#jonathan herring

Ethics of Care and the Public Good of Abortion - Jonathan Herring*

As the focus of this article is on its application to abortion, only a very brief overview of ethics of care can be offered here. Joan Tronto summarizes ethics of care in this way:

...a set of moral sensibilities, issues and practices that arise from taking seriously the fact that care is a central aspect of human existence...a species activity that includes everything that we do to maintain, continue and repair our ‘world’ so that we can live in it as well as possible. That world includes our bodies, ourselves and our environment, all of which we seek to interweave in a complex, life-sustaining web.3

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Ethics of care is based on the belief that people are relational. People understand themselves in terms of their relationships. Their well-being is deeply tied up with the well-being of others. If good things happen to those they are in a positive relationship with, then that is good for them.9

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Conceiving of the foetus on its own terms fails to capture the fact that it is integrated into the woman. The traditional presentation is some kind of fairy tale image that the woman provides a cosy sitting room for the foetus to live in, awaiting birth. But the woman is not simply a ‘foetal container’.31 Barbara Katz Rothman writes:

the reigning medical model of pregnancy, as an essentially parasitic and vaguely pathological relationship, [which] encourages the physician to view the fetus and mother as two separate patients, and to see pregnancy as inherently a conflict of interests between the two. Where the fetus is highly valued, the effect is to reduce the woman to what current obstetrical language calls the ‘maternal environment’.32

The reality is that all interaction and dealings with the foetus must be mediated through, and with, the woman. Pregnancy is utterly relational.

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Wanted pregnancies are caring, and therefore of the highest moral value. We need to protect them through the criminal law from unwanted termination, and to recognise the goodness of them. By contrast, unwanted pregnancies lack moral value as these involve coerced care, which may well impede other wanted caring relationships. As Bryon Stoyles puts it:

Relational accounts of fetal value allow that pregnancies have whatever meaning and value they are given by the pregnant woman. Thus, relational accounts allow that pregnancy can have little or no positive value and also that pregnancy can have great value.42

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The relational ethics of care approach would focus on the question of what obligations flow from the pregnancy, given that it is unwanted, and so will not be marked by the reciprocity and mutuality required for a relationship to be caring. Given that a parent is not obliged by the law to give organs, or to even suffer the prick of a needle to give some blood in order to save the life of their child, it is inconceivable that the law could require a woman to go through pregnancy and birth for a foetus in order to promote a caring relationship. The law is not in the business of coercing relationships through threat of legal sanction, as that undermines the very goodness of a mutually respectful caring relationship.

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The problem with the traditional understanding of the foetus is well captured by Hannah Roberts, a Lecturer in Law whose eight month pregnancy was terminated through a car accident. She writes:

The current law’s attempt to answer this riddle is a clumsy one. It characterises our daughter’s death as one of my ‘injuries’, because she died in utero, and was not a legal ‘person’ with a separate existence from me at the time she died. Calling our loss an ‘injury’ fails to acknowledge the depth of sorrow involved in grieving a child. 59

Yet she goes on to express nervousness for saying her foetus was a person or a child, for fear that that would negatively impact on abortion rights. This is also captured by the writing of Victoria Browne, arguing that miscarriage is ‘disenfranchised grief’. She acknowledges that there is a concern that:

if one were to acknowledge that there was something of value lost, something worth grieving in a miscarriage, one would be conceding ground to antiabortion or ‘pro-life’ arguments.60

An ethics of care approach provides a way around this dilemma. We can recognize that, in the case of a wanted pregnancy, there is a caring relationship which the state has a duty to support and protect. However, in the case of an unwanted relationship, the state has a duty to provide abortion to ensure there is no coerced relationship, which would be the antithesis of care. Further, by providing abortion, the state promotes caring relationships – the current caring relationships the woman has; the care for any child the woman later has; and care for herself. We can, on this understanding, have a law which offers a liberal approach to abortion, yet is able to provide powerful criminal sanctions against those who terminate a pregnancy without consent, and to acknowledge the serious loss in an unwanted miscarriage.

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Third, the presentation of abortion as a matter of choice or control tends to privatise the matter. As Petchesky explains, this ‘lets men and society neatly off the hook’. 61 While the choice/control language creates a powerful liberty claim, it fails to make the case for positive rights to abortion. As Lisa Smyth notes: