- In Chapter 12, I discuss applications of my view to a thorny and pressing practical difficulty. I defend a view about the morality of abortion2.
- In connection with the discussion of abortion3, I try to show how one's view about murder and abortion4 may come into conflict with one's view about the morality of failure to conceive. My own view, I argue, does not run into this difficulty.
- Two failings of the literature on abortion6:
- Treat abortions7 as morally homogenous (i.e., either all good or all bad)
- Divorced from reflection on morality in general (i.e., using only principles that apply to abortion8 cases, and therefore at risk of being in conflict with principles we have about other moral issues, say, capital punishment)
Three Examples 
- The Murder Example: a couple kill their 5-year old because they can’t stand her whimpering
- The Abortion9 Example: a couple terminate their fetus10 because they predict that they won’t be able to stand her whimpering
- The Non-conception Example: a couple practice abstinence to avoid conceiving a child whose whimpering they predict they would not be able to stand.
- In all three cases, the couple gets away with no adverse consequences for themselves and do not regret their action.
- How do the different moral theories of chapters 10 and 11 evaluate these cases?
- Hedonic Act Utilitarianism
- The murder would be wrong because the child is deprived of happiness
- The abortion11 is even more wrong because the child is deprived of more happiness
- Non-conception is worst, because the child doesn’t even get to be a fetus12
- Vitalistic Act Utilitarianism
- Murder wrong because life is lost
- Ditto (only more life)
- Ditto (only the most life)
- The problem with these two cases is that, while we agree with their conclusions in (a) [and possibly (b)] their conclusions about (c) are very counter-intuitive.
- The difficulty seems to be that utilitarianisms are unable to make any sense of the important difference between the case in which someone is killed and the case in which someone never exists in the first place. 
- BUT: Justicism, Murder, and the Failure to Conceive 
- Justicized Act Utilitarianism
- The daughter deserves her "allotted 75 years of life and happiness" so killing her is to commit a great injustice, and therefore not something that maximizes "universal justice level".
- See next section.
- "According to justicism, in order to determine the value of an outcome we must consider the extent to which the individuals who exist in that outcome get the primary intrinsic goods that they deserve in that outcome" . Because no child is conceived, there is no individual to deserve a life, so no injustice is done.
- Thus JAU is different from the other utilitarianisms because it can distinguish between cases where someone is killed and where they never exist in the first place. But what does it say about abortion13?
Justicized Act Utilitarianism and the Problem of Abortion14 
- What does the fetus15 deserve?
- This does not depend on whether or not the fetus16 is a person (says Feldman, and this is a good thing because the term is ambiguous among four senses of person).
- The Landowners Case: Two landowners own identical parcels of land both ruined by a toxic waste spill.
- Landowner is a speculator who buys land and "sits on it"
- Landowner is a hard-working tree farmer who has worked long and hard to cultivate trees whose fruit he was expecting to harvest
- The Two Young Women: Both were talented but die young.
- One sacrifices and studies hard to hone her talents and is about to become a scientist.
- The other allows her talents to "rust" – she’s a slacker.
- In both cases (b) deserves more than (a) because of the principle that you deserve more, the more you put in. This can be applied to fetuses17 to argue that the more developed the fetus18, the more it deserves. Feldman suggests that this is because an older fetus19 has
Endured the boredom of a long, claustrophobic, underwater captivity. She has exerted energy and other resources to the tasks involved in growth and development…she has made a substantial investment 
- This makes it sound as if the fetus20 has intentionally planned her actions. Feldman restates his point to avoid this implication:
The suggestion is rather that [fetuses] engage in activities that have a point only insofar as they help to bring the fetus21 closer to maturity; if the fetus22 endures these activities for eight long months and then is killed, her efforts are deprived of their point, and she suffers a serious injustice. 
- BUT: This is a very problematic claim for a few reasons:
- It seems to suggest that simply getting older means you deserve more, which would imply that old people suffer the most injustice when they’re killed
- It suggests that if a living thing’s behaviour has a "point" irrespective of the thing’s knowledge of or intentions regarding that point, then you do it an injustice in killing it. But this would apply to all plants just as much to any fetus23. Is killing a tree doing it an injustice because you’re depriving it of things it deserves?
- Related to that, if the "point" of sperm and egg is to unite, then is contraception denying them what they deserve?
- Feldman ignores his other principle of desert (mentioned in chapter 11) that beings who have had less deserve more. This might counter problem (1) because young people haven’t had any life yet, but it also makes it much harder to work out who deserves what, because the two principles are in conflict.
The "Right to Life" 
Differences between Feldman’s "desert" view and the view that claims the fetus24 has a right to life:
- Desert admits of degrees, whereas you either have a right or you don’t
- [BUT: is that true? Certainly the capacity to deserve anything is just as "on/off" as any right. Rocks don’t have it, people do. Now, what we deserve is a different matter, but even then, I could say "I deserve an education" in exactly the same way that "I have a right to an education". If I only deserve an education K through 12, well then, you could say I only have a right to that much.]
- For the RTL view, you need to establish when a being becomes a rights-bearer (because it’s an on/off thing), but desert can gradually increase from the moment one begins to exist.
- [BUT: does the desert view really avoid this issue? Isn’t there an identical issue of "when does one start to deserve something?" If we say "the minute you start existing", well, we can say the same thing for RTL – the question remains "existing as what?" but that’s true for desert too]
- RTLers have to answer the question "what justifies the claim that an individual has a right?", whereas the desert view uses a concept of desert that is familiar from our thoughts about justice.
- [BUT: even if we have intuitions about justice, it is by no means clear that these apply unproblematically to life. I can have clear intuitions about who deserves what slice of cake, but I’m not sure I have intuitions about what fetus25 deserves how much life.]
- Sometimes the RTL is regarded as absolute, overriding everything. Desert, however, can be weighed against other interests.
- Those who are prepared to say that different rights can conflict lack a general theory whereby we can rank importance of rights. However, JAU is a general theory within which it is easy to make comparisons of desert according to values of outcomes.
- [BUT: again, is the situation any different? If the fetus26 has a right to life and the mother has a right to control her body, then you have conflicting rights. But the same is true if one deserves her life and the other deserves her freedom. Who deserves it more? That isn’t settled by anything Feldman has said.]
Advantages of This View 
- Part of a general moral theory (not ad hoc and applicable only to abortion)27
- When abortion28 is wrong it is wrong for the same reasons as killing a child, when it is wrong: "the act is wrong because it makes the world worse"
- Failing to conceive is not wrong on this view
- Avoids the use of the "obscure and controversial concepts" of person and right to life. ("I should perhaps acknowledge that the concept of desert is slightly slippery."[208 – damn right!])
- Abortions29 are not "morally homogenous" – some are right, some are wrong, and to differing degrees of each.
- Provides a "coherent framework for further discussion" in part because it avoids debates over personhood and right to life.
Footnote 1: Footnote 5:
Text Colour Conventions (see disclaimer)
- Blue: Text by me; © Theo Todman, 2019
- Mauve: Text by correspondent(s) or other author(s); © the author(s)