Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, January 22, 2013

Why Is There So (Relatively) Little Good Scholarly Work on Abortion?

A thought (or just a hypothesis) for the day: For a topic that has convulsed American law and politics since 1973, the abortion issue has produced a surprisingly meager scholarly literature. This came to me when I was selecting readings for a seminar in law and bioethics, which I teach from time to time--it turns out it's hard (at least much harder than I expected) to find good resources on the topic. I don't mean to suggest, of course, that there has been nothing worthwhile written on abortion. Judith Jarvis Thomson's article about the kidnapped violinist in "A Defense of Abortion" (1970) remains a classic pro-choice argument, and our own Robby George, his mentor John Finnis, and John Keown (another Finnis student) have produced powerful defenses of the pro-life position. Then-Professor John Noonan's edited collection The Morality of Abortion: Legal and Historical Perspectives (Harvard, 1970) includes Noonan's own "An Almost Absolute Value in History" and Paul Ramsey's "Reference Points in Deciding about Abortion." (Note that Thomson's article and the Noonan collection are all pre-Roe and now over 40 years old.) Will Saletan's Bearing Right (California, 2004) was an interesting read about the politics of the pro-life movement, Mary Ann Glendon's Abortion and Divorce in Western Law (Harvard, 1989) is a wonderful comparative study, and my colleague Joe Dellapenna published a 1300-page survey of the history of abortion, Dispelling the Myths of Abortion History (Carolina Academic Press, 2006).

I am leaving a lot out that I could mention from many quarters (McMahan, Kaczor, Beckwith, eg), but, even so, this strikes me as a relatively small output of literature for a topic of such prominence. Law review articles working through the weeds of legal doctrine on abortion strike me as less common than one might expect (Jessie Hill's, Naomi Cahn's, and Reva Siegel's work on the pro-choice side, Mark Rienzi's, Michael Paulsen's, and Helen Alvaré's work and articles such as Stephen Gilles's "Roe’s Life-or-Health Exception: Self-Defense or Relative-Safety?," 85 Notre Dame L. Rev. 525 (2010) on the pro-life side being notable exceptions--again, leaving out some other candidates). Why is this? Are the arguments on each side now so well-rehearsed and known that there is little new--since, say, the initial outburst of literature in the early 1970s--to say on the topic? Are the terms of the abortion debate (sanctity of life, equality, liberty, autonomy) themselves so intractable that, as Alasdair MacIntyre suggests in After Virtue, abortion is merely one manifestation of the incommensurability in moral argument that afflicts our culture? And so writing on the topic--certainly writing in the hope of persuading those readers who disagree--is usually not worth the effort?


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Michael Moreland,

You ask: "Are the arguments on each side now so well-rehearsed and known that there is little new--since, say, the initial outburst of literature in the early 1970s--to say on the topic?"

It is presumptuous of me to answer, since I am not nearly as familiar with the literature as you are, but based on what trickles down into more popular articles and blog discussions, it seems to me the topic is either exhausted, or we need a few truly original thinkers to see the issues from a totally different perspective. And of course I don't know what that perspective could be. I am still dumbstruck by the number of pre-embryos that die a few days after conception (even before implantation), and I think no one has come to grips with that yet, but if personhood truly begins at conception and most "people" die before implantation, that doesn't justify abortion. It just pokes a great big hole in the explanatory power of Christianity. When Jesus said, "He who has ears, let him hear," it used to be apparent that he meant *everyone.* Now apparently (if personhood begins at conception) perhaps the majority of "people" never have ears at all and never have a chance to hear the Gospels or receive the sacraments.

The only thing I have read recently that really struck me was in Charles Camosy's book about Peter Singer when Peter Singer rejects the Famous Violinist Argument with the opinion that it is not too much to ask of someone to allow themselves to be connected to another person for a limited time to save that person's life. It did make me realize what others may no doubt consider obvious and that is what most women who seek an abortion presumably do not want is *pregnancy and childbirth.* Babies can be given away. In fact, many women who have abortions could have people seeking private adoptions pay all their expenses for pregnancy and childbirth. But that wasn't really an insight on my part. It was a reaction to something I have always known but just seen from a slightly different angle.

Posted by: David Nickol | Jan 22, 2013 5:46:40 PM

I thought that Ronald Dworkin's _Life's Dominion_ was good, though not fully satisfying.

Posted by: Matt | Jan 22, 2013 7:38:15 PM

The margins of my copy of Life's Dominion are filled with expletives. Or at least with combined question and exclamation marks.

Posted by: Steve Smith | Jan 23, 2013 6:54:20 AM

For what it's worth, I'm not sure your premise is right. That is, that there's little work done on abortion by Christian scholars.

If you look at things historically, issues tend not to get much discussed, let alone clarified and defined, until they are placed in question.

Take marriage for example. It's a sacrament, and there's hardly a major volume or treatise in the history of theology. A few short works by Augustine and some other early thinkers. Almost nothing in the modern world.

Anybody working on marriage is essentially working in the age of Nicaea, if you catch my meaning.

Same goes for abortion and contraception really. Some people complain the arguments are already old. Hardly. They've only just begun.

Posted by: Joey Ramone | Jan 23, 2013 10:26:18 AM

David Boonin-Vail's *A Defense of Abortion* is a major contribution to the philosphical literature. Also of importance is work in analytic metaphysics and philsophy of mind (concerning synchronic and diachronic identity, indvidiuation, modality, intentionality, mereological relations) that bears on our understanding of personhood. For example, Russel DiSilvestro's *Human Capacities and Moral Status* is a dissertation turned book that builds on current work in analytic metaphysics to defend a capacities approach to moral valuation (the disseration is available at Scribd.com http://www.scribd.com/doc/77306401/DiSilvestro-Russell, while the book is previewable at http://books.google.ca/books/about/Human_Capacities_and_Moral_Status.html?id=Q99lcaOUf24C&redir_esc=y The prominent pro-choice philosopher Michael Tooley was one of his dissertation committee advisors). It's conclusion implies a broadly pro-life view, though the morality of abortion is not the central concern of the book.

At the risk of saying something obvious, I note that philosphers and legal scholars may or may not follow each other's work. In graduate school, I read much of the philosphical work on the morality of abortion, but did not study much of the legal, cultural and technological history.

Posted by: Clement Ng | Jan 23, 2013 2:48:58 PM

I was going to mention Boonin-Vail's book, but accidentally posted before I'd meant to. I've not read it, so can't say anything about it's virtues, but it's received good press and good reviews, so is perhaps worth looking at.

Posted by: Matt | Jan 23, 2013 4:58:18 PM

Another relatively recent work that struck me as somewhat innovative is Jeffrey Reiman's 1998 _Abortion and the Ways we Value Human Life_; he also sparred with Finnis & George on this issue in the 2000 book _Natural Law and Public Reason_, presenting there a good summary of the view presented in more detail in his own 1998 book. I think his argument there actually was a more sophisticated step above Mary Anne Warren's argument based on personhood, and even slightly above David Boonin's approach, though has not gotten nearly as much attention as these others.

Posted by: ScottF | May 2, 2013 5:08:32 PM