). There are certain law cases that have affected abortion in the United Kingdom. First of all, there is the Abortion Act of 1967. This allowed a woman to undergo the process of abortion up to 28 weeks into her pregnancy, "provided that the approval of two doctors was given, and if continuing the pregnancy threatened the life, physical or mental health of the mother or the physical or mental health of existing children, or if there was substantial risk that the child would be born with serious physical or mental handicap" (Mel Thompson, 2008, pg. 1). There was also the Human Fertilisation and Embryologoy Act of 1991. This Act said that a woman could only have an abortion if she was 24 weeks into her pregnancy unless her life was in danger or if the baby was in danger of being handicapped. Perhaps the key to doing the right thing in any case is to thoroughly understand the ethical theories and their implications. Utilitarianism is not only important on a personal level, but it is crucial to the ethical behavior of doctors and nurses. According to Mel Thompson (2008, pg. 1): Autonomy of the individual is a key consideration here. Doctors should not be allowed to follow their own wishes, or research interests, in determining treatment. Patients come first: that is basic to framing professional ethics of all sorts. But can 'the wishes of a patient' necessarily always be followed What is the patient seeks his or her own harm The difficulty is in establishing criteria which all can accept for what constitutes benefit of harm. Utilitarianism only works if one can assess the results of an action, and decide whether or not, on balance, they are to the advantage of all concerned. Hence, a utilitarian will consider the preferences of the mother, in the case of abortion, along with the potential harm to other children in the family, for example. This brings up an important limitation to Unitarianism. The process requires that an individual practice careful and unbiased judgment. It would be very easy for a person's own experiences to interfere with his or her judgment in a case like this. He or she must be completely detached for it to work (Mel Thompson, 2008). Liberalism According to the Stanford Encyclopedia of Philosophy (1996, pg. 1): 'By definition', Maurice Cranston rightly points out, 'a liberal is a man who believes in liberty' (1967: 459). In two different ways, liberals accord liberty primacy as a political value. (i) Liberals have typically maintained that humans are naturally in 'a State of perfect Freedom to order their Actionsas they think fitwithout asking leave, or depending on the Will of any other Man' (Locke, 1960 [1689]: 287). Mill too argued that 'the burden of proof is supposed to be with those who are against liberty; who contend for any restriction or prohibition. The a priori assumption is in favour of freedom' (1963, vol. 21: 262). Recent liberal thinkers such as as Joel Feinberg (1984: 9), Stanley Benn (1988: 87) and John Rawls (2001: 44, 112) agree. This might be called the Fundamental Liberal Principle (Gaus, 1996: 162-166): freedom is normatively basic, and so the onus of justification is on those who would limit freedom, especially through coercive means. It follows from this that political authority and law must be justified, as they limit the liberty of citizens. Consequently, a central question of liberal political theory is whether political authority can be justified, and if so, how. It is for this reason that social contract theory, as developed by Thomas Hobbes (1948 [1651]), John Locke (1960 [1689]), Jean-Jacques Rousseau (1973 [1762]) and Immanuel Kant (1965 [1797]), is usually viewed as liberal even though the actual political prescriptions of, say, Hobbes and Rousseau, have distinctly illiberal features. Insofar as they take as their starting point a state of nature in which humans are free and equal, and so argue that any limitation of this freedom and equality stands in need of justification (i.e., by the social contract), the contractual tradition expresses the Fundamental Liberal Principle. Another supporter of Liberalism is Hobbes. He accepts it in a literal context. Perhaps the better reason he can be considered a liberal is that he supports the justification of the limitations of liberty. Locke also supports Liberalism, but he does it in a paradigmatic fashion by supporting the Fundamental Liberal Principle. He also holds that the justification of the limitations of liberty is modest. This lead to John Rawls saying, "Each person is to have an equal right to the most extensive system of equal basic liberty compatible with a similar system for all' (Stanford Encyclopedia of Philosophy, 1996, pg. 1). There is also the economic concept of Liberalism, which is known as Neoliberalism. This term is used to represent capitalism and free trade. The term is also used as an alternative term for globalization. However, this may not be a proper term, since globalization is new, but free markets and international free trade are not (Paul Treanor, 2008). According to Paul Treanor (2008, pg. 1): Neo-liberalism is a set of economic policies that have become widespread during the last 25 years or so. Although the word is rarely heard in the United States, you can clearly see the effects of neo-liberalism here as the rich grow richer and the poor grow poorer....Around the world, neo-liberalism has been imposed by powerful financial institutions like the International Monetary Fund (IMF), the World Bank and the Inter- American Development Bank....the capitalist crisis over the last 25 years, with its shrinking profit rates, inspired the corporate elite to revive economic liberalism. That's what makes it 'neo' or new. Liberalism is associated with an element of violence: The Genoa Summit. It is apparent that some of its supporters believed so much in its benefits that it attempted to force it on people (West, 1999). According to the wisdom of West (1999, pg. 1), "The general functionalist starting premise is only modified to the extent that the "system" is comprehended as capitalist, in a specific way "form-determined". The state and the political system function as a form of an 'ideal all-around capitalist', who must uphold not just the society as such, but the 'capitalist element'. The different forms of state interventionism are explained both as an expression of functional needs of the accumulation and reproduction process of capital." West compares the relationship that exists between democrats and republicans to that which exists between those who support the free market and those who do not. He even goes so far as to call the two opposing parties enemies, saying that it is not possible for a compromise of any type to exist between the two. Hence, he says, the use of force as in the aforementioned example, even though the act itself was incredibly absurd (Peterson, 2008). According to Nathan Harden (2008, pg. 1), "Liberalism as a coherent social philosophy dates from the late 18th century. At first there was no distinction between political and economic liberalism (economics was not considered a separate discipline until about 1850). Classic liberal political philosophy has continued to develop - after 1900 as a purely conservative philosophy. Liberalism is based on basic principles, according to Nathan Harden (2008, pg. 1). These are: Liberals believe that the form of society should be the outcome of processes. These processes should be interactive and involve all members of society. Liberals therefore reject any design or plan for society - religious, utopian, or ethical. Liberals feel that society and state should not have fixed goals, but that 'process should determine outcome'. Liberalism is therefore inherently hostile to competing non-liberal societies - which it sees not simply as different, but as wrong. Nevertheless liberalism has compromised with one specific form of non-liberal ideology: nationalism, in the ethno-national form which underlies most present nation states. Liberals define liberalism itself as 'freedom', so they rarely think consent is required for the imposition of a liberal society. Classic political liberals reject the idea that there are any external moral values: they say that there are only opinions. The liberal rejection of external moral values is formally expressed in the liberal idea of human rights: both good and evil humans have equal rights, which apply equally when they facilitate good or evil actions. Liberals believe in formal equality among participants in a liberal society, but almost all liberals also believe in inequality of talent. Nathan Harden also sums up the ethical principles of Neoliberalism, which goes along with abortion as follows. He believes that people should: act in conformity with market forces within this limit, act also to maximise the opportunity for others to conform to the market forces generated by your action hold no other goals Perhaps the author West (1999, pg. 1) best sums it up by stating, "A woman's right to an abortion, McDonagh argues, should be understood as a right to defend herself against the nonconsensual invasion, appropriation, and use of her physical body by an unwelcome fetus, rather than as a right to choose medical procedures free of interference by the state. Nathan Harden (2008, pg. 1) offers up an example of a woman that regrets having an abortion. She even went so far as to commit suicide after stating her regrets. She left a suicide note stating her regrets. Conclusion There are virtually no laws in the United Kingdom limiting abortion. This is regardless to the existence of Unitarianism and Liberalism. Therefore, it can be said that that the United Kingdom is more or less liberal in its abortion beliefs and practices. References Abortion. (2008). Utilitarian.org. Retrieved August 21, 2008, from http://www.utilitarian.org/abortion.html Abortion and euthanasia-some moral issues. (2008). Mel Thompson. Retrieved August 21, 2008, from http://www.mel-thompson.co.uk/Abortion%20and%20euthanasia.htm Abortion law tightening in the U.K. (2008). Nathan Harden. Retrieved August 21, 2008, from http://nathanharden.wordpress.com/2008/03/16/abortion-law-tightening-in-the-uk/ Ethical responses to abortion. (2008). RSRevision. Retrieved August 21, 2008, from http://www.rsrevision.com/Alevel/ethics/abortion/ethics.htm Liberalism. (1996). Stanford Encyclopedia of Philosophy. Retrieved August 21, 2008, from http://plato.stanford.edu/entries/liberalism/ Neoliberalism: Origins, theory, definition. (2008). Paul Treanor. Retrieved August 21, 2008, from http://web.inter.nl.net/users/Paul.Treanor/neoliberalism.html Peterson, J. (2008). Abortion-A liberal cause Peterson. Retrieved August 21, 2008, from http://groups.csail.mit.edu/mac/users/rauch/nvp/consistent/peterson.html Utilitarian philosophers. (2008). Utilitarian.net. Retrieved August 21, 2008, from http://www.utilitarian.net/ Utilitarianism. (2008). BLTC. Retrieved August 21, 2008, from http://www.utilitarianism.com/utilitarian.htm West, R. (1999). Liberalism and abortion. Georgetown Law Journal. Retrieved August 21, 2008, from http://findarticles.com/p/articles/mi_qa3805/is_199906/ai_n8877364 Read More