John T. Noonan, Jr. "An Almost Absolute Value in History"

From John T. Noonan, Jr. ed., The Morality of Abortion: Legal and Historical Perspectives (Cambridge, MA: Harvard University Press), c. 1970.

Noonan first argues that the primary issue in the abortion question is, How does one determine the humanity of a being? He answers this question with what he takes to be the single answer of especially Catholic theologicans - namely, that if one is conceived by human beings, one is a human being.

Noonan then examines five alternative criteria for humanity which he finds at work in the abortion debate - viability, experience, sentiment, sense experience, and social visibility - and then provides one or more criticisms of these, as a way of reinforcing his original claim. (Students of logic and critical thinking will want to note that he often relies on examining the possible consequences of accepting an alternative view: if these consequences lead to unacceptable conclusions, as they do for Noonan, then the original criterion must be rejected as well. This reliance on reductio ad absurdum arguments, however, runs the risk of committing the fallacies of begging the question, and slippery slope. Careful readers will want to attend closely to whether or not Noonan always avoids these fallacies in his critiques of the alternative criteria.)

He turns to a probabilistic argument concerning the rather low probabilities of an egg or sperm becoming a human being vis-a-vis the relatively high probability of the conceptus (the fertilized egg) becoming a human being. For Noonan, there is a sharp dividing line here on the continuum of developing life - one that justifies designating the conceptus as human and thus endowed with rights, while no such designation would be made for egg or sperm.

Noonan concludes by noting that his argument does not result in the rejection of all abortions whatsoever. Rather, granting that the conceptus/zygote/fetus is fully human - in the case of possible conflict with the mother's right to life, Christian moralists are faced with a question of weighing the rights of each against one another. Noonan acknowledges that the Catholic Church has judged these weights differently over time - but, in a final appeal to Jesus on the cross as the primordial Christian image of self-sacrificing love, he implies that a loving mother would give up her own life rather than sacrifice that of her child for her own sake.

Noonan begins with the assertion

The most fundamental question involved in the long history of thought on abortion is: How do you determine the humanity of a being?"

Ostensibly, one only need establish that the conceptus/zygote/fetus is human in order to establish that it enjoys a (near) absolute right to life - and thus that abortion, as equivalent to violating this right to life, is therefore equivalent to murder, and is therefore (almost) always immoral.

[This presumption needs to be pointed out at the beginning, partly in order to understand why Noonan's article is so widely anthologized - i.e., it articulates a classic "pro-life" position (one further consistent with Catholic views in particular); and in order to understand the power of various critiques of Noonan's position - most notably, that launched by Judith Jarvis Thompson.]

It is of interest to note that Noonan strenuously denies the claim made by Rabbi Feldman, among others, that Christian opposition to abortion is related in some way to the importance of infant baptism (see Noonan's first footnote). Nor, on his account, does Christian opposition to abortion rest on a specific understanding of "ensoulment" - especially since Christian understandings of when ensoulment occurred changed over time, in keeping with "the world's" understanding.

For Noonan, rather, the foundation for Christian opposition to abortion is

a refusal to discriminate among human beings on the basis of their varying potentialities. Once conceived, the being was recognized as man because he had man's potential. The criterion for humanity, thus, was simple and all embracing: if you are conceived by human parents, you are human.

Noonan seeks to bolster this view by contrasting it with several other ways of establishing humanity that crop up in the abortion debate. His strategy, simply, is to review each of these and show the weakness(es) of each, and so leave his position as the only one still standing, so to speak.

The first alternative view is the notion of viability:

Before an age of so many months, the fetus is not viable, that is, it cannot be removed from the mother's womb and live apart from her. To that extent, the life of the fetus is absolutely dependent on the life of the mother. This dependence is made the basis of denying recognition to its humanity.

Noonan points out a number of significant weaknesses to this view. First, "viability" is highly variable - depending on the state of current technology, the genetic inheritance of the fetus (apparently, fetuses among some human groups attain viability earlier than others), etc. This variability and indeterminancy is at odds with what is wanted in the abortion debate - namely, a fairly precise, reliable, unchanging, universally valid absolute distinction. (Of course, if one demands less than a single, absolute, unchanging moral standard - as, for example, Gustafson allows for - then Noonan's critique of the viability criterion is less damaging.)

Second, and most important for Noonan, the dependence at work in the viability criterion

is not ended by viability. The fetus is still absolutely dependent on someone's care in order to continue existence; indeed a child of one or three or even five years of age is absolutely dependent on another's care for existence; uncared for, the older fetus or younger child will die as surely as the early fetus detached from the mother.

Noonan's point, then, is that there is not the clear line between dependence and independence presumed in the viability argument. It is a distinction which makes no difference.

The second alternative view is experience. On this view,

A being who has had experience, has lived and suffered, who possesses memories, is more human than one who has not. Humanity depends on formation by experience. The fetus is thus "unformed" in the most basic human sense.

Again, for Noonan this is a distinction which makes no difference. The embryo, he points out, as responsive to touch, is "experiencing" in a morally important sense. Moreover, this criterion is open to the counterexample of the adult who has aphasia has lost his or her memories - his or her "experience": Noonan asks rhetorically if this means the humanity of the adult has been erased. Presumably the answer is, No - in which case, implicitly, neither can we use the absence of experience in the fetus as a basis for denying its humanity. (For that, the person who upholds the experience criterion might reply, Yes, in extreme cases at least, we believe the biologically human being who has lost all memory, consciousness, and hope of further experience - i.e., as in a vegetative coma - may not enjoy an absolute right to life. Noonan moves over this point too quickly, perhaps.)

Moving on - the experience criterion likewise would allow us to treat the older fetus, perhaps even the young child, as lacking in humanity: again, this is for Noonan a clearly absurd position.

But most importantly,

it is not clear why experience as such confers humanity. It could be argued that certain central experiences such as loving or learning are necessary to make a man human. But then human beings who have failed to love or to learn might be excluded from the class called man.

Again, for Noonan, this conclusion is clearly absurd (i.e., he's providing here a reductio ad absurdum argument) - but again, someone holding to the experience criterion might not think this conclusion absurd: and if not, then such a proponent might accuse Noonan here of begging the question.

A third alternative is sentiment:

If a fetus dies, the grief of the parents is not the grief they would have for a living child. The fetus is an unnamed "it" till birth, and is not perceived as personality until at least the fourth month of existence when movements in the womb manifest a vigorous presence demanding joyful recognition by the parents

Over against this view, Noonan launches familiar objections to any effort to ground morality on feeling and emotion: "Yet feeling is notoriously an unsure guide to the humanity of others," - first of all, because our history is rife with examples of one human group not feeling that another human group is human, because of differences in language, skin color, religion, gender, etc. Beyond racism and sexism as counterexamples to morality as feeling - Noonan also points out that feeling is variable:

...we mourn the loss of a ten-year-old boy more than the loss of his one-day-old brother or his 90-year-old grandfather. The differences felt and the grief expressed vary with the potentialities extinguished, or the experience wiped out; they do not seem to point to any substantial difference in the humanity of baby, boy, or grandfather.

That is, Noonan is after a criterion that will draw the fine but crucial line between the human invested with a right to life and the non-human for whom, presumably, little or no such right may be asserted: this "either/or" quest will not be met by feeling and sentiment, which offer variable response over a continuum of examples.

The fourth alternative is sense experience - specifically, touch and sight:

The embryo is felt within the womb only after about the fourth month. The embryo is seen only at birth. What can be neither seen nor felt is different from what is tangible. If the fetus cannot be seen or touched at all, it cannot be perceived as man.

But sight, Noonan objects, is even less reliable than feeling. Sight, after all, is precisely the basis for racism in the first place: "By sight, color became an appropriate index for saying who was a man, and the evil of racial discrimination was given foundation."

By the same token, touch will not work either: "a being confined by sickness, "out of touch" with others, does not thereby seem to lose his humanity." The touch criterion, moreover, is for Noonan tied in with the old ideas of quickening and ensoulment - notions he has discarded from the outset.

The last alternative is "social visibility":

The fetus is not socially perceived as human. It cannot communicate with others. Thus, both subjectively and objectively, it is not a member of society. As moral rules are rules for the behavior of members of society to each other, they cannot be made for behavior toward what is not yet a member. Excluded from the society of men, the fetus is excluded from the humanity of men.

Noonan rejects this - again, by examining the consequences of holding this view consistently, and finding those consequences unacceptable. Simply, this criterion would further allow the equivalent of the "social construction" of humanity - i.e., the relatively arbitrary determination of who's in and who's out on the basis of power and interests. Again, our history is rife with examples of such socially-determined exclusion of specific groups and individuals: beyond the examples of racism and sexism Noonan has already alluded to, here he refers to George Orwell's 1984 as providing a fictive example, slavery in the Roman Empire, and Chinese Communist condemnation of landlords.

He seeks to bolster his critique here with a stirring rejection of this way of defining humanity - one that rests on especially the prophetic tradition of Judaism, Christianity, and Islam: but his focus on consequences here also runs the danger of opening him to the charge of slippery slope:

Humanity does not depend on social recognition, though often the failure of society to recognize the prisoner, the alien, the heterodox as human has led to the destruction of human beings. Anyone conceived by a man and woman is human. Recognition of this condition by society follows a real event in the objective order, however imperfect and halting the recognition. Any attempt to limit humanity to exclude some group runs the risk of furnishing authority and precedent for excluding other groups in the name of the consciousness or perception of the controlling group in the society.

Noonan imagines that a philosopher would object to any claim to "humanity" if (a) as a modernist, such a philosopher might suspect here a covert appeal to a religious belief in a soul - a religious belief which presumably cannot be sustained in a purely secular, rationalist framework and (b) as a relativist, because "he doubts the existence of anything real and objective which can be identified as humanity." Noonan responds:

One answer to such a philosopher is to ask how he reasons about moral questions without supposing that there is a sense in which he and the others of whom he speaks are human. Whatever group is taken as the society which determines who may be killed is thereby taken as human.

His point seems to be that any group which takes upon itself the right to judge who is worthy of death thereby presumes its own humanity. Continuing,

A second answer is to ask if he does not believe that there is a right and wrong way of deciding moral questions. If there is such a difference, experience may be appealed to: to decide who is human on the basis of the sentiment of a given society has led to consequences which rational men would characterize as monstrous.

That is, if one is not a pure relativist - if one would reject, for example, Nazi extermination of the Jews as "monstrous," as an objectively moral evil, not simply a personal, aesthetic opinion - then one is commited to determining how such moral judgments may be made. Sentiment, for Noonan, as his earlier examples make clear, is not a reliable source of such moral judgments.

Now that Noonan has made a first pass at clearing away these alternative views, he seeks to buttress this rejection:

Moral judgments often rest on distinctions, but if the distinctions are not to appear arbitrary fiat, they should relate to some real difference in probabilities.

While Noonan recognizes a continuum in the development of life, he goes from here to draw a strong line between sperm and egg, on the one hand, an conceptus, on the other, precisely in terms of the probabilities of their developing into a human being. The distinction seems clear: a spermatazoon has about 1 in 200,000,000 chances of becoming a zygote (upon successfully beating its 199,999,999 cohorts in the competition for the egg), and of the 100,000 to 1,000,000 oocytes each woman is born with, a maximum of 390 are ovulated. "But once spermatozoon and ovum meet and the conceptus is formed....the chances are about 4 out of 5 that this new being will develop." For Noonan, this represents "a sharp shift in probabilities, an immense jump in potentialities," one significant enough to found his defending the rights of the fertilized ovuum, while not concerned about the rights of spermatazoa and unfertilized ova.

It is often argued that rights, including any right to life, attach not so much to a physical entity as to a moral or metaphysical entity - the soul, the mind, "personhood" (which may extend beyond the biological boundaries of homo sapiens, and which may not apply to every biological member of the species homo sapiens). On this view, it is risky at best to seek to ground a moral/metaphysical conception of rights on the physical: proponents of this view, for example, would make the same point as Noonan regarding racism, insofar as racism is an instance of determining humanity and rights based on the physical, on the color of one's skin.

Noonan acknowledges the possibility of such a critique against his own view, grounded as it is in this argument, which relies on biological probabilities to establish humanity:

It may be asked, What does a change in biological probabilities have to do with establishing humanity? The argument from probabilities is not aimed at establishing humanity but at establishing an objective discontinuity which may be taken into account in moral discourse.

This "taking into account," moreover, is justified because of his view of life and moral reasoning:

As life itself is a matter of probabilities, as most moral reasoning is an estimate of probabilities, so it seems in accord with the structure of reality and the nature of moral thought to found a moral judgment on the change in probabilities at conception.

This appeal, he goes on to say, is "the most commonsensical of arguments," especially in that, to some degree or another, "...all of us base our actions on probabilities, and, in morals, as in law, prudence and negligence are often measured by the account one has taken of the probabilities." Here he offers an interesting analogy to make the point

If the chance is 200,000,000 to 1 that the movement in the bushes into which you shoot is a man's, I doubt if many persons would hold you careless in shooting; but if the chances are 4 out of 5 that the movement is a human being's, few would acquit you of blame.

It should be noted that the analogy might make the point that probability is morally relevant: it does not, however, serve as additional evidence for Noonan's primary claim - i.e., that the zygote/conceptus/fetus is a human being from the moment of conception. Nor does Noonan suggest that it does offer such evidence. In fact, Noonan goes on to reiterate that his appeal to probabilities is not a strict argument per se - i.e., one that would be open to the charge of attempting to define the metaphysical on the basis of the physical:

The probabilities as they...exist do not show the humanity of the embryo in the sense of a demonstration in logic any more than the probabilities of the movement in the bush demonstrate beyond all doubt that being is a man. The appeal is a "buttressing" consideration, showing the plausibility of the standard adopted.

It would be helpful to compare Noonan with Gustafson here, especially as Gustafson has characterized Catholic moral thought as rationalistic and oriented towards the physical. At this point, at least, Noonan's approach does not seem to fully fit that characterization.

Noonan goes on to give his "positive argument for conception as the decisive moment of humanization," - namely,

at conception the new being receives the genetic code. It is this genetic information which determines his characteristics, which is the biological carrier of the possibility of human wisdom, which makes him a self-evolving being. A being with a human genetic code is a man.

Noonan takes this argument as a contemporary version of what he takes to be the Christian theologians' argument (see above); the argument is to be appreciated in part because, as the current controversy over abortion makes clear, the theologians resolve a "fundamental question" by "asserting the inviolability of the fetus."

At the same time, however, the argument by no means resolves the entire abortion question. This argument does resolve any question concerning abortion ostensibly for the good of the fetus: by insisting that the fetus is human from the moment of conception is " say it had a destiny to decide for itself which could not be taken from it by another man's decision." But it does not address another central issue in the abortion debate - namely, what to do when "human beings [e.g., mother and fetus] with equal rights" come into conflict with one another.

Noonan again translates the language of the theologians into more contemporary terms, to suggest that their distinction, for example, between "direct" and "indirect" intentions in the doctrine of double effect is a way of attempting to draw lines or balance values. These metaphors make clear that in the case of conflicting interests and rights, comparisons must be made and no single value or principle fully determines the issue. (In this way, interestingly enough, he sounds like Gustafson as he laments the difficulty of arriving at a moral judgment in the face of conflicting values.)

In particular, he notes that

The principle of double effect was ...a method of analysis appropriate where two relative values were being compared. In Catholic moral theology, as it developed, life even of the innocent was not taken as an absolute. Judgments on acts affecting life issued from a process of weighing. In the weighing, the fetus was always given a value greater than zero, always a value separate and independent of its parents.

Here Noonan further points out that judgments made in this weighing process have varied over time:

Even with the fetus weighed as human, one interest could be weighed as equal or superior: that of the mother in her own life. The casuists between 1450 and 1895 were willing to weigh this interest as superior. Since 1895, that interest was given decisive weight only in the two special cases of the cancerous uterus and the ectopic pregnancy. In both of these cases the fetus itself had little chance of survival even if the abortion were not performed. As the balance was once struck in favor of the mother whenever her life was endangered, it could be so struck again. The balance reached between 1895 and 1930 attempted prudentially and pastorally to forestall a multitude of exceptions for interests less than life.

The title "An Almost Absolute Value in History" suggests a single, absolute claim: but while he argues for the humanity of the fetus from the moment of conception, Noonan thus acknowledges a less absolute position (the value of the life of the fetus as an innocent is not absolute), one that issues in differing judgments over time, even within the Catholic tradition. At this juncture, Noonan shows something of Gustafson's sensitivity to ambiguity and the possibility of a plurality of answers.

At the same time, Noonan would reject Gustafson's argument for abortion in the case of an impoverish single mother, where the pregnancy resulted from a revenge rape. This contrast in positions is suggested by the contrast in how each closes his article. Noonan closes by stressing love, as an injunction of Scripture, as the spirit animating Christian moralists as they engage in the otherwise "only rational calculation" of weighing fetal rights against other human rights. For Noonan, this can be translated into a rationalist commandment, "Do not injure your fellow human being without reason." Given this,

...once the humanity of the fetus is perceived, abortion is never right except in self-defense. When life must be taken to save life, reason alone cannot say that a mother must prefer a child's life to her own. With this exception, now of great rarity, abortion violates the rational humanistic tenet of the equality of human lives.

Moreover, Noonan's final paragraph appeals to the Christian paradigm of how love of neighbor leads to the greatest self-sacrifice:

For Christians the commandment to love had received a special imprint in that the exemplar proposed of love was the love of the Lord for his disciples. In the light given by this example, self-sacrifice carried to the point of death seemed in the extreme situations not without meaning. In the less extreme cases, preference for one's own interests to the life of another seemed to express cruelty or selfishness irreconcilable with the demands of love.

In short, even in cases of self-defense, Noonan clearly implies that choosing the mother's interests over those of the fetus is unchristian.

This image of the self-sacrificing mother, thereby imitating Jesus on the cross, is in striking contrast with Gustafson's closing paragraph. For Gustafson, the choice of abortion under some circumstances may be paralleled not so much to the perfectly pacifistic Jesus on the cross, but the Christian soldier, for whom life may be taken in a just war - justly but mournfully.

HomePage for Abortion: Religious Perspectives HomePage for Academic Dialogue on Applied Ethics

Robert Cavalier, Carnegie Mellon and Charles Ess, Drury College