why assisted dying and full-term abortion do not further individual freedom
a philosophical long-read about last week's parliamentary developments
On Friday, the House of Commons voted in favour of the assisted dying bill. The central aim of this bill is to “allow adults who are terminally ill, subject to safeguards, to be assisted to end their own life”. The bill will now pass to the House of Lords for consideration, but the chances are high that it will become law in England and Wales. This isn’t the only morally-freighted news to have come out of the House of Commons in the past week, however.
Last Tuesday, MPs voted for an amendment that would entail “the removal of women from the criminal law related to abortion”, such that “no offence is committed by a woman acting in relation to her own pregnancy”. This will also now pass to the Lords. But if the amendment becomes law, which again is likely, it’d mean that while medics would remain bound by current legal constraints, women in England and Wales would no longer be criminally liable for undergoing or self-administering abortions beyond the limits set by the law — at any stage of pregnancy, and regardless of their reasons.
At the extreme, therefore, this would include a woman undertaking a full-term abortion in order to discover what the experience felt like. Or to satisfy her preference for killing foetuses. Perhaps you think I’m being alarmist by focusing on such extreme examples, but it’s important to acknowledge the full extent of the changes this amendment would bring about. After all, the already relatively permissive 24-week limit in England and Wales was explicitly set to track the lower bound of foetal viability, having been decreased from 28 weeks in 1990 following “advances in neonatal intensive care”. Any exceptions to this limit are currently contingent on severe medical concerns about the mother or the foetus.
I’ve written about assisted dying here before, and I’m sure I’ll write about it again. I’m sure I’ll write about abortion again, too. After all, as technology continues to develop, and new possibilities for both extending life and ending life arise, some of the parameters in which we undertake ethical inquiry will change, and we will be forced to reconsider some of our previous conclusions. Certain fundamental truths about basic values — values like freedom, and equality, and justice — will stay the same, however. It’s in this context of searching out fundamental truths that today I’m going to focus specifically on the interrelation of assisted dying, the abortion of full-term foetuses, and freedom.
Both of last week’s parliamentary developments have been presented as furthering individual freedom. They’ve been presented in this way by their supporters, who see increased access to assisted dying and abortion as part of an emancipation narrative. And they’ve been presented in this way by their detractors, who see increased access to these services as “mindless libertarianism”. In other words, there are people on both sides who believe that individual freedom has been furthered by last week’s developments — for better, and for worse.1
I think this is a bad characterisation, for two main reasons.
The free agency argument
First, and most fundamentally, this is a bad characterisation because both assisted dying and full-term abortion are aimed at terminating living things that have the capacity for free agency. By this, I mean the capacity to make reasoned decisions about how to act, and to act on those decisions.2 Having this capacity is a distinct feature of being a human. It’s also a morally-relevant one. Minimally, this is because free agency affords moral responsibility: if you’re capable of acting on reasoned decisions, then you’re capable of being held responsible for some of your actions. Free agency affords wider moral value, however, because if you’re capable of making and acting on reasoned decisions, then you’re also capable of attaining, and striving to attain, certain basic human goods, including achievement and fulfilment.3
The capacity for free agency clearly looms heavy in the case of assisted dying — at least as presented in the assisted dying bill — because the goal of assisted dying is ending the lives of consenting adults.4 Free agency is also relevant to the case of full-term abortion, however. I don’t want to get into a debate here about the point at which the ‘thing’ a woman gestates becomes a human. (Sorry, I’m using the term ‘thing’ to remain as morally neutral as possible.) But I’m happy to accept that typical full-term foetuses, who are by definition able to survive as babies on leaving the womb, do count as humans, at least in the sense of having this capacity for free agency.
Sure, foetuses are seriously constrained in exercising any kind of agency while in the womb — even the basic agency required to be causally responsible for moving their limbs. And sure, the kind of agency that babies and children exercise is seriously limited in comparison to the agency exercised by typical adults. It takes practice and guidance to develop the reasoning power that’s required to fully exercise free agency!
But babies and children nonetheless do hold the capacity for free agency, even when they aren’t exercising it at all, such as when they’re asleep. Babies and children hold this capacity as part of their nature, in a way in which rocks, and even dogs, do not. And full-term foetuses clearly hold it, too, because they are, to this extent, identical with newly-born non-premature babies, except for their location within wombs. This is a key reason, therefore — albeit of course not the only reason — why destroying a full-term foetus is ontologically and morally different from destroying a rock or a dog.
Therefore, my first argument for why it’s wrong to characterise last week’s parliamentary developments as furthering individual freedom hinges on the way in which both assisted dying and full-term abortion are aimed at terminating free-agential life.
The preference objection
Perhaps, however, you want to raise the obvious objection that I haven’t accounted for the preferences of the people keen to undertake assisted dying and post-24-week abortions. Doesn’t the way in which last week’s developments move us towards satisfying those people’s preferences, you might ask, represent the furthering of individual freedom?
Well first, I don’t believe this can come down to numbers. That is, the extent to which individual freedom is furthered by these developments can’t reduce to weighing up the amount of freedom-related concerns involved. This is partly because we can’t assess individual freedom in the aggregate — because that’d mean adding and dividing across individuals in such a way as to ignore their ‘separateness’.5
But it’s also because the different freedoms that constitute each human’s individual freedom aren’t neatly commensurate. I mean, you might be tempted to think that the satisfaction of a mother’s preference to undertake a full-term abortion would represent the most significant freedom-related concern within such a case — simply because it’s hard to believe that a foetus at any stage could be capable of having actual preferences about something as complex as living or dying. And you might think that the satisfaction of a person’s preference to undertake assisted dying would rule out any concern about the termination of their free-agential life.
When we’re assessing the freeness of a scenario, however, the differences between the kinds of freedoms that are being furthered or constrained really do matter. Charles Taylor shows us this, by comparing a city in which you’re often held up at traffic lights but can worship however you want, with a city in which there are few traffic lights but you’re banned from practicing any religion. In other words, some freedoms are more morally significant than others. And some freedoms are always relevant, whereas others come and go. And some freedoms are dependent on others.
In terms of dependency, what more crucial individual freedom could there be than the freedom to continue living? After all, every other possible individual freedom depends on its holder continuing to be alive! To this end, it’s hard to think of a stronger example of someone who’d become less free by having a preference satisfied than someone who wants to undertake assisted dying. Indeed, it doesn’t even really make sense to say that such an undertaking can be a matter of preference satisfaction, because by the point at which the preference had been satisfied, the person whose preference it was would no longer exist.
This isn’t to suggest that if a person wants to die, but is unable to kill themself, and is also unable to access assisted dying, that they should simply be happy with their lot. Freedom and happiness are different things. Rather, it’s to emphasise that any person who continues to live has infinitely more freedom than if they had died.6
If anything, however, the tension between preference satisfaction and the freedom to continue living is even more significant within the full-term abortion case. This is because the satisfaction of a mother’s preference to undertake a full-term abortion entails the irrevocable elimination of another human’s freedom to continue living — a human whose preferences don’t even come into the equation. That’s a pretty overwhelming freedom-related concern!
Ok, in cases where removing a living full-term foetus from the womb would seriously risk its mother’s own freedom to continue living, the mother has a strong claim that the overwhelming loss of freedom the foetus would suffer by being aborted could be justified. And in cases where a foetus’s freedom to continue living depends on remaining within its mother’s womb, the mother also has a claim that the foetus’s overwhelming loss could be justified — on the grounds that nobody should be forced to bear that kind of parasitic dependency.7 But neither of these justifications are available to most mothers carrying full-term foetuses.
Finally, and on a deeper level, of course we shouldn’t equate the furthering of human individual freedom with preference satisfaction — even when preference satisfaction does lead to increased freedom! This is because, as individuals with the capacity for free agency, we humans can do so much more than act in line with our preferences. We can consider the value of our preferences, for instance, and the extent to which they align with our principles. Now, this isn’t to conclude that the people who are keen to pursue assisted dying and full-term abortion mustn't have reasoned on these matters. Rather it’s to emphasise that, as free agents, it’s not only that we have the freedom to continue living, we have the freedom to continue living in a deeply free manner.
The state overreach argument
The second reason I think it’s wrong to characterise last week’s parliamentary developments as furthering individual freedom is because they threaten a concerning increase in state power over the individual. Of course, overbearing state power is not the only threat to individual freedom. But it is a long-standing and serious one. And last week’s parliamentary votes threaten a concerning increase in state power because the directly consequent instances of assisted dying and full-term abortion they augur would be new instances in which the state endorsed, provided, or regulated the termination of human life.
This is clear in the case of assisted dying, at least as presented in the assisted dying bill. If the bill becomes law, then state-regulated medics will become causally responsible for the deaths of the people in England and Wales who undertake assisted dying. Of course, this causal responsibility will be jointly-held with the dying people, unless we shift to a Canada-style euthanasia model. This is because, as I’ve written about here before:
1) suicide is self-directed, 2) euthanasia is other-directed, and 3) assisted dying is both self-directed and other-directed. That is, all cases of both ‘assisted dying’, and ‘euthanasia’ involve the relevant physical actions of another person (or people) aside from the person whose death is the goal. But whilst in cases of ‘euthanasia’, it’s the other person alone who undertakes these actions (which is what happens in almost all instances of Canadian MAID), it’s always a joint enterprise in cases of ‘assisted dying’.
In this context, while discussion about assisted dying often centres on questions like ‘shouldn’t people in pain be allowed to end their lives?’, and ‘why should the state prevent them from doing so?’, those questions are really better suited to discussion about suicide. Whereas, the fundamental question to be asked in relation to both assisted dying and euthanasia is ‘do you have the moral authority to permit someone else to end your life?’. And only if the answer to this question is ‘yes' can we then move on to whether such matters should be outsourced to the state.
As it happens, my view is that I can no more permit someone else to end my life than I can permit them to enslave me. But I don’t need to make that argument here. Rather, all I need is to emphasise that if the assisted dying bill becomes law, then the state will increase its involvement in the termination of human life, in terms of both provision and regulation, as well as effective endorsement.
In contrast, if the decriminalisation amendment becomes law, then that won't alter the state provision of abortion. This is because, as above, medics will remain bound by the law as it currently stands. Nonetheless, the removal of criminal liability for women undertaking abortions outside the current bounds of the law would represent a significant regulatory and wider attitudinal shift of the state. And when considering the likely impact of this shift, we should acknowledge that the state’s current restrictive attitude toward post-24-week abortion helps to steady the strong norm against it. In other words, a significant current reason that women have to avoid aborting full-term and other viable foetuses is that doing so is illegal: most people prefer not to break the law, minimally because they’re concerned about the repercussions.
I’ll note at this point that I’ve seen supporters of the decriminalisation amendment relying both on the idea that very few women are currently undertaking abortions beyond the limits of the law, and also on the idea that an increase in such activity underpins a requirement for legal change. This increase pertains to women using ‘take at home’ abortion pills, which became newly legal — albeit only up to 10 weeks gestation — during the pandemic.
But regardless of the number of women taking these pills, or any reason there might be to treat such women as exempt from current legal constraints, it is short-sighted to assume that providing an exemption to them — specifically, or as part of a more general change as per the amendment — would have no impact on demand for abortions. Rather, it seems reasonable to predict that the introduction of the amendment would drive increased demand for abortion beyond current limits. And that this would likely include demand not only for self-administered abortions post-10-weeks, but also for post-24-week abortions riskily accessed from black-market providers.
What does all this have to do with overbearing state power, you might ask? Well first, as implied, the removal of criminal barriers typically effectively represents a state endorsement. Beyond that, however, let’s redirect our emphasis away from the women undertaking abortions, and toward the foetuses whose lives these abortions end. Here, let’s focus again on full-term foetuses, for the same pragmatic reasons as above. Now, under the law as it currently stands, full-term foetuses are generally protected from abortion. And more specifically, it’s only when what’s deemed to be a sufficiently strong medical reason arises that a full-term foetus is at risk of being aborted.8
To this extent, therefore, the full-term foetus’s life is currently protected by the law. And even libertarians typically recognise the provision of such protection as a justifiable exercise of state power. Indeed, many would see this as a matter of basic rights, although I’m keen to retain my tight focus on freedom here, and avoid getting on to rights-talk today.
Ok, some libertarians might be in favour of full-term abortion on the preference-based grounds I dismissed above. But generally, few non-anarchists would question the authority of the state to provide legal protection for the lives of everyone in its jurisdiction. This isn’t to deny that some libertarians might support the death penalty for certain criminal acts — or other state actions that seemingly conflict with this protective role. But such support would typically be conditional on the threat of aggression. And full-term foetuses can pose no aggressive threat once the possible health risks to their mothers that are already covered by the current law have been ruled out.
It is not only the introduction of assisted dying, therefore, but also the decriminalisation of women undertaking abortions, that represent a concerning increase in the state’s power over the individual. In the case of abortion, we see a shift from the state protecting the life of the viable foetus, to effectively endorsing its termination, even at the full-term stage. And in the case of assisted dying, we see a shift from the state protecting the lives of the terminally ill, to effectively endorsing, as well as providing and regulating, their termination. To this end, last week’s developments cohere. They represent a shift toward state-supported death, which is badly mischaracterised as the furthering of individual freedom.
Perhaps you disagree, however. Perhaps you think last week’s developments are only the beginning of something exciting! In the long run, you might ask, why shouldn't the state endorse, provide, and regulate termination at every stage of human life?
Of course, there are also some people who see only one of these developments as furthering individual freedom. But this is irrelevant for current purposes, as I’ll discuss each development sufficiently separately.
I’ve written here about what I mean by ‘basic human goods’. But in short, I’m referring to things that are objectively and irreducibly good for humans. Beyond fulfilment and achievement, I take the full set of such goods also to include things like friendship and love and work and justice — as well as freedom itself.
As I’ve written here before, this isn’t the case in other countries, plus it’s really hard to constrain the provision of assisted dying in this way.
This is a reference to the famous ‘separateness of persons’ objection to consequentialism raised by both Rawls and Nozick. Today I want to avoid getting into moral theory, per se, but I’ve written about my opposition to consequentialism here.
At this point, I want to make explicit the way in which — as you might have noticed — I'm purposefully avoiding appealing to other values, like happiness, in order to make a case for the value of freedom. This is because I hold the view that freedom is valuable in itself, and that being free is always valuable regardless of how you exercise that freedom. This is a controversial view, as it entails accepting that there’s some value in all free acts, including horrible acts. That there’s some value, for instance, in freely torturing someone. I accept this because I believe you can fully separate out the freeness of an action from its ‘content’: e.g., that there’s an important distinction between freely torturing someone and non-freely doing so. I’ll write about this view — and why I hold it — at further length some other time. But for current purposes, while this holding this view limits some of the arguments I can make here, it’s beneficial to be able to fully separate freedom from happiness.
I’ll set to one side the fact that foetuses are sometimes aborted ‘for their own good’. I’m not focusing on that here, largely because it's already covered by the law.