The Irish Pro-Choice Vote and Empathy

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Posted in: International Law

About ten years ago, I received an email asking what I thought about abortion in animals. The email came from a prominent pro-life Catholic who had been exchanging messages with me for months, a man I will call Nicholas. Nicholas believed that my discussion of religious issues in my work, while incorrect in its normative conclusions, provided a more generous characterization of opposing viewpoints than that which he often found in the writing of other commentators who shared my views.

Nicholas’s email messages would usually arrive a few weeks after I had published a column on a topic of interest to him. He would point out what he believed were weaknesses in my arguments, and he would invite me to do the same vis-à-vis his arguments. I frequently write about abortion and animal rights, so his question about abortion in animals was not as strange as it might sound.

The Irish Vote

The Irish vote on abortion reminded me of Nicholas’s question about animal abortions, for reasons I will explain below.

The Irish voted by a decisive majority of over 66 percent to repeal Amendment 8 of its Constitution. Amendment 8 prohibits virtually all abortions save for those necessary to meet an imminent threat to the pregnant woman’s life. Pro-choice women (and men) celebrated the end of Amendment 8, while pro-life Irish citizens viewed the vote as an abandonment of the most vulnerable Irish people, unborn babies.

I have pro-life Facebook friends who reacted in real time to exit polls about the abortion vote. They were very unhappy and thought the repeal would induce shame in future generations. Though I am pro-choice, I felt empathy for those on the other side. I know what it feels like to be conscious of unjustified violence against beings whose personhood others see fit to dismiss. As an ethical vegan, I encounter this regularly.

When trying to persuade someone of my point of view, I tend to offer analogies that might trigger a new moral intuition. That is why I now thought of Nicholas’s question about animal abortion. Nicholas knew that I cared (and still care) about animals. Caring about animals would presumably mean that I would oppose their abortion. If so, should I not equally oppose the abortion of humans? Nicholas was trying to help me empathize with unborn humans.

Empathy Gap

Before taking up the question of animal abortion, we need to consider the empathy gap in conversations between pro-choice and pro-life interlocutors. No matter what position one takes on when “life” begins, one inevitably embraces one or another arbitrary line. The boundary between non-personhood and personhood is fuzzy, but everyone selects a moment as if the boundary were clear and sharply demarcated. And each side is aware of how the other’s line is arbitrary but can be somewhat oblivious about the tenuousness of its own.

The reason that we cannot avoid arbitrariness is that if we really wanted to go back to the very beginning, we would have to say that human egg cells and sperm cells are “persons,” because in each other’s presence, they will do what it takes to grow into a human baby. When I was an Orthodox Jew, I remember learning that male masturbation was impermissible and that “spilled seed” from the inevitable nocturnal emissions and lost eggs in menstruation generated impurity and required the man or woman to bathe afterwards in a ritual bath (with refinements on timing that heavily favored men). The impurity, I was told, was a feature of any death.

If there is a logic to these classifications, it appears to have something to do with the perception of a sperm cell or an egg cell as a human organism of sorts whose loss qualifies as a “death.” The death of nearly a million skin cells that humans shed constantly, by contrast, do not similarly generate the impurity of a “death,” or observant Jews would have to visit the ritual bath perpetually.

I may be wrong in my construction of the religious rules that surround nocturnal emissions and menstruation. Others have opined that classifying these things as impure increases the odds of intercourse during fertile periods, a benefit for the DNA involved. Of course, this may be true (and may thus have survival value), and I may be correct about the meaning of the rules as well.

In any event, we could treat a sperm cell or an egg cell as a person whom we may not kill. I have heard more than once that my grandmother, whom I never met, carried me in her womb, because my mom had all of the eggs she would ever have in her ovaries while she was a fetus. If “I”—that is, the ovum that was to become my person—was there inside my grandmother’s body, then life must begin at oogenesis. An egg is a person, and menstruation should be treated as a homicide by omission.

Most people dismiss as absurd this notion that all reproductive cells are persons (“every sperm is sacred”). A lot more has to happen before they have the qualities that make something a person worthy of rights. But how much more?

Pro-life advocates say fertilization is the key moment because—from a scientific perspective—the fertilized egg has all of the chromosomes that it will ever have. But a cell from your face also has that. Yet no one claims the latter is a person.

The back-and-forth is predictable and well worn. The pro-life advocate says that the face cell is not programmed to grow into a fully-realized human being. The opponent responds that a somatic cell might some day be subject to such programming and, anyway, the prediction of what the cell will become implicitly acknowledges that the zygote is a potential person but not yet an extant person.

The pro-life advocate will fire back that if the zygote is not a human, then what is it, a zebra? The pro-choice advocate notes that a zygote is very likely to die before developing into a baby. It can also divide into two zygotes to make twins. A unique person cannot ordinarily cannot turn into two.

Rather than expand upon or tread over such territory, I think it is fair to say that most people without a religious conviction to that effect would reject the view that killing a zygote is the moral equivalent of killing a newborn baby. Yet those who say “life” begins at birth are also drawing an arbitrary line.

For them, the challenging case is the hypothetical abortion set to take place the day before a baby is born. Could anyone truly say that the being in question—a fetus set to emerge from the pregnant woman tomorrow—is less than a full moral person? If so, what about her makes her less than a newborn baby?

Such a fetus might be more cognitively developed than her newborn cousin, because her cousin was born at 37 weeks, and she is late and set to be born in week 42. Like her cousin, she is capable of feeling pleasure and pain, comfort and discomfort, and she can take in her surroundings in other ways as well. She is located inside a woman’s uterus, but her moral status and the qualities that give her that status cannot rationally turn on where she resides.

People at some level know their own weak points. This may be why pro-life people campaigning against the repeal of Amendment 8 featured references to late fetuses and babies rather than emphasizing the plight of four-celled pre-embryos. And that may also be why pro-choice people campaigning for the repeal of Amendment 8 highlighted women’s right to control their reproductive lives rather than the unimportance of late fetuses.

I would have highlighted women too, if I were campaigning for the repeal of Amendment 8, not because I believe that “life” begins at birth and that the only moral person in the equation is the pregnant woman. I would highlight the woman because I share the feminist view that as with real estate, so with abortion, location is everything. So long as an entity—whether a human being, a nonhuman animal being, or a bacterial or fungal infection—is located inside a woman’s body, the woman is entitled to remove that entity from inside her body, even if its removal entails death.

If the woman can remove the unwanted entity without killing it, then we can talk about the status of what or whom she wishes to remove. That part is my own take on the “viability” line in the Supreme Court’s abortion doctrine—I believe that a truly viable and sentient fetus should generally be removed alive, if possible. If a woman cannot remove the embryo or fetus alive, if it (or he or she) requires the use of the woman’s womb and circulatory system to continue living, then her right to remove what she no longer wants inside her body must trump the right to use her body to continue living.

No one is entitled to use another’s body against the will of the latter, even if such use is necessary to the continued life of the former. If such use were permissible, then the government could compel blood, kidney, and partial liver donations.

Though I believe this to be true, I nonetheless feel most uncomfortable with the implications of my position when the fetus at issue has become sentient and is not yet viable. Sentience is what, in my view (and as Michael Dorf and I explain in Beating Hearts: Abortion and Animal Rights) distinguishes between “something” and “someone,” between human or animal tissue and a human or animal moral person who is subjectively aware of things and is accordingly entitled to moral consideration.

If the woman whose fetus is sentient but not yet viable wants to remove the fetus from her body, my position says that she may do so and may kill the fetus in the process, even though the latter at that stage is a being with subjective awareness. I bite the bullet on this, but I strongly favor a decision to terminate the pregnancy at an earlier, pre-sentient phase. If someone speaks of such a late abortion as a non-event and defends that position by asserting that the fetus is not yet a “person” with rights because it hasn’t been born, I find I cannot agree.

I dislike when “my side” of a debate exhibits callousness or an inability to appreciate the moral cost of their position. And there is nothing about a late-term fetus in isolation that gives rise to a right to kill it (or him or her). Post-sentience, the right to abortion should turn exclusively on the bodily integrity of the pregnant woman. A fetus’s sentience makes it morally equivalent to a newborn baby and, in my view, to a nonhuman animal. That is my position on abortion.

Abortion in Animals

So this brings us back to the animal abortion question. In the case of animals, virtually all abortions happen because a farmer has some reason to think that “his” mammal’s babies would not be profitable to him. The farmer’s decision to perform an abortion on a nonhuman animal, like his decision to do other invasive, harmful, and even lethal things to a nonhuman animal, has little to do with the interests of the animal herself.

The animal does not choose it, and she cannot prevent it. The notion that I might support abortion in such cases displays confusion about why I am pro-choice (rather than, say, “pro abortion”) and what the billions of animals who live under human “dominion” endure. And if the fetuses inside the pregnant animal are already sentient, then that provides one or several more reasons for the act’s immorality. Unless the pregnant animal medically needs the abortion for some reason, it is indefensible.

Feeling misunderstood about animal rights brings me back to experiencing empathy for the pro-life advocates who learned that the Irish voted to reject their position. Supporters of Amendment 8 in Ireland felt alienated by an overwhelming number of their countrymen and countrywomen. It may have felt to pro-life advocates like pro-choice citizens had voted to demote fetuses from the status of persons with the same right to life as the pregnant woman to the status of objects for the woman to unceremoniously terminate. As I said, I know what it feels like to have the target of one’s concern dismissed as a non-person.

An Empathic Understanding of Opponents

Though it may not be a source of much comfort, it is nonetheless true that at least some of the pro-choice Irish voters had no intention of demoting the fetus. They may even share the belief that a zygote or an embryo is the moral equal of a newborn baby. They voted as they did because they reject the idea of forcing women in Ireland to be living respirators against their will.

In the same spirit as I offer this account of the Irish vote, I must acknowledge that many of the pro-life supporters of Amendment 8 are motivated by their sense of empathy for the embryo or fetus growing inside a woman. They, unlike other abortion opponents, may wish to see women supported and treated as the equals of men. They, unlike some of their “teammates,” do not intend to use the fetus as a vehicle for forcing women to conform to some biologically preordained female role. They are not, in other words, misogynists.

When I was anticipating the Irish vote, I was asked for a quote about it. At the time, I was worried that Ireland would hold onto its nearly complete ban on abortion, so I said something along the lines of “Ireland now has the opportunity to reject a legal regime that is better suited to the Republic of Gilead than to the Republic of Ireland.” On reflection, I see that this was an ungenerous description of the vote.

I was assuming that it would take a misogynistic theocracy (or those who find such a prospect attractive) to vote “no” on the repeal of Amendment 8. And many of those who either did vote “no” (or would have if they were Irish) have likewise assumed the worst about the people who voted “yes,” attributing to them a callous indifference to the most vulnerable people in Ireland (embryos and fetuses). Both sides could benefit from trying to view the issue through each other’s eyes.

Returning to Animals and Empathy for Opponents

Those of us who daily confront the consequences of staggering violence against billions of sentient beings whom we call “animals” may have the hardest empathy job of all. We must empathize with those who use the bodies and secretions of friendly, curious, feeling beings as though they were the moral equivalent of an apple or a bag of peanuts. We must feel understanding for people who regularly, by their actions and sometimes by their speech, dismiss the powerful moral case for veganism.

Unlike in the context of those who oppose or support the right to abortion, the strategy must be different for vegans coping with the dismissiveness of non-vegans. In the former case, we need to sometimes take our opponents at their word and follow their arguments for why they believe what they believe. In the context of empathizing with non-vegans, however, the best strategy for vegans might be to understand their arguments for using animals as pretextual rather than sincere.

Vegans must, of course, respond well to arguments against veganism, because people are regularly swayed by bad arguments in the mouths of an overwhelming majority of the population. In that spirit, I wrote Mind If I Order the Cheeseburger? And Other Questions People Ask Vegans. We need to remain cognizant, however, of how belief systems work when humans act on those belief systems first and acquire the belief systems second.

In such circumstances, people are engaging in behavior predicated on an idea about morality even though they have yet to think critically (or at all) about that idea of morality. Almost all non-vegans, for instance, were acting “as if” farmed animals’ and fishes’ lives counted for nothing (by eating and/or wearing those animals, etc.) before actually thinking about animals’ worth. Non-vegans were therefore already representing a client—their own longstanding habits—before they had thought about whether the client’s case had any merit.

Accordingly, when non-vegans say that only those with the capacity to speak should have the right to live, it is best to understand that they are saying this because they are trying to come up with some way to distinguish nonhuman from human animals. They likely do not honestly believe that one needs language to be entitled to live. And when they say that humans created farmed animals for slaughter and may therefore slaughter them, we can feel empathy if we assume that they say this because they want to eat and use animal products, not because they sincerely think that we can slaughter or mutilate anyone we have created for that purpose.

Likewise, it may be best to assume that when non-vegans say that humans who lack reason can live while farmed animals who (are presumed to) lack reason cannot, because the unreasoning humans are part of the same species as the reasoning ones, they do not actually believe that being in the right genetically defined group entitles you to take what belongs to another group. They simply want to eat a (non-vegan) grilled cheese sandwich.

After encountering (and hopefully having the opportunity to respond to) these and other thin arguments defending the use and slaughter of animals, it is incumbent upon vegans to remember why people are making the arguments they make. By contrast to most circumstances, when we empathize by crediting the words of our opponents, here the knowledge that an opponent is using pretextual reasoning can blunt the depressing impact of imagining that friends and loved ones are truly committed to such ideas (putting to one side the “look at my canines” argument).

Many non-vegans understand, at some level, that the consumption of animal products is morally indefensible. The ultimately silly arguments they make for their conduct will thus come to an end some day, and people—including young children—will wonder how anyone could have willingly participated in such atrocities against our fellow earthlings. As with most prejudice against those who are “different,” our attitude toward nonhumans will come to seem like the invidious breakdown in empathy that it is.

Until then, we can be charitable and empathic toward non-vegans and assume that few really believe what they say about what they do. And, perhaps with greater ease, we can feel empathy for the competing views about abortion that animated the recent Irish vote.