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This is to certify that the

thesis entitled

THROUGH THE EYES OF PARADIGMS:
VALUE-LADEN CASUISTRY

presented by

David William Montgomery

has been accepted towards fulfillment
of the requirements for
Master of Arts
degree in
Interdisciplinary Programs in
Health and Humanities

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THROUGH THE EYES OF PARADIGMS:
VALUE-LADEN CASUISTRY

BY

David William Montgomery

A THESIS
Submitted to
Michigan State University
in partial fulfillment of the requirements
for the degree of

MASTER OF ARTS

Interdisciplinary Programs in Health and Humanities

1994

ABSTRACT

THROUGH THE EYES OF PARADIGMS:
VALUE-LADEN CASUISTRY

BY

David William Montgomery

Casuistry has become a useful tool for moral analysis in the
medical ethics arena. The application of casuistry has,
however, been quite varied. Drawing upon historical sources
from casuists of the Jewish and Roman Catholic traditions, I
suggest that the contemporary divergences in casuistry are, in
part, a result of the value differences of these groups.
Analyzing casuistries relating to the question of abortion, I
propose that prior knowledge of a group’s values may shed
light on the types of paradigms that are selected and in turn
effect the outcome of the casuistry. But, the casuistry
itself is not principle-free as many contemporary casuists

would like to suggest.

Copyright by
David William Montgomery
1994

For my mother, my father, and my sister ——
Three pillars of strength.

iv

ACKNOWLEDGMENTS

The work of this thesis has been somewhat of a group
experience. Although the actual research and writing was my
responsibility, the burdens and joys of my work were shared by
many. As inadequate of a " thank you" it may be, I would like
to recognize and acknowledge my appreciation for the
contributions made by a number of individuals that surpassed
the expectations of friendship.

I must begin by thanking my thesis director, Tom
Tomlinson, for whom I could not say enough good things about.
His support, patience, guidance and wisdom were invaluable; a
true benchmark for academia. My other committee members,
Robert Anderson and Bill Schoenl, provided valuable comments
at the appropriate times and assisted in improving my thesis.

Throughout my stay at Michigan State University, Peter
Vinten-Johansen, Director of the Interdisciplinary Programs in
Health and Humanities, served not only as a mentor with
valuable insights on education and the ways by which knowledge
is critically acquired, but as an individual worthy of respect
and friendship. In addition to Peter, I was continuously
supported and encouraged by my colleagues in IPHH —— in

particular, Libby Bogdan-Lovis, Chad Gandiya, Paul Haynes,

Sheila Ording, David Schinderle, and Brian McKenna —— who
evaluated early drafts of my prospectus and thesis.

Others outside of IPHH, who read either partial or
complete drafts at various stages in its development include:
Cynthia Brown, Paula Garrett, Bill Lovis, Katie Malleis, and
Kurt Ribisl. Heidi Bartlett drew the diagrams and Mary Duff—
Silverman.assisted with.computer problems as they’aroseu IMike
McSeoin, from Interlibrary Loan, was of great help in locating
information and retrieving hard-to—find documents. Ben de Wit
of Chalcedon.Books kindly made available his rare books, which
Tess Tavormina graciously translated selections of.

There are many others who have helped in improving this
thesis in less direct ways. Mbst do not realize how much
meaning and purpose was derived over the past two years from
their warm smiles and generous hearts; here, I say thank you.
To those mentioned above, and those unmentioned with whom I
had contact, I share the fruits of this thesis.

Lastly, I wish to acknowledge my mother, my father, and
my sister, Jennifer. Their encouragement and support was
utilized every step of the way. It is to them that I dedicate

this thesis.

vi

Those who stand outside all judgments of value
cannot have any ground for preferring one of their
own impulses to another except the emotional
strength of that impulse (78).

C.S. Lewis
The Abolition of Man

Vii

TABLE OF CONTENTS

LIST OF FIGURES X
INTRODUCTION 1
CHAPTER 1. -- Casuistry: Its Reemergence and Its Importance 4
Demise of Casuistry 5
Critics of Casuistry 6

Papal Authority and the Protestant Reformation 9

Contemporary Interpretation of Casuistry 10
Revised Definition of Casuistry 12
CHAPTER 2. -- Casuistry on Abortion: A Heuristic Device 19
Historical Casuistry of Abortion 19
Early Sources and Development 19
Status/Ensoulment 20
Self—defense 27
Maintenance of Honor 35
Contemporary Casuistry of Abortion 38
Thomson Dialogue 38
Personhood/Ensoulment 38
Self-defense 43

Property Ownership/Choice 3)

CHAPTER 3. - Contributions of Historical Casuistry to
Contemporary Casuistry 55

viii

Abortion
General
NOTES

LIST OF REFERENCES

ix

55

61

78

LIST OF FIGURES

1. General Diagram of Casuistry

2. Revised Example of Casuistry using Exodus 20:13

14

INTRODUCTION

Given that casuistry is believed by some to be an
esoteric thesis topic of questionable practical value, I
should explain not only how I came to select this as a topic,
but also the aspect in which I believe this topic to be
relevant to a larger audience. My interest in casuistry lies

in its historical roots in moral theology and its contemporary

resurgence in medical ethics debates. This resurgence,
however, has not gone uncontested. As I observed the
contemporary casuistical debate, I became increasingly

intrigued by the way in which this supposedly "history-free"
secular contemporary casuistry seemed.to reflect the values of
certain. members in society' in. ways similar to that of
historical casuists.

Historically, casuistry was viewed within a religious
context.1 The values of the casuists distinctively determined
the outcome of the casuistry. In light of those who suggest
that casuistry can be practiced in an adiaphoric or morally
neutral environment,2 I will argue the opposite, that the
values of thejpast are more prevalent in contemporary decision
making than we often acknowledge.

The methodology employed is necessarily interdisciplinary

2

in the fields of history, philosophy, and, to some extent,
religious studies. Understanding and evaluating the process
of casuistry requires an appeal to a philosophical analysis;
assessing the development of casuistry and the factors
surrounding its prevalence and demise requires an historical
investigation; and given that the process of casuistry is
rooted in religion and the comparison of religious values,
religious studies adds adjunct content. I have selected
abortion as a common ground to compare casuistries because of
the differences and. similarities found. between. the
casuistries. The analogies used to present an analysis of the
casuistical argument are: 1)the issue of fetal status, 2)the
issue of self-defense, and 3)the issue of maintaining
reputation/ownership of property.

As noted. earlier, the esoteric nature of casuistry
requires an introduction that provides a definition from which
the reader can begin. Although the focus of my definition,
discussed in more detail later, is the argument by analogy,
the Oxford English Dictionary provides a definition of
casuistry which can serve as a starting point for our later
discussion. Casuistry is

that part of ethics which resolves cases of conscience,

applying the general rules of religion and morality to

particular instances in which circumstances alter cases
or in which there appears to be a conflict of duties.3
This definition does not explain all of the nuances of

casuistry, but it does allow the reader to jump to the heart

of my argument and the way this thesis differs from any other

3
piece on casuistry. The problem that I address is whether
contemporary casuistry as practiced in the form of analogous
reasoning is independent of its historical past or if it is
reliant on the historical values in deriving its outcomes. I
argue that this new casuistry is not as independent of the
past as contemporaries such as Jonsen and Toulmin would like
to suggest; and, I argue that the values of certain groups are
argued in ways similar to arguments of the past. The
similarities are limited, however, and the differences are
equally‘interesting. Based on these differences, the question
then becomes to what extent can casuistry be constructed
independent of principles with different starting premises?
I conclude by arguing that casuistry cannot be viewed as
principle-free, ‘but that. implicit. principles have jplayed
important roles in both historical and contemporary

casuistries.

4

CHAPTER 1

Casuistry: Its Reemergence and Its Importance

Within the past few years, and especially since the
publication of The Abuse of Casuistry in 1988,4 casuistry has
become increasingly recognized as a useful tool in medical
ethics. After a nearly 200 year hiatus from common public
discourse, it has been revitalized in the medical ethics arena
to deal with decisions in medicine that require immediate
attention. In light of this reemergence in medical ethics
casuistry became appealing on two fronts: First, as a reaction
"against principle—based approaches to ethical problems, " and
second as a practical and pedagogical way of dealing with
cases in medical ethics.5

~Regarding the appeal of casuistry as a reaction against
a principle-based approach, Tomlinson cites four reasons: a)
there is no "single, defensible, overarching moral principle"
that resolves cases and it is therefore only judgement that
sways us one way or another; b) all. we have is abstract
truisms, i.e. there are no principles of application; c)
ethical principles ignore history and custom; d) ethical
theories do not tell us anything new.6

Casuistry differs from a principle-based approach in that
a! principle-based approach tries to solve a problem by

appealing to principles of autonomy, nonmaleficence,

5

beneficence, and justice, among others.7 In contrast,
casuistry, in the estimation of some contemporary casuists,
relies on previously accepted cases, rather than principles,
to derive a morally acceptable solution.8

Regarding the practical and pedagogical centrality of the
case, Tomlinson rightly suggests that cases have been central
to medical ethics because they allow a context for the
understanding of a problem.9 To an extent, this context for
understanding has fed the popularity of casuistry and the

recognition of its practice.

Demise of Casuistry

Given what is perceived as a recent reemergence of
casuistry, the factors surrounding the demise of casuistry
become important in understanding the historical relevance of
past casuistry to contemporary casuistry. Viewed as one of
the dominant.modes of moral and.ethical problem solving within
the Roman Catholic Church, it was largely the abuses of power
and unfavorable public opinion that. resulted in casuistry
being forced into seclusion. While ostracized from public
forums, casuistry continued to be utilized as a penance
subscribing pedagogical device within seminaries.lo

Although there are many reasons casuistry became
unfashionable, at least three stand out as the most obvious:
1) the creative prose of Blaise Pascal and other authors in

bringing the abuses of casuistry to the public; 2) the

6

emergence of papal authority and the hierarchy of casuistry
within the papacy; and 3) the Protestant Reformation and the
insistence of Protestants to do away with anything
Catholic}:1 13y further examining the causes of casuistry’s
demise, we can get a better understanding not only of how
prevalent casuistry was, but also how the pejorative
connotation of the term is not directed at the nature but the
practice of casuistry. It becomes necessary to expand upon
these reasons leading to casuistry’s downfall not only to show
the prevalence of casuistry, but also to attempt to answer
whether it is the nature of casuistry or the environment in
which it is practiced that makes the difference.

If it is the environment that leads to differences in the
practice of casuistry, a better understanding of the
environment ianhich the influence of casuistry evolved can be
instrumental in understanding whether casuistry is being done
in a similar moral environment. Although the answer appears
to’be an obvious "no", the similarities between historical and
contemporary casuistry, to be discussed later, suggest certain
similarities in moral environments. Understanding the history
will allow us to evaluate the functions in a like environment
with the past and whether, as Jonsen and Toulmin seem to
suggest, the time is right for the reemergence of a new and
independent casuistry.

Critics of Casuistry

Casuistry’s most influential opponent was the

'7

mathematician and. physicist Blaise Pascal. In 1657 he
anonymously published The Provincial Letters, which brought
into question the use of casuistry.12 Pascal, in calling for
the cessation of the practice of casuistry, highlighted the
abuses of casuists and.criticized.the laxist.practice employed
by some casuists.13

Attacks such as Pascal's led the general public to
develop a dislike for the practice of casuistry. This
intellectual contempt was reinforced by later authors such as
Moliere, who in his 1664 play "Tartuffe" mocked the bigotry
and hypocrisy within the church and discouraged an acceptance
of casuistry that was careless in appearance.14 Tartuffe,
the cleric in Moliére’s play, displays the corruption of the
church. with. comments like: "The public scandal is ‘what
constitutes the offense: sins sinned in secret are no sins at
all."15 This suggests self-serving and crooked church, or at
least members of the church. which. were responsible for
carrying out the rulings of the church. Near the end of the
play, when the officer comes to take Tartuffe away, it is said
that "the long history of his dark crimes would fill

volumes , "16

a possible reference to the long and extensive
tradition of casuistry which was known to "fill volumes."

Montesquieu's 1721 Persian Letters, which was added to

 

the Vatican Index of banned books in 1761, also attacked
casuistry. In Letter 57, Usbek writes to Rhedi about his

encounter with a casuist. Usbek is told by the casuist that

8

it is not the action that makes the crime, but whether
the person committing it knows or not. If someone does
something wrong while being able to believe that it is
not wrong, he has clear conscience, and since there is an
infinite number of equivocal actions[,] a casuist can
give them the degree of goodness which they lack by
declaring them good.17

Usbek bristles at the ease that "these casuists" dismiss sin.
He leaves the:monk.by'expressing his dismay with such.behavior
towards his God, asserting that a moral God would condemn such
abuses.

Rica, in one of his letters, discusses the actions of the
casuists at a library even more pointedly than Usbek:

Here you see the casuists, who bring the secrets of the

night out into the light of day; who, in imagination,

create every monstrosity that the demon of love can
produce, put them together, compare them, and.think about
them endlessly; and it is lucky for them if their
emotions do not get involved, or even become the
accomplices of all these perversions, so openly described
and so nakedly portrayed.18

Montesquieu sets forth his opinion regarding the status of

casuistical analysis; his popular sarcasm further distanced

casuistry from mainstream public acceptance.

Building upon this, Adam Smith, best known for his
economic theories, attacks the misuse of language employed by
casuists. As Smith wrote in his Theory of Moral Sentiments
(1759):

'Books of casuistry are generally useless as they are

commonly tiresome.... That frivolous accuracy'whicthhey

attempted to introduce into subjects which do not admit
of it, almost necessarily betrayed them into. . . dangerous
errors,’ and at the same time they abounded ’in abstruse

and metaphysical distinctions....'19

Smith, in his agreement with other rhetoricians, displays his

frustration with casuistry. He has become tired of the
frivolity and unscrutinizing errors of casuistry and suggests
that it would be best if casuistry were set aside. Even the
opponents of contemporary casuistry seem to echo their
forbearers View regarding the uselessness of casuistry.20

These attacks on casuistry by influential individuals
certainly aided the demise of casuistry; but were unlikely the
sole cause. The reaction to Jewish casuistry is not found to
be nearly as prevalent as that to the Catholic casuistry and
therefore the attacks that we see are primarily against the
Catholics.21 In part, these attacks can be viewed as a
reaction.against the Roman Catholic Church structure and papal
authority.

Papal Authority and the Protestant Reformation

Despite the increase in monarchy during the Middle Ages,
the Catholic church viewed its rule as universal because all
individuals could potentially be Christians.”2 This belief
of universality required some aspects of uniformity if papal
rulings were to be effective. Casuistry served as an
excellent way to provide such uniformity in making decisions
that could be emulated at the most local of levels. Passing
down decisions to local priests allowed the views of the
papacy to be reflected in the life of everyday men and women.

As the above section suggests, rhetoricians picked—up on
abuses carried out in the name of the church. And as the

conditions became right for a viable alternative to Roman

lO

Catholicism,23 the approach of the casuists came into
question. Thus, another factor contributing to the decrease
of casuistry might have been its association with Catholicism
and a method of transferring papal rulings. For example,
English Protestants initially rejected casuistry because it
was so much a part of Catholicismfl24 And although Anglican
priests brought back the use of casuistry upon the perceived
moral void in its absence, the public sentiment was already
against casuistry, or at least the casuistry discussed by the
critics of it.

Having provided.a brief background of the social climate
of casuistry in the 17th and 18th centuries, we are now ready
to examine a contemporary rendering of casuistry. We will
look at the similarities and differences between the
historical and contemporary casuistries to see if they
function in a similar moral climate; a moral climate which
might lead to difficulties similar to those experienced by

historical casuists.

Contemporary Interpretation of Casuistry
With.the 1988 publication.of.Albert.R. Jonsen and Stephen
Toulmin’s The Abuse of Casuistry: A History of Moral
Reasoning, the topic of casuistry was resurrected and has
become a subject of ongoing discussion. Jonsen and Toulmin
described casuistry as a six step process of ranking and

filing cases,25 but failed to provide a clear methodology for

11
the utilization of casuistry within clinical ethics. To fill
this gap in methodology, Jonsen, in.a later article, describes
three features of what a clinical casuistry should look like:

1) Morphology —- That aspect of a "case that reveals the
invariant structure: of the jparticular case ‘whatever its
contingent features, and also the invariant forms of argument
relevant to any case of the same sort."

2) Taxonomy -- "Situates the instant case in a series of
similar cases, allowing’ the similarities and «differences
between an instant case and a paradigm case to dictate the
moral judgment about the instant case."

3) Kinetics -- "An understanding of the way in which one
case imparts a kind of moral movement to other cases, that is,
different and sometimes unprecedented circumstances may move
certain marginal or exceptional cases to the level of paradigm
cases."26
The evaluation of this methodology has received mixed
reviews27 and been followed by critiques of casuistry that
differ in methodology slightly from that of Jonsen.28 We do,
however, begin to get a better idea of how we would start to
analyze a case in a casuistical manner. To firm up this
understanding, I will discuss a more general View of casuistry
in the following section.

Before doing that, however, I would like to return to the
discussion of casuistry as presented by Jonsen and Toulmin.
Having structured their six steps of casuistry, they provided
a definition which was used by Jonsen in describing his
methods for clinical casuistry.

The analysis of moral issues, using procedures of

reasoning based on paradigms and analogies, leading to

the formulation of expert opinions about the existence
and stringency of particular moral obligations, framed in

terms of rules or maxims that are general but not
universal or invariable, since they’ hold. gOOd.‘with

12

certainty only in the typical conditions of the agent and
circumstances of action.29

I find this definition of casuistry quite palatable and even
applaud the broadness of its meaning, i.e. there is very
little which this definition could not embrace. But as I
suggested earlier, it appears to neglect the importance of

group values or the values of the casuist doing the casuistry.

Revised Definition of Casuistry

Within.this section" I‘will present a somewhat simplified
definition of casuistry and proceed to focus on the way in
which the various analogies used by groups and individuals can
be shown to reflect the values of the casuist. I will draw
directly from.the analogies used to ShOW’hOW certain.values of
the casuist become evident.
To begin, when I use the term paradigm,3O I refer to
something that is seen as a moral exemplar; viewed.as a quasi-
standard case that has been accepted as morally non-
problematic; observed as a "classic" problem for which a model
solution exists. I see paradigms as an extension or accepted
application of a rule or group of related rules. It is
through the use of paradigms that people have access to the
application of the rules, i.e. people refer back to rules
through paradigms. To clarify the relationship between
paradigms and rules, consider the rule (which I will return to
later in this section) of Exodus 20:13 "Thou shalt not

murder." The rule is understood in relation to clear cases of

13

wanton homicide such as the killing of a defenseless old woman
to steal ten dollars. This case serves as a paradigm to help
explain the rule of Exodus 20:13. On the other hand, take a
case where the same old woman is attacked by PCP-crazed thugs
with pipes, but she defends herself by knocking them off with
the .45 Magnum that she carries in her purse. Although it
would be better had she been able to avoid killing the thugs,
few, if any, would argue that she has acted wrongly in
securing her well—being. Although it initially appears in
violation of the rule against murder, this case of self—
defense serves as a paradigm to help explain the circumstances
under which exceptions to the rule apply.31

Paradigms are important to the understanding and
application of a rule and are heavily used in casuistry.
Casuistry is the process of applying an abstract moral law to
a particular case that is morally difficult or problematic.
That is, casuistry is applied morality or a form of moral case
law. A casuist takes a generally accepted moral rule or
truism.and assesses whether a particular case/problem at-hand
applies. This assessment is done by comparing the problematic
case with previously determined paradigm cases that
satisfactorily exemplifies the general rule. A casuist would
help explain a case in question by referring to a paradigm
case which most resembles the case at—hand, and the casuist
would then suggest the most appropriate path of action.

Casuistry may be diagramed as follows:

l4

nonprobiemaiic
inierpreiaiion of moral rule
with accepted ocflons

............. > Case X resoivedvia

 

 

V gcsmedigm ‘~‘~l~l’;;\ paradigm A actions
MORAL , , ../"’// _ 4 MSW\‘
RULE ‘\\\\ ' Egg? * /.,—/”7 C059 X
\“-~\. ,./ Z247, _»
a. Paradigm 4/// ,. Case X resolved via
Case C paradigm B actions
in Case X resoived via
paradigm C actions
figure 1. General diagram of casuistry.
One begins with an accepted moral rule —— for example:
Exodus 20:13 "Thou shalt not murder," or something to the

effect that it is morally wrong to murder another individual.
We develop interpretations of this moral rule over time that
allow us to apply it to everyday life. With these non—
problematic interpretations, we find certain accepted actions
that can be agreed upon as being morally sanctioned. The
paradigms or exemplar cases that provide understanding of the
moral rule become points of reference in the practice of
casuistry. To elaborate on the above example, one could have
the general prohibition of murder (Exodus 20:13) as the moral
rule. From this, one examines instances where there is
killing, with the question being whether the killing is unjust

as a form of murder or whether it is just and acceptable.

15

Jusiificaiion/denlaVresoluion
of case Y because of fit with:

Killing in

------ + Paradigm of self-defense
self—defense

Exodus ,. __-_, Kiliingio 4 ‘ Case v

y— ————~———————

20:13 moinioin honor‘ ,. -
\- . . wk Paradigm of honor

7. Killing of ‘,
non-humans “““ ‘ """"""" > Paradigm of personhood

figure 2. Revised example of casuistry using Exodus 20:13.

Several maxims that relate to killing are: A) killing in
self-defense; B) killing to maintain honor; C) killing of non-
.humans. The accepted. paradigm case provides
guidelines/examples to judge whether a case of killing is
justified or unjustified. For example:

A) Killingyin self-defense —— Individual D approaches E

with a knife with the intention of killing E. This

paradigm.might suggest that the self-defense of E, which
results in the death of D, is a justified form of

killing. It would not, however, allow D to kill E.

B) Killing to maintain honor —- Given that individuals

may protect their property, even if this protection

results in the destruction of an attacker, so can
individuals protect their honor, as honor is certainly
more important than property.32

C) Killing of non-humans -- Given an innate specisim, it

16

is acceptable to take the life of an animal or other non—

human entity.

Casuistry would take the case at hand, Case Y in the
Figure 2, and referring back to paradigm cases which resemble
Case Y, the individual would then follow the actions similar
to those which had been accepted for the paradigm case which
Case Y'most resembles. If there is not a paradigm case which
would be appropriate to follow, then Case Y could become a
paradigm case in its own right, provided that there is moral
consensus with regard to the actions to be carried out. This
moral consensus could be achieved by non-casuistical means,
but the employment of the newly—developed paradigm would be
casuistical. When faced with a new dilemma, those with
similar values may congregate and decide upon acceptable
actions for resolving the new dilenuna and, thus, further
develop a casuistical network. In other words, the
application of the moral rule is contextualized within society
(in a Marxist framework, this sounds remarkably
dialectical.”)

As suggested.earlier, the purpose of this section was not
only to define the way I will be using casuistry but also to
determine how similar the environment of contemporary
casuistry is to that of our historical casuistryu Having done
that, certain similarities and differences regarding the moral
environment of the functioning casuistry can be delineated.

Similarities

l7
. Many people today are still somewhat reluctant to embrace
casuistry because of the pejorative aura it has acquired.
. Papal authority and the idea of transferring decisions
through a casuistical hierarchy remains.

Differences
. Contemporary casuistry has primarily emerged within the
medical ethics debate and, thus, appears to be more focused on
such discussions. Historical casuistry encompassed almost all
aspects of decision-making.

. Contemporary casuistry has been an attempt to secularize
casuistry —— to appeal to generalities. It is unclear whether
this can be accomplished given the value—laden nature of
casuistry.

. The major difference, however, is undoubtably the public
sentiment towards casuistry. As is evident from the popular
nature of the historical attacks on casuistry, casuistry had
been a prevalent mainstream concept. Now, however, few lay
individuals are aware of the term’s meaning let alone its
application.

Therefore, in trying to evaluate casuistry’s place within
moral reasoning and whether it is the nature of casuistry or
the environment in which it is practiced that makes the
difference, I believe the answer to be that casuistry does
belong in the contemporary arsenal.of moral reasoning and that
both the nature and the environment are important aspects of

its development. It is the nature of casuistry to allow the

18
casuist to reach outcomes molded by his/her values, and
although the contemporary environment seems quite different
given the lack of mainstream knowledge about the topic, it
seems sufficiently similar to allow one to understand its
historical relative within this context. Thus, it would seem
that the time is right for reemergence of casuistry so long as
we recognize that it is not independent of the values of the
casuist. To make this point clearer, I present a case study

of abortion.

19

CHAPTER 2

Casuistry on Abortion: A Heuristic Device

I should make it clear from the very beginning that my
purpose is not to argue "for" or "against" any particular
position on the abortion question. Excessive amounts of
literature have already been devoted to the subject.34 I use
abortion. as a Iheuristic device to demonstrate different
casuistical approaches to one particular topic.35
Delineating the differences between a group's application of
casuistry shows the inherent value-laden nature of such an
approach along with the difficulty of reaching a consensus.

The abortion issue'was discussed most frequently in terms
of defining ensoulment36 and issues of fetal statusfi37 This
discussion has been influential in molding later dialogues
around self—defense and maintenance cflf honor/property

ownership.

Historical Casuistry of Abortion
Early Sources and Development
Historical casuistry was primarily religiously—oriented
or voiced within texts that presented values of religious
groups (such as Judaism and Roman Catholicism.) Thus, a
historical casuistry begins with early texts of the Bible and

Talmudic commentaries. As certain themes emerge, I will

20
highlight them and return to them in the section on the
contemporary casuistry of abortion.

Status/Ensoulment

 

The casuistical discussion of abortion begins with early
Biblical and Talmudic commentaries. The status of the
fetus38 is found in Exodus 21:22-23:

When.men strive together, and.hurt a woman with child, so

that there is ainiscarriage, and yet no harm follows, the

one who hurt her shall be fined, according as the woman’s
husband shall lay upon him; and he shall pay as the
judges determine. If any harm follows, then you shall
give life for life,....
The Jewish interpretation of the above passage came to view
the "hurt" as a Hdscarriage or loss of fruit and "no harm
follows" to mean that the woman survived the miscarriage.”
This case demonstrates a casuistry that, suggests either a
hierarchy of status and/or certain gender-related duties.
Elaborating, we find two cases: one in which the woman
miscarries and survives; the other in which.both the woman and
the fetus are killed. In the first case, the attacker is
liable for monetary compensation to the husband” The attacker
has wronged, but action does not demand retribution in the
form of taking his life for the life of the fetus. In the
second case, however, the woman’s life is enough to tip the
scales against the attacker, thus demanding "life for life."
"The Talmud explains40 that the embryo is part of the
mother's body and has no identity of its own since it is

dependent for its life upon the body of the woman."41 What

these two courses of action seem to suggest is that: 1)the

21

life of the fetus is something that should not be taken, but
2)the fetus holds a status below that of other developed
humans.

To help further understand the taking of fetal life, Jews
refer to two other Pentateuchal passages:

1) When men fight with one another, and the wife of one

draws near to rescue her husband from the hand.of him who

is beating him, and puts her hands on his private parts,

then you shall cut off her hand; your eye shall have no

pity. Deuteronomy 25:11—12.

2) You shall not go up and down as a slanderer among your

people, and you shall not stand forth against the blood

of your neighbor. Leviticus 19:16.
Although.at first glance these passages appear to be unrelated
to abortion; the Mishnah draws upon Deuteronomy and Leviticus
to state: "These may be delivered at the cost of their lives
he that pursues after his fellow man to kill him...."42 This
would suggest an argument of pursuit, which will be discussed
more fully in the section on self-defense. But to bring it up
here is to highlight the weak surface logic43 that is
asserted in passages of the Talmud such as Sanhedrin 72b and
73a which maintains that it is one’s "duty to disable or even
take the life of the assailant to protect the life of one’s
fellow nann"“‘ Although this coincides with Sanhedrin 87,
neither of these two commentaries seem to connect with
Deuteronomy 25:11-12. The passage from Leviticus says that it
is wrong to act against the blood of your neighbor. The

Sanhedrin.allows you.to protect yourself when.being pursued by

such wrongs. Deuteronomy 25, however, seems to present

22

another rung in the hierarchy of status mentioned.earlierx We
would expect that a wife going to aid her husband to be an
obligation. Here, however, the woman becomes the villain.
The reason for this could be related to either status of the
woman and fetus, gender-related obligations, or a combination
of both. First, the woman is considered inferior to man yet
of more value than a fetus, creating a hierarchy of fetus,
woman, man. The fetus receives the lowest status because it
has no identity outside of the woman” .A second possibility is
that the woman has certain gender-related obligations which
she cannot violate. For example, the reason that she is
punished for touching the private parts of another may not be
so much because of inferior status as it may be because she
has a greater duty not to violate the taboo that comes with
her'sex; Furthermore, such.gender—related.duties may override
duties to defend her husband or to defend herself. Another
possibility to explain the above passages is found in a
combination of the two above suggestions.

Within the Talmud” we do find one source of guidance that
directly relates to abortion:

A woman who is having difficulty in giving birth, it is

permitted.to cut up the child inside her womb and take it

out limb by limb because her life takes precedence.

However, if the greater part of the child.has come out it

must not be touched, because one life must not be taken

to save another. Oholot 7:6.
The first part of this passage reaffirms the woman’s life as

being more important than that of the fetus. The second part

is somewhat confusing, giving the casuist two ways to act with

23

regard.to a difficult abortion: 1) if the fetus is endangering
the life of the mother, then the life of the fetus may be
taken because the rights of the fetus are not equal to those
of the woman. In the second case, however, the fetus upon
emergence of its greater part, gains rights equal to or
greater than those of the woman. Why is this so?

Commenting on this, Sanhedrin 72b states that

Once the child’s head has come forth it may not be

harmed, because one life may not be taken to save

another. But why so? Is he not a pursuer with intent to

kill? There it is different, for she is pursued by

heaven.45
On the face of it, the importance of the "greater part" seems
a bit odd. The concern seems to be focused around when a
fetus "looks" like a child” ‘With the emergence of the head or
greater part, one can see that this growing organism "looks
like us." Turning towards embryology to understand this, we
see that the fetal period begins around the ninth.week (before
the ninth week is referred to as the embryonic period.) By
the seventh week, we see that the fetus resembles a sexless
E.T.“’ By the ninth to tenth weeks, we begin to see the
development of sex-specific genitalia accompanied by a face
that has human appearance.47

Rashi (1040-1105), the eminent Biblical and Talmudic
commentator, explains the Talmudic passage (Sanhedrin 72b) as
such:

As long as the child did not come out into the world it

is not called a living' being and it is therefore

permissible to take its life in order to save the life of
its mother: Once the head of the child.has come out, the

24

child may not be harmed because it is considered as fully
born, and one life may not be taken to save another.48

In this, our answer to the question of why the greater part is
important, is revealed; prior to the emergence of the head,
the fetus is not called a "living beingu" Upon the emergence
of the greater part, we can distinguish it as a "living
being."

In his responsa, Panim Me—iroth, Rabbi Meir Eisenstadt
(1670-1744) posed the following case to help make sense of
cases such as the above: "A woman.had.difficulty giving birth,
and the child came out feet first. Is it permitted to cut up
the child, limb by limb, in order to save the mother?”9
Rabbi Eisenstadt and others tried to resolve this question by
stating that "birth is constituted by the extrusion of the
head or majority thereof, or in the case where the head came
out last, the extrusion of the majority of the body."so It
was decided that before the head emerges, the child (fetus)
resembles a pursuer and the life of the mother would be more
important than the fetus'. With the emergence of the head,
God’s plan. becomes more clear and the child. no longer
represents a child pursuing to kill but now is an act of
heaven that should not be avoided.51 From this, it becomes
clear when the life of the mother ceases to take precedence
over the life of the fetus/emerging child.

Summing up what we have established to this point, Jews
rely heavily upon the appearance of the fetus to determine its

status. Before this appearance, the life of the fetus is of

25
less importance than that of the woman. Once the fetus has
emerged and visibly resembles a child, then the life of the
woman and the child are of similar value.

Catholics are lesslconcernednwith.the status of the fetus
than they are with the ensoulment of the fetus. Aristotle's
view of ensoulment as a progression from a vegetative soul to
an animal soul to a rational soul was very influential in
forming early Christian thought about ensoulment.“Z 13y the
seventeenth century, however, this was viewed as both
imaginary and incomplete because there was no way to tell when
souls changed. Paulo Zacchia, a seventeenth century Roman
physician, argued that a rational soul was "infused in the
first moment of conception."53 Despite his belief in
immediate infusion, Zacchia.conceded.that punishment should be
milder for abortions occurring before 40 days post-conception.

St. Alfonsoide Ligouri disagreed with Zacchia and felt it
best to "rely on the Septuagint translation of Exodus, which
Zacchia dismissed as 'a commentary’ which was not Scripture,
and to hold it ’certain’ that there was not immediate

"“ However, it was clear by the early 17005 that

ensoulment.
Zacchia’s view was winning favor. This belief of immediate
ensoulment gained support because of continued devotion to the
Immaculate Conception, the belief that Christ, born of the
Virgin Mary, was Christ (soul and all) at the instant of

conception.55 This idea of ensoulment had become so

entrenched that by the mid-18005, Pius IX had "proclaimed as

26
a dogma of the Catholic Church that Mary was set free from sin

"”6 With immediate

’in the first instant of her conception.
ensoulment came, at the point of conception, the need for the
protection of the fetus.

The rationale behind ensoulment and protection of the
fetus at the point of conception is derived from natural law
and a concern less with human image than with the soul and
human.potentialn In.brief, the Doctrine of Natural Law; which
is of immense importancelto Catholic theology, states that the
best way to understand the will of God is to observe nature.
What is natural is of God and should be followed.” For
example, because reproduction and birth are considered to be
natural acts in compliance with God’s intention for humankind,
natural law suggests that we should not interfere with the
bringing to fruition of these acts. Thus, as the development
of a fetus is the beginning of a natural progression towards
birth, it should not be interfered with. When Catholics argue
that ensoulment takes place at conception, the fetus assumes
even greater moral value so as to forbid interference with
allowing the soul to developznaturally: Beyond this aspect of
ensoulment, is the paradigm of self—defense which is invoked
at times when the paradigm of ensoulment does not coincide
with the circumstances at hand.

The idea of when a fetus' life becomes equal to that of
the woman is as important to Jews as when a fetus becomes

ensouled is to Catholics. 'This difference accounts, in part,

27
for the differing approach of the historical casuistries. For
Jews, the fetus becomes equal at the instance which we can
recognize the fetus as like ourselves —- male or female with
distinctively'human.characteristirmt Once the fetus is viewed
as a.person, then.it has rights like other persons. Catholics
are more concerned.with the time of ensoulment, or the time at
which a fetus receives a soul from God.
Self-defense

The idea of self—defense was alluded to earlier in
Rashi’s discussion of pursuit related to Deuteronomy and
Leviticus. Given that the status of the fetus is viewed by
Jews as being inferior to developed humans, the idea of self-
defense is important to prevent abuse of the fetus’ inferior
status. That is, just because the fetus is seen as less
important than.the mother, its potential accords it some moral
value which one should not violate without justification. The
limits of the fetus’ claims to continued development revolve
around pursuit, or the intentions of one to follow and harm
another.

Although not a penal crime, Jews consider the destruction
of a fetus prior to birth to be a serious moral offense; the
status of the fetus does not permit such actions without
cause.58 Allowing pursuit to help explain when there is
justifiable cause, we can begin to understand how a Jewish
casuistry might work in placing the fetus within such a moral

framework. Thus we can examine three different cases: 1) the

28
progressing fetus that poses no threat to the woman; 2) the
life of the fetus threatening the woman; and 3) the greater
part of the fetus having emerged, yet threatening the woman.
A summarized Jewish response to these cases would allow
abortion only in the second instance.59

Examining the first case where the fetus posses no threat
to the woman, it should be pointed out that "with a few
notable exceptions, Jewish authorities agree that, once
conceived, a child has a right to live even if there is a
chance for it to be born malformed or in poor health."60
Thus, the fetus being a fetus results in a certain amount of
protection, for as discussed earlier, pursuit does not yet
enter the picture.61 The latter two cases distinguish types
of pursuit: one being pursuit by the fetus, the other being
pursuit by God or nature.

In this second case, the life of the fetus threatening
the woman, we find the fetus’ pursuit of the woman to warrant
defensive measures by the endangered woman. Oholot 7:6 allows
abortion when the "woman is having difficulty in giving
birth." The reason behind this is the secondary nature of the
fetus. As Maimonides interprets the Mishnah's stance:

This is moreover a negative commandment, the sages have

ruled that if a woman with child is having difficulty in

giving birth, the child inside her may be taken out
either by drugs or by surgery, because it is regarded as
one pursuing her and trying to kill her. But once its
head.has appeared, it must not be touched, for we may not

set aside one human life to save another.62

The appearance of the head is more directly related to

29
the last part of Oholot 7:6 and to the third case, to be
discussed next, but the implications of Oholot and.Maimonides
are: 1) an abortion must be in response to a threat to the
woman’s life and 2) the destruction of the fetus, although a
grave offense, is not murder.63 The limits of these threats
to the woman's life, however, are not stated.

The seventeenth.century Rabbi Israel Meir Mizrahi, on the
other hand, argues that abortion would be permitted if it "was
feared that the mother would otherwise suffer an attack of
hysteria."“ .Although "the early 17th century scholar,
Joseph Trani of Constantinople, regarded any abortion as
lawful when performed in the interest of the mother's health,
Isaac Lampronti, the Italian.rabbi-physician.of the first half
of the eighteenth century, could see no justification for the
induction of abortion if the mother's life was being attacked
not by the child [but] by a disease afflicting her."‘55 As
indicated earlier, however, the argument changes with the
emergence of the greater' part of the fetus. Tifereth
Israel66 states that the argument of pursuit is completely
inappropriate after the emergence of the head because it is an
act of God if the child endangers the mother's life. There is
no intention on the part of the child to kill the mother.67

The woman is being pursued.by God and nature rather than ‘
the child” The distinction again relates to the status of the
fetus. When the greater part has emerged, the fetus gains a

status equal to the mother. Because of its relative

30
innocence, the mother is not to take its life as the actions
of the child are seen as actions of God.

’ Having outlined the three senses in which the argument of
pursuit can be thought of as applicable or not, let us turn to
a problem presented by Rabbi Eliezer Deutsch (1850-1916) in
his responsa entitled Peri Hasadeh:

A woman who had been pregnant a few weeks began to spit
blood. Expert physicians said she must drink a drug in

order to bring about a miscarriage. Should she wait, it
would become necessary to remove the child by cutting it

up, endangering the life of the mother. Is it
permissible to induce the miscarriage by means of the
drug?68 »

Examining the case, we find that the woman is in danger and
that the greater part of the fetus has not yet emerged.
Recognizing this, we place this case in the second category
above, the life of the fetus threatens the woman. Rabbi
Deutsch concludes that such an abortion would be permitted for
three reasons: "1) Until three months after conception there
is not even a foetus. 2) No overt act is involved in this
abortion. 3) The woman herself is doing it and it is thus an
act of self-preservation."69

So far, we see that the Jewish casuistry of abortion
illuminates a belief in status, a.hierarchy of status with the
woman above the fetus until the fetus gains birth, and the
need for an abortion to be done in_self—defense rather than on
a whim.

Given the Catholic position on ensoulment at conception,

the general ruling would be a prohibition of abortion.

31

Casuists, however, made use of special circumstances to find
instances in which abortion might be acceptable. In part,
acceptability was found through the application. of the
Doctrine of Double Effect (DDE). DDE allows one morally to
carry out an action that has bad consequences which are
secondary to the primary intention. In other words, one can
do act A, even if it is known that outcome B is a negative
result of act.ZL The primary and desired intention must,
however, be outcome A of act A, and not outcome B.70

As noted earlier, throughout Catholic reasoning, we see
reflections of Natural Law. Acknowledging the evils of
contraception which forbade the interruption of the course of
insemination, the Jesuit Tomas Sanchez (1550-1610) conceded
that logically abortion would be forbidden. For as with the
condemnation of contraception which interferes with God's
natural plan of procreation, abortion is an obvious
interference with the course of pregnancy.

Sanchez argued that rape could be one exception which
would permit abortion, despite its interference with the
course of pregnancy: The argument he set forth to allOW'thiS,
gave the woman limited rights similar to a property owner.
The victim of the rape had not solicited the semen and she was
therefore not a voluntary possessor of it. Having limited
rights, Sanchez argued that, providing that abortive action
was taken immediately, the victim could lawfully expel the

semen which she was holding contrary to her desires."1 The

32

ability of the woman to do this was analogously viewed as
being similar to "a property owner who was entitled to pursue
and strike a thief until he had reached a safe place."72

But much like the Jewish view of the fetus pursuing the
mother, there were limited grounds under which a property
owner could pursue a thief or a woman could pursue to expel
semen. For like a Jewish woman could no longer terminate a
pursuing fetus once there was the emergence of the greater
part, and a property owner could not strike a thief upon the
thief’s.arrival at a safe place, the Catholic woman could not

expel the fertilized egg once it had reached the safety of

implantation on the uterine walls.

Leonard Lessius (1554-1623), a Belgian Jesuit, agreed
with Sanchez about the wrongness of contraception,73 which in
his eyes made abortion even more abominable. He did not

agree, however, with the manner by which Sanchez justified
abortion in the case of rape. Lessius believed that the
killing of the embryo was lawful provided that the "direct
intention" was not to killf“ That is, "the intent to kill
was indirect [per accidens] if the dominant purpose was to

"75

save her [the mother’s] own life. Invoking the DDE was
the only way acceptably to allow the outcome of an abortion.
Rights were not the issue. .Although Sanchez foreshadows later
contemporary discussions that argue casuisticly about rape in

language of the rights of a "property owner", the views of

Lessius with regard to rape, dominated the time period.

33

As alluded to earlier, the DDE was used to allow killing
so long as it was an indirect result of some justifiable
action, e.g. self-defense. Sanchez appealed to this doctrine
in cases of abortion for therapeutic reasons. In cases where
the mother would die if the abortion was not performed (and
the fetus had not yet been ensouled), the fetus was seen as
not being unjust, but merely dangerous. The fetus was not
intentionally causing harm, but in the words of Sanchez, it
"invades, and; as it were, attacks"76 the woman. There would
be a requirement of charity that the mother “sacrifice herself
only if the child could.be born and.baptized and so assured of
spiritual life,"77 but the attacking of the fetus was likely
to result in its own destruction. Thus, when both the woman
and fetus are likely to die if no action is taken, the DDE was
invoked to save at least one life.78 This does not mean that
DDE evaluates the situation to save the optimal number of
lives. Rather, DDE allows one to pursue a course of action
that might normally be forbidden if the action were evaluated
solely on the outcome. DDE allows the action so long as the
evil was not intended but a non-ideal result.

Implementing the Thomistic principle of Double Effect,
the intention is not to kill the embryo, but rather to save
the mother’s life; as a result of saving the mother’s life,
the embryo is unintentionally'killedd This is an act of self-
defense, and not a direct act of killing. This saving of one

life as opposed to the sacrifice of two is supported by

34
Sanchez’s bull analogy:

If a pregnant woman were attacked by a bull, she could

run though running caused an abortion; so here she could

use means necessary to save her life.?
In trying to escape the bull, her primary intention is to save
her life. A secondary result is the abortion of the fetus.
Similarly, if the life of the woman.was being threatened, then
primary actions could be taken to save the woman’s life
provided that the resulting abortion were secondary.

This is reaffirmed by St. Alfonso de’ Liguori (1696-1787)
who agreed that the justifiability of any act revolved around
the mother’s intention. Liguori’s views were more rigid than
those of Sanchez, stating that even in cases of rape, the
"most common opinion" held that "it was never licit to expel
the seed."80 The fetus was neither a thief nor an aggressor
for "the danger of death in childbirth was ’far distant,’ the
fetus was .not a ’present aggressor,’ and abortion was not

'“1 Here, Liguori chooses not

justified to avert the danger.
to utilize DDE and argues for protecting the fetus at all
costs because of its innocence and possession of a soul at the
point of conception. As the fetus progressed, it became more
and more worthy of being saved.

Since it was forbidden to abort an early fetus, "so much
less is it lawful to expel the fetus which is closer to human
life."82 In the end, Catholics saw a shift from

acceptability under some circumstances, tx> a general

prohibition based on the "most common opinion."83 This "most

35

common opinion" was what was generally agreed. upon and
therefore "safer" and to be followed.84

In summary, for Jews what matters is how real the threat
to life is from the view of a third party observer. For
Catholics, we may view abortion from the standpoint of the
mother and her intentions, i.e. doctrine of double effect:
killing of a fetus as the result of removing a cancerous
uterus versus the need for a craniotomy. In both, the
intention is to save the mother’s life and Jews would deem
this as acceptable; for Catholics, in the former the killing
of the fetus is accidental whereas in the latter, the killing
is intentional and primary and thus frowned upon.

Maintenance of Honor

A final paradigm situation to demonstrate the value-laden
nature of casuistry is that of our taking the life of a fetus
to prevent tarnishing of the family name by out-of-wedlock or
illegitimate births. Rabbi Yair Hayyim Bachrach (1639-1702),
in his responsa Havoth Yair, presented the following case for
analysis:

A married woman committed adultery and became pregnant.

She then had pangs of remorse, wanted to do penance, and

asked whether she could swallow a drug in order to get

rid of the "evil fruit" in her womb.85
Referring back to stages of development, Bachrach concludes
that the fetus could.theoretically'be aborted because the life
of the woman has greater status than that of the fetus. He

warns, however, that it is best not to take such lives as

society tends to frown upon such actions.86

36

Rabbi Emden, an eighteenth-century authority, believed
that the capital guilt of the adulteress would also "forfeit
the life of the fruit that she carried."87 This would imply
that it would not matter if the fetal life was taken, as
Bachrach theoretically suggests. Others, however, maintained
that there could be no distinction between a bastard and a
legitimate fetus in this respect, and that any sanction to
destroy such a product would open the floodgates to immorality
and debauchery.88

What this suggests is that abortions prompted by the
woman’s desire to maintain the honor of her family name,
should not be permitted. This reinforces the requirement that
the woman’s life be threatened in some sense.‘89 Therefore,
our understanding of historical Jewish casuistry is influenced
by Jewish values of hierarchy and threat to the woman caused
by a fetus of less moral value.

Given that Catholics developed a doctrine against
abortion that became increasingly strict, few have argued for
abortion to maintain honor. Sanchez, however, used the case
of the fetus as attacker as his paradigm case for discussing
abortion with regards to maintenance of honor. Having argued
that self-defense allowed for the fetus to be aborted, Sanchez
considered three extensions of this paradigm case.

1) "Suppose thelgirl had conceived in.unlawful coitus and
her relatives would.probably kill her if they discovered that

she was pregnant“ Might she kill the fetus to save her life?"

37

In probability, Sanchez found this to be acceptable because
the woman’s life was in danger.90

2) "Suppose she was betrothed to one other than the man
who had impregnated her, could not without scandal terminate
the engagement, and ran the risk of bearing another’s child to
her husband” Could she avert the danger by destruction of the
embryo?" Again, in probability, Sanchez found this to be
acceptable for her life was in danger.91

3) A third case turned to by Sanchez involved the
reputation of the girl. In this instance, it was believed
that "if an abortion were merely to protect a girl’s
reputation, the jperil. was too remote, the fetus not an
attacker,... abortion. would. be unjustified."92 .Abortion
could. only' be done if the 'woman’s life 'was in danger.
Abortion continued to be forbidden if it was done to "hide sin
or further lust."93

Although Sanchez was not so bold as to argue that the
woman has undeniable rights of choice, he was more lenient
than most Catholic casuists in saying that when the woman’s
life was in danger due to external circumstances of pregnancy
beyond her control, the woman had the choice to maintain her
honor and proceed with the abortion. The reasons behind
acceptance was still threat to the woman’s life. Sanchez was
more liberal than most Catholics of his day, his discussion
still reveals some basic Catholic values regarding abortion,

i.e.' due to the nature of the fetus being ensouled. at

38
conception, only something as dramatic as the endangering of
the woman’s life justifies abortment (thanks to tflua DDE.)
With this in mind, we can proceed to analyze the way in which

the contemporary casuistical discussion of abortion is framed.

Contemporary Casuistry of Abortion
Thomson Dialogue

There is a vast amount of literature that discusses
contemporary casuistry of abortion; too vast to do justice to
here. Given the seminal nature of Thomson’s article, and the
ensuing dialogue that exists even today, I have decided to
focus on the analogies presented by Thomson in her "A Defense
of Abortion" and the response of others to these analogies.
In. Thomson’s article, we find. contemporary' analogies of
ensoulment and self-defense. The issue of maintaining honor
is no longer as relevant to the discussion as it was
historically (although it certainly remains to weigh heavy in
the minds of those contemplating an abortion) and the focus
has shifted towards issues of ownership and choice. The
historical relevance of these contemporary discussions recurs
throughout.

Ensoulment/Personhood

In a contemporary secular discussion of abortion, Thomson
uses the analogy of an acorn becoming an oak tree to
understand the status of a fetus. Here she suggests that the

fetus does not equal.a.person, just as an acorn does not equal

39

an oak tree.94 For as an acorn does not possess the essence

of an oak tree -- it merely possesses the potential for being
an oak tree —- the fetus does not possess the essence of being
a person95 —- although it certainly possesses the
potential.

Although this simple argument put forth by Thomson seems
attractive and compelling, the roots of it (no pun intended)
seem reflective of the historical "Jewish idea of status." As
seen in the historical section on Jewish casuistry, the fetus
did not have significant status until the emergence of the
greater part. Similarly, here the fetus does not have the
rights of a person until it is recognized as a person, like an
acorn does not have rights of an oak tree until we can
recognize it as tree.96 Thomson recognizes the fetus as
having recognizable human characteristics (e.g. toes, fingers,
etc.), "by the tenth week."97 This recognition coincides
with an affinity for Jewish casuistry.

John Finnis, on the other hand, sees a granting of rights
by the tenth week as incomplete.’98 He presents an analysis
of Thomson’s acorn analogy that has reverberations of a
distinctively'Roman.Catholic idea of ensoulment. .Againq as we
see in the historical section of casuistry, Catholics have
tended to view ensoulment as occurring at the point of
conception. Finnis begins by acknowledging that an acorn can
remain dormant for years. But,‘

plant it and from it will sprout an oak sapling, a new,
dynamic biological system that has nothing much in common

40

with an acorn save that it came from an acorn and is
capable of generating new acorns. Suppose an acorn is
formed in September 1971, picked up on 1 February 1972,
and stored under good conditions for three years, then
planted in January 1975; it sprouts on 1 March 1975 and
fifty years later is a fully mature oak tree. Now
suppose I ask: When did that oak begin to grow? Will
anyone say September 1971 or February 1972? Will anyone
look for the date on which it was first noticed in the
garden? Surely not. If we know it sprouted from the
acorn.on.1 March 1975, that is enough (though.a biologist
could be a trifle more exact about ’sprouting’); that is
when the oak began. A fortiori with the conception of a
child, which is no mere germination of a seed. Two
cells, each with only twenty-three chromosomes, unite and
more or less immediately fuse to become a new cell with
forty-six chromosomes providing a unique genetic
constitution... [which] will substantially determine the
new individual’s makeup.99

 

Within this selection from Finnis, we find that the
uncertainty of when an acorn.becomes an oak tree parallels the
uncertainty of when a fetus becomes a person. As decided by
earlier casuists, Finnis found it best to follow the safest
path, granting the child.rights at conception stating that the
combination of the two cells determines the make-up of an
individual. One can almost sense Finnis’ agreement with the
"most common opinion" of earlier Catholic casuists, being
rooted in natural law.100

Part of the disagreement between Thomson and Finnis is
derived from their selection of paradigm cases of beings with
full moral status. A Jewish argument is one that links one’s
status with its entering into the human community. Although
the acorn analogy hints at suggesting this, Thomson does not
develop it fully enough for the reader to discern. The

reference to the tenth.week and the fetus having human traits,

41
is however, the foundation of a Jewish argument. A Catholic
argument is one that links an ontological status of the fetus,
with a natural act of God. Finnis’ argument seems to be at
least implicitly reflective of this.

Given that the acorn analogy is not the focus of Thomson’
article, and in fact occupies very little space, I turn to a
discussion by William Cooney101 and Chenyang Li102 that picks
up where Thomson left off. To categorize somewhat, Cooney is
closer to Finnis’ camp whereas Li more closely resembles
Thomson.

The argument Cooney puts forth suggests that all person-
denying arguments for abortion do not work. Using Thomson’s
acorn analogy as a flash point, he reinforces the distinction
that an acorn and an oak tree are not identical.

It is nearly impossible to hang a rubber-tyre swing from

an acorn; and a love-sick couple which desires to carve

its mark ’John loves Mary’ will find it difficult going

on an acorn, unless Johnny has a very small knife and a

very steady hand.103
The jproblenl with. this argument rests in our attempt to
extrapolate from the acorn-oak tree analogy to the fetus-
person debate. This is problematic because we do not value
oak trees as much as we value persons. "The more we value oak
trees, the less the difference between acorns and oak trees
would impress us."104

To explicate this, Cooney creates the analogy of a Druid

oak-tree worshipper. If the non-Druid neighbor cut up oak

trees to make firewood, the Druid might view this destruction

42

as "tantamount to murder." Furthermore, if this non-Druid
started a kitty-litter business and argued that acorns "make
the best kitty-litter in the world because of their
distinctive odour and texture," one would assume the Druid to
be aghast. "For the Druid, the life—force which.exists in the
oak tree and whichlmakes it divine, also exists in the acorn."
Similarly, "the ‘more we 'value jpersonhood, the less the
distinction between fetus and person becomes relevant."105
This fun and imaginative argument can be understood to be
implicitly connected with a Catholic argument; the essential
"life-force" of the oak tree exists within the acorn, whereas
the essential "life-force" or soul exists, for Catholics,
within the fetus.

Li, on the other hand, believes that the acorn analogy,
which argues against the slippery slope of personhood, is
valid.106 Because we cannot point to a line that
distinguishes fetus from person, it does not follow that there
is no difference between the two.107 For just as we cannot
tell when a continuously developing fresh egg becomes a
chicken, we can recognize there being a difference and are
quite comfortable calling eggs ‘"eggs" and chickens
"chickens."108

Returning to the acorn analogy, Li puts the argument
against personhood at conception in the following form:

(1) it is a truth of common sense that an acorn is not an

oak tree;

(2) it is also true that there is no clear cut-off point
between an acorn and an oak tree; and

43

(3) therefore it is false to say that if there is not a

clear cut-off point to be made in the development of A

into E, A is _£_3_.1°9
With regard to Cooney’s Druid analogy, Li argues that valuing
oak trees more does not mean that we value acorns equally.110
Thus, the acorn—oak tree analogy proves that the fetus is not
a person simply because we do not know when to draw a line to
separate the acorn form the oak tree or the fetus from the
person.

Although Li’s argument against personhood at conception
does not show any direct affiliation with a Jewish argument of
status, it is not opposed to it. Thomson’s suggestion that
the tenth week post-conception is important in that we find
the development of distinctly human characteristics, indicates
that the values of a historical Jewish casuistry are still
evident in the contemporary casuistical discussion of
abortion. Finnis and Cooney’s belief that because of the
great value we hold for persons, we should value fetuses as
persons at conception, recognizes theldifficulty in separating
the two. This reinforces the existence of a casuistry holding
certain Catholic values within a secular debate. The extent
to which this debate is secular and free of historical values,
will become more clear as we examine the paradigm of self-
defense.

Self-defense
The most well known.analogy created.by Thomson is that of

the famous violinist. Although much of her discussion about

44

this analogy is concerned with individual rights (which will
be discussed in the section on property ownership), I will
focus here on that aspect of the violinist which deals with
self-defense. I will also draw upon Thomson’s house analogy
to further explicate her use of the paradigm of self—defense.

To move beyond the discussion of ensoulment, Thomson
begins with the premise that every person has a right to life
and that the fetus shares this right. There are times,
however, when the fetus’ right to life becomes secondary to
the woman’s. Despite the logical premise that "a person’s
right to life is stronger and more stringent than the mother’s
right to decide what happens in and to her body, and so

"111 a case of self-defense could be one such

outweighs it,
instance when the woman’s right outweighs that of the
fetus.112

Consider the case of a famous violinist (V) with a fatal
kidney ailment. Person A is captured by the Society of Music
Lovers. A wakes up to find that V has been attached to her
kidneys because A has the appropriate blood match for V.
Because the renal system of V is extracting toxins from the
blood of V, if V is unplugged from A, V will die.113

Unfortunately, V’is putting excess strain on the kidneys
of A which will result in the death of A within a month.
Because of this danger posed to A, Thomson feels that A

morally can unplug the connection to V3 Mdthout committing

murder. "If anything in the world is true, it is that you do

45
not commit murder, you do not do what is impermissible, if you
reach around to your back and unplug yourself from that
violinist to save your life."114
One’s right to life does not necessarily guarantee one’s

1” if that usage endangers

right to use another person’s body
the life of the person whose body is being used. For "the
right to life consists not in the right not to be killed, but
rather in the right not to be killed unjustly."116 Thus,
when a fetus is threatening the life of a woman, Thomson
suggests that by analogy of V being attached to A, the woman
can defend herself from the threat of the fetus. Such.defense
is not viewed by Thomson to be an unjust killing, insofar as
the fetus resembles the violinist.

In an attempt to strengthen Thomson’s case for the
violinist, Wennberg proposes the image of the violinist as the
music lover’s son. Ikaconcludes that "even.though.turning the
stranger into a son may alter our moral evaluation of the
case, [it does not]... alter our conviction that we should not
legally force the mother. to remain hooked—up to the
violinist."117 Thomson and Wennberg, however, have set up a
case which implicitly supports a Jewish position where the
life of the individual woman being attacked is more important
than thatiof the attacker, regardless of the relationship
between woman and attacker. This is also consistent with a

Catholic position, although Catholics are more likely to push

for the woman to sacrifice her life for that of the fetus, in

46
order to secure infant baptism.

Although Thomson admits that the woman cannot safely
abort the fetus herself, unlike when she reaches around.to her
back to pull the plug disconnecting V, she feels that using a
third party to assist in aborting the fetus is nonproblematic.
Thomson believes the woman owns her body and is entitled to
the unencumbered use of her kidneys.118 Finnis challenges
this assumption.of ownership and.the claim.that unplugging the
violinist is ethically identical to the killing of a child in
an abortion. This challenge comes from the manipulation of
the scenario in the following way:

Suppose, not simply that ’unplugging’ required a

bystander’s intervention, but also that (for medical

reasons, poison in the bloodstream, shock, etc.)
unplugging could not safely be performed unless and until
the violinist had been dead for six hours and had
moreover been killed outright, say by drowning or
decapitation (though not necessarily while conscious).

Could one then be s9 confident, as a bystander, that it

was right to kill the violinist in order to save the

philosopher?119
The point Finnis is making is that "the violinist-unplugging
in Thomson’s version is not the ’direct killing’ which she
claims it is, and.which she must claim it is if she is to make
out her case for rejecting the traditional principle about

"”0 Thomson cannot simply extrapolate from

direct killing.
the violinist to the fetus because the relationship that the
violinist and the fetus have with the woman are dissimilar
although the relationship that the two have with the mother is

significant. Schwartz picks up on this: "the very thing that

makes it plausible to say that the person in bed with the

47

violinist has no duty to sustain him: namely, that he is a
stranger unnaturally hooked up to him, is precisely what is
absent in the case of the mother and her, child."121 Tying
this in with a traditional rule about abortion which utilizes
the DDE,122 abortion can be conducted only if killing the
fetus is not directly intended. As for the violinist being
the‘woman’s child, that suggests further dissimilarity'between
the violinist and the fetus.

Finnis moves on to show three ways in which the case of
the ‘violinist, as presented. by' Thomson, differs from la
"therapeutic abortion performed to save the life of the
mother.... (i) no bystander, (ii) no intervention against or
assault upon the body of the violinist, and (iii) an
indisputable injustice to the agent in question. Each of
these factors is absent from the abortion cases in
dispute."123

Although Thomson sees the unplugging of the violinist as
a justifiable act of self-defense and.an.assertion.of property
rights (protecting one’s property from a violinist that is
taking something that is not his to take), Finnis emphasizes
the disanalogy between the case of the violinist and the case
of the aborting'motherx It then.becomes a casuistical problem
to decide whether this disanalogy is significant. To do this,
one may have to appeal to the background of larger moral

beliefs, e.g. the moral status of the fetus or a mothers

obligation to care for a child” Upon being forced to do this,

48
we find that the fetus has definite person status as far as
Finnis is concerned. Furthermore, it would seem that Finnis
views the woman as having more of an obligation to the fetus
and the violinist, than does Thomson.
Appealing to the idea of self-defense, English.provides
an.analogy'which.is used.to help understand.Thomson’s argument
of self-defense:
Suppose a mad scientist, for instance, hypnotized
innocent people to jump out of the bushes and attack
innocent.passers-tw'with.knives. Iijou.are so attacked,
we agree you have a right to kill the attacker in self—
defense, if killing him is the only way to protect your
life or to save yourself from serious injury. It does
not seem to matter here that the attacker is not
malicious but himself an innocent pawn, for your killing
of hinlis not done in.a spirit of retribution but only in
self defense.124

A.self—defense model similar to the above, "supports Thomson’s

point that the woman has a right only to be freed from the

"”5 Such cases are

fetus, not a right to demand its death.
easy to justify if one is clearly an unjust attacker and the
other a helpless victim. English’s point, however, is that
self-defense applies even when the attacker is not unjust.
Another scenario created by Thomson to support the right
of a woman in self-defense, is that of the house analogy.
The first part of the house analogy, resembles the growing
Alice in Lewis Carroll’s Alice in Wonderland:
Suppose you find.yourself trapped in a tiny house with a
growing child. I mean a very tiny house and a rapidly
growing child -- you are already up against the wall of
the house and in a few minutes you’ll be crushed to
death. The child on the other hand won’t be crushed to

death; if nothing is done to stop him from growing he'll
hurt, but in the end he’ll simply burst open the house

49

and walk out a free man.126
She believes that causing the death of the growing child is
acceptable under these circumstances, on the grounds of self-
defense. And by likening the fetus to the growing child and
the mother to the "person who houses the child," one can see
her acceptance for abortions in self-defensen One is reminded
that "the mother and the unborn child are not like two tenants
in a small house which has, by an unfortunate mistake, been

"”7 Furthermore,

rented to both: the mother ngg the house.
she has every right to defend herself as one can defend one’s
property.

In light of the background. assumptions employed in
Catholic casuistry, this seems to mark a fundamental
departure. Whereas Catholics would deny that the woman has
ownership of her body, stating perhaps that she has her body
on Divine loan, Jews are more willing to give the woman
ownership of her body because they do not equate the growing
fetus with full personhood. As the argument stands now, we
find that Thomson’s liberal View of self—defense aligns more
closely with that of a historical Jewish View of self-defense,
one which even allows for psychological threats as indices of
justifiable self-defense. Finnis, in his disagreement
regarding the self-defense aspect of the violinist analogy,
reverberates the values of the earlier Catholic casuists of

the requirement of indirect killing along with the sacredness

of the ensouled fetus. .As it is suggested above, the paradigm

50
of self—defense has certain.commonalities With.thejparadigmrof
property ownership, to which we will now turn.
Property Ownership/Choice

In our historical discussion on maintenance of honor,
Sanchez hinted at the idea of choice but did not pursue it,
arguing that a threat to the woman’s life was still necessary
to carry out an abortion. The Jewish casuists such as
Bachrach and Emden suggest that the woman might defend her
honor and choose to abort the fetus if the pregnancy posed a
physical or psychological threat to the woman. This choice
historically associated with defense of one’s honor has, in
the contemporary debate, become a choice to assert property
ownership. Carrying over the house and violinist analogies
from the discussion on self-defense, we see an incomplete
departure from the discussion on maintenance of honor. I say
incomplete because although maintenance of honor is no longer
the focal point of the contemporary discussion, the values
apparent in the historical discussion remain.

Returning to the violinist analogy, Thomson suggests that
the woman has a right to make decisions regarding her body.
To argue this, she creates three different cases of the
violinist (V) with kidney failure, being attached to another
person’s (A’s) kidneys. 131 this rights discussion, the
attachment of V to A does not harm A.

Case 1: Attachment of V to A lasts nine months.128

Case 2: Attachment of V to A lasts for an extremely long

51

period of time such as nine years or even the rest of her
life.”9

Case 3: Attachment of V to A.lasts a short period of
time, e.g. one hour.130
All things considered, "nobody has any right to use your
kidneys unless you give him such a right."131 Although the
varying length of time serves to make her point about the
burden to one’s rights, she argues that although one "ought to
allow him to use your kidneys for that hour -— it would be

"1” the woman is under no moral

indecent to refuse
obligation to do so. Although it would certainly be nice if
the woman share her kidneys with the violinist, Thomson views
the kidneys as being the woman’s to share only if she wants.
No one possesses any claim to her kidneys other than what she
is willing to grant.

In the house analogy, Thomson again suggests ownership.
She asks: "if the room is stuffy, and I therefore open a
window to air it, and.a burglar climbs in" does it follow that
the burglar has any right to be inside the house? Thomson

3 As applied to abortion, the fetus is compared to

says no.13
the burglar and the room in which the burglar intrudes is
compared to the womb which is invaded by the fetus. In this
analogy of ownership, the fetus is uninvited and the house
owner has every right to ask, or force, the fetus to leave.

Beckwith and Finnis both disagree. Beckwith feels that

"since there is no natural dependency between a burglar and a

52
homeowner, as there is between child and parent, Thomson’s
analogy is way off the mark. Burglars don’t belong in other
people’s homes, whereas preborn children belong in no other

"134

place except their mother’s womb. Here I point out this

emphasis on the natural dependency of the fetus on the mother

and.the constituent ethical obligation.which.it entails. ‘This

echos natural law; it is natural for the fetus to be in the

womb and therefore it is just.
Finnis warns that the burglar
too, has ’no right to be there’, even when she opens the
window! But beware of the equivocation! The burglar not
merely has no claim-right.to be allowed.to enter or stay;
he also has a strict duty not to enter or stay, i.e. he
has no Hohfeldian liberty135 -- and it is this that is
uppermost in our minds when we think that he ’has no
right to be there’: it is actually unjust for him to be
there.136

But the fetus is not identical to the burglar because whereas

the burglar does not have a right to be there, it does not

follow that the fetus does not have a right to be there.
Recognizing potential difficulties, Thomson modifies the

situation somewhat.
Suppose it were like this: people-seeds drift about in
the air like pollen, and if you open your windows, one
may drift in and take root in your carpet or upholstery.
You don’t want children, so you fix up your windows with
fine mesh screens, the very best you can buy. As can
happen, however, and on very rare occasions does happen,
one of the screens is defective; and.a seed.drifts in and
takes root. Does the person-plant who now develops have
a right to the use of your house?137

Thomson again implies that the property owner has a right to

defend herself from an unwanted intruder. But here she seems

to be asking whether or not a woman can get rid of the person-

53

plant if she does not want it. That is, if the undesired seed
drifts in to the house and begins to grow, is the woman
obligated to allow the seed to grow? Does it matter if this
growth is an inconvenience or a potentially embarrassing
situation which might result in familial estrangement?
Thomson seems to suggest that the woman can make such choices
to abort because she is the owner of her body.

Finnis, in his disagreement, suggests that "our whole
view of the violinist’s situation is coloured by this
burglarious and persisting wrongfulness of his presence

"”8 Does this relate to the unborn

plugged into his victim.
child?
True, the child has no claim-right to be allowed to come
into being within the mother. But it was not in breach
of any duty in coming into being nor in remaining present
within the mother;... I fail to see why the unborn child
should not with justice say of the body around it: ’That
is my house. No one granted me property rights in it,
but equally no one granted my mother any property rights
in it.’ The fact is that both persons share in use of
this body, both by the same sort of title, viz., that
this is the way they happened to come into being.139
Thus, Finnis seems to suggest that the woman has no special
right which allows her to make choices that would affect the
fetus, for both have equal rights to the house. Both the
woman and the fetus are using the space since "this is the way
they happened to come into being." The woman does not own her
body.
What was rejected in Sanchez’s argument was the idea of

the woman as the property owner. It is on that score that

Finnis echos his Catholic forbearers, not on the grounds of

 

54
honor. The issue of honor is also not pivotal in Thomson’s
discussion, although her restatement of values likened to the
earlier Jewish casuists, such as Bachrach and Emden, who would
allOW' abortion in cases where there was a physical or
psychological threat to the woman, such as in the needs to
maintain honor. Thomson takes one step the Jewish casuists do
not. She allows for this defense of maintenance of honor on
the grounds that the woman is owner of her body and thus

primary determiner of what poses a threat.

55

CHAPTER 3

Contributions of Historical Casuistry to Contemporary

Casuistry

Abortion

 

Having dealt with both historical and contemporary
casuistries of abortion, a brief summary of how these
casuistries reflect the values of'a group or individual is
appropriate. The early Jewish argument around abortion
focuses on the status of the fetus. From this, it begins to
define when an abortion can be performed. The fetus gains
higher status with the "emergence of the greater part;“ Jews
assign the fetus less moral value than the woman carrying the
fetus. The status of the woman being higher than that of the
fetus allows the woman to abort a threatening fetus when her
life is in danger. This threat to the woman can be either
physical or' psychological, but must occur' prior to the
"emergence of the greater part."

In contrast to this, the Roman Catholic position views
the fetus as being ensouled at the time of conception. Along
with this is the importance of natural laW“which suggests that
the natural course of events should not be altered. Given
that the development of a fetus is a natural event, only when
the fetus is a direct physical harm can it be aborted. Even

then, however, the abortion should.not be the direct result of

56
an action, but rather an indirect outcome.

Having recapped the Jewish and Catholic positions, we
find that the debate of Thomson and Finnis mirrors some of
these earlier discussions. For example, where Thomson and Li
deny the fetus personhood, they do saiwith.an argument similar
to that of the Jews which said that there is a noticeable
difference between the fetus and.the‘woman.carrying the fetus.
Finnis and Cooney counter saying that one cannot create a line
that demarcates between fetus and a person, thus it is better
to follow the safest path.which says that the fetus has a soul
at birth. This, of course, is reminiscent of natural law
rationale and historical Catholic discussions. With regard to
the violinist, Finnis contends that for the taking of the life
to be justified, it must indirect. Thomson, on the other
hand, says that the woman has the right to defend.herself from
the violinist and the fetus because neither has a right to the
use of her body.

This marks a point of departure for the historical and
contemporary casuists. For the historical casuists, there was
the requirement that abortion was justified.only'when.the life
of the woman was in danger. The contemporary casuists
utilized the idea of ownership which would give the woman the
power to decide for' herself whether' or' not to have an
abortion. This ability of the woman to determine the destiny
of her own body was something the historical casuists did not

grant. The evolution of this idea that one’s body is one’s

57

property and thus one’s to do with what one chooses,
potentially has something to do with the idea that as one
views the self as property owner, non-vital interests become
increasingly important. Before the view of ownership, the
historical casuists had the idea that the woman had her body
"on loan." Where the historical casuists required the motive
to be self-defense, contemporary casuists opened the doors to
choice.

Expanding upon this, we find yet another difference
between the historical and contemporary casuists: the
historical casuists never seemed to employ a paradigm that
acknowledged that anyone other than the infant might be
innocent. Thus, a significant disanalogy between the
historical and contemporary casuists has to do with the
innocence of the fetus. For the historical casuists,
innocence was gained through self-defense and the DDE. For
contemporary casuists such as English, the innocence of the
aggressor seems irrelevant to the argument of whether a woman
can have an abortion.

Yet another disanalogy between historical and
contemporary casuists seems to be, for whatever it is worth,
the ease with which contemporary casuists use bizarre and
imaginative analogies and counter-analogies; I have yet to
find any historical analogies that talk about person-plants,
violinist, or acorn-worshipping Druids. The significance of

this may be reflective of a greater ability to deviate from

58
concrete examples and.address issues that are more obscure and
hypothetical. This is not to suggest that the examples of the
contemporary casuists are less directly valuable than the
examples of the historical casuists, but that the
applicability of the contemporary casuists is derived more
indirectly than the examples of the historical casuists. For
example, when a historical casuist discusses ensoulment, it is
done with direct language; contemporary casuists might use the
analogy of the acorn-worshipping Druid to make their point

about ensoulment.

General

Although the similarities between the historical
casuistry and contemporary casuistry of abortion are evident,
the point is not to say that Thomson is secretly a Jew or that
Finnis is a closet Catholic, both arguing for their points
while wearing secular clothing. Rather, the point is that
contemporary casuistry does not seem to be as independent of
its historical past as many may like to believe. Thus, the
generalization that we can draw from our casuistical
discussion of abortion is: whether or not the contemporaries
are conscious of the similarities they have with past casuists
(religious casuists in particular), such similarities exist.
In understanding the origin of values and points of
divergence, we must look at these lines of values (e.g.

Jewi-sh-Thomson, Catholic—Finnis) and realize that the profound

59
impact history has had on contemporary thought may be more
prevalent than frequently acknowledged.

Despite the similarities, the differences between the
historical and contemporary casuistry are at least as
compelling (and maybe even more so.) From the differences, we
find that the limits of the paradigms are drawn by the larger
culture in which the paradigms are entertained and include
nonmoral beliefs about human nature. Casuistry may well be
limited.by the nature of the culture in which it is practiced"

This returns us then to the earlier stated question
inquiring about how value-laden casuistry is in ways that
contemporaries want to disavow? To what extent is casuistry
constructed independent of principles with different starting
premises? Contemporary casuists want to suggest that
casuistry can be "light" or free of principles. From the
material presented above, it appears that certain rulings of
casuistry, over time, are treated as principles that justify
the moral resolution. For example, what was initially a
Catholic casuistical discussion about the status of the fetus
(ensouled at conception) became a principle that justified why
one should. not have an. abortion. In the contemporary
dialogue, we see the «discussion. of ihaving’ a "right" to
abortion based on what has become a principle of individual
ownership and accountability.

Although contemporary casuists may want to refute

this,“° it seems that they cannot ignore the way in which

60
principles infiltrate and become entrenched in the framework
of moral reasoning. It is true that the starting premises
influence what becomes heralded as the dominant casuistical
opinion, but these premises do not create a principle-free
casuistry. Rather, they create a casuistry with principles of
differing moral emphasis depending on the group doing the

casuistry.

6 1
NOTES

1.The roots of casuistry are found in the "ideas of Greek
philosophy, the judicial practices of Roman Law, and the
traditions of rabbinical debate that developed within
Judaism." Jonsen, Albert R., and Stephen Toulmin. The Abuse
of Casuistry: A History of Moral Reasoning. Berkeley: Univ.
of California Press, 1988. p. 47.

Casuistry, as understood today, is believed to have
originated around the tenth century in confessionals in
Ireland. Casuistry was actively maintained in Islam (see
Jonsen, Albert R., and Stephen Toulmin, The Abuse of
Casuistry: A History of Moral Reasoning, 366-367) and
Judaism and developed in Protestantism, but it flourished
within the Roman Catholic Church. It was the application of
casuistry by the Catholics which was brought into question
and eventually led to its decline.

Although Jansen and Toulmin do mention Protestant and
Jewish casuists, they do not attempt to distinguish between
religious traditions which might be a direct result of
foundational value differences between these religions;
differences which potentially account for different yet
predictable outcomes for a particular case. Through an
analysis of historical paradigms on the abortion debate, I
will argue that the value-laden nature of casuistry
characterizes the value choices of the casuist in a way that
is a contemporary reflection of the past.

2.Such as Jonsen, Albert R., and Stephen Toulmin, The Abuse
of Casuistry: A History of Moral Reasoning; Jonsen, Albert
R. "Casuistry as Methodology in Clinical Ethics."
Theoretical Medicine 12(1991): 295-307; or Arras, John D.
"Getting Down to the Cases: The Revival of Casuistry in
Bioethics." Journal of Medicine and Philosophy 16(1991): 29-
51.

3.Jonsen, Albert R., and Stephen Toulmin, The Abuse of
Casuistry: A History of Moral Reasoning, 11.

4.Jonsen, Albert R., and Stephen Toulmin, The Abuse of
Casuistry: A History of Moral Reasoning.

5.Tomlinson, Tom. "Casuistry in Medical Ethics:
Rehabilitated, or Repeat Offender?” Theoretical Medicine
15(1994): 5-20.

6.Tom1inson, Tom, "Casuistry in Medical Ethics:
Rehabilitated, or Repeat Offender?", Theoretical Medicine 6-
7.

62

7.See Beauchamp, Tom L. and James F. Childress. Principles
of Biomedical Ethics. 3d ed. New York: Oxford University
Press, 1989.

8.In the section on "The Principle of Nonmaleficence," in
Principles of Biomedical Ethics, 143—145, Beauchamp and
Childress discuss the example of mercy killing in the case
of "It’s Over, Debbie." Journal of the American Medical
Association. 259(1988): 272. Contrast this with Jonsen’s
discussion of the case in Jonsen, Albert R. "Casuistry as
Methodology in Clinical Ethics." Theoretical Medicine
12(1991): 295-307.

 

9.Tomlinson, Tom, "Casuistry in Medical Ethics:
Rehabilitated, or Repeat Offender?", Theoretical Medicine 7.

10.Casuistry never completely disappeared; rather, it went
into hibernation. With its growing unpopularity, casuistry
disappeared from public discussion but continued to be used
as a pedagogical tool in Catholic seminaries. In 1975,
Jansen and Toulmin began collaborating on the National
Commission for the Protection of Human Subjects of
Biomedical and Behavioral Research, a project which resulted
in the 1988 publication, The Abuse of Casuistry: A History
of Moral Reasoning.

11.Although Protestantism will not be a focal point of this
essay, Protestants did eventually develop their own
casuistry, adopting many of the same nuances of Catholic
casuistry. This was done in response to a perceived moral
void that was created after the initial discarding of
casuistry from the moral deck.

12.Pascal, Blaise. The Provincial Letters. Translated by
A.J. Krailsheimer. London: Penguin Group, 1967. Published
originally in 1657, The Provincial Letters was used as a
weapon to bring into question the structural validity of the
Roman Catholic Church and its foundation of moral
resolutions. In these letters, Pascal assumes the pen of a
fictional naive Jesuit named Escobar. An analysis of the
claims made by Pascal and the soundness of these claims can
be found in Belloc, Hilaire. "An Analysis of the ’Lettres
Provinciales’" Studies: An Irish Quarterly Review of Letters
Philosophy & Science IX (Sept. 1920), 355-373. In this
analysis, Belloc suggests that of the 132 casuistical
citations used by Pascal (all of which were draw from Jesuit
sources), all but fourteen were exaggerative or fictive.

13.Laxism, in theory, allowed for the acceptance of almost
any action. Such broad moral acceptance was frowned upon by
many, such as Pascal, who petitioned for stricter guidelines
for right and wrong. The Jansenists, of which Pascal was

63

one, were almost Puritanical in nature and therefore were
not accepting of such moral laxism employed by Jesuits.

14.Moliere. "Tartuffe g; The Impostor" (1664) in The
Misanthrope and Other Plays. Translated by John Wood.
London: Penguin Group, 1959.

15.Moliere, "Tartuffe g; The Impostor," 151.
16.Moliere, "Tartuffe g; The Impostor," 163.

l7.Montesquieu. Persian Letters. (1721) Translated by C.J.
Betts, 121—122. London: Penguin Group, 1973.

18.Montesquieu, Persian Letters, 239. It is presumed that
this attack is mainly in response to Sanchez’s De matrimonio
(1673), which Montesquieu mentions later in Letter 143.

19.Myers, M.L. "Adam Smith as Critic of Ideas." Journal of
the History of Ideas 36(AP-JE 1975): 281—296. This quote,
from Myers 292, comes from Smith’s Theory of Moral
Sentiments pt.VII, sec.IV, 500.

20.Although we do not see condemnation of contemporary
casuistry to the extent that historical excerpts suggest,
this largely has something to do with the effectiveness of
these earlier anti-casuists. With casuistry being less well
known, we find those opposed to it within academic
literature, e.g. Degrazia, David. "Moving Forward in
Bioethical Theory: Theories, Cases and Specified
Principalism." Journal of Medicine and Philosophy 17(1992):
511-539.; Lustig, B. Andrew. "The Method of ’Principalism’:
A Critique of the Critique." Journal of Medicine and
Philosophy 17(1992): 487—510.; Beauchamp, Tom L. and James
F. Childress, Principles of Biomedical Ethics, 1989. The
opposition, for the most part, is less pointed than that of
historical critics.

21.Part of the reason that we see less of a reaction to
Jewish casuistry can be speculated to be due to: 1) the
larger acceptance and greater influence Christianity had on
Western Europe; and 2) the continued utilization of
casuistry in the Talmud and other sources of rabbinical
teaching.

22.Cantor, Norman. The Civilization of the Middle Ages. New
York: Harper Collins, 1993. p487.

23.Gay, Peter and R.K. Webb. Modern Europe to 1815. v.1 New
York: Harper & Row Publishers, 1973. p.123.

For a good overview of the reformation, see Gay and Webb
123-161.

 

64

24.See Wood, Thomas. English Casuistical Divinity During the
Seventeenth Century: With Special Reference to Jeremy
Taylor. London: SPCK, 1952.

25.The six steps referred to by Jonsen and Toulmin are:

Step 1 —- Paradigm and analogy: Paradigm cases are the
extreme cases in which one would be absurd not to consider
such an act an offense. These paradigms allow us to
analogously understand and work with broader classifications
(e.g. the Ten Commandments.)

Step 2 -- Maxims: Those unquestioned moral principles
within a case that are seldom further proved or explicitly
demonstrated. For example, "one good turn deserves another"
is a maxim most accept without further investigation. Most
of these are derived from natural law.

Step 3 -- Circumstances: Cases are constructed from the
paradigms by adding complicating circumstances in order to
understand what qualifies as a greater or lesser harm.

Step 4 -- Probability: The probability was the degree
to which the given action was either probably right or
probably wrong. This is to allow an individual to decide
how great of a moral risk he or she is willing to take for a
particular action.

Step 5 -— Cumulative Arguments: The strength of the
resolution comes from the number of arguments that it has to
support it.

Step 6 -- Resolution: The permissibility or moral
licitness of the act is decided upon.

Jonsen, Albert R., and Stephen Toulmin, The Abuse of
Casuistry: A History of Moral Reasoning, 251-257.

 

26.Jonsen, Albert R. "Casuistry as Methodology in Clinical
Ethics." Theoretical Medicine 12(1991): 295-307. Citations
from 295.

27.Wildes, Kevin Wm. "The Priesthood of Bioethics and the
Return of Casuistry." Journal of Medicine and Philosophy
18(1993): 33-49. Wildes argues that the secular casuistry
put forth by Jonsen and Toulmin is really a casuistry that
assumes the values of a Roman Catholic; without this
assumption, the casuistry of Jansen and Toulmin is
inappropriate. Although Wildes makes a good point, I
believe that he overlooks the influence that these "non-
secular" values, e.g. Roman Catholic, have had on putting
forth secular arguments -- casuistry or not.

Most recently, James M. Tallmon, in his "How Jonsen
Really Views Casuistry: A Note on the Abuse of Father
Wildes." Journal of Medicine and Philosophy 19(1994): 103-
113, challenged Wildes critique of Jansen and Toulmin’s
casuistry. Wildes responds to Tallmon in "Respondeo: Method
and Content in Casuistry.” Journal of Medicine and
Philosophy 19(1994): 115-119.

65

28.The method of casuistical analysis presented by John D.
Arras is even more vague than that presented by Jansen and
Toulmin. Arras views casuistry as useful insofar as it is a
"theory modest" rather than a "theory free" form of moral
reasoning. He allows ethical theory to maintain a larger
role in casuistical analysis than the Jansen and Toulmin
model seems to provide. Yet, like Jansen and Toulmin, he
believes in the importance of casuistry as a pedagogical
tool. [Arras, John D. "Getting Down to the Cases: The
Revival of Casuistry in Bioethics." Journal of Medicine and
Philosophy 16(1991): 29-51.]

Baruch Brody, on the other hand, offers a model of
casuistry that relies heavily on the intuitions we form
about particular cases rather than the epistemological
commitments Jansen and Toulmin hold for paradigms and
analogies. The resolutions reached by Brody’s model
attempts to take into account the pluralistic nature of our
moral world. Its weakness is found in the initial plurality
because the more varied the moral view points, the more
difficult for Brody’s model to function. [Wildes, Kevin Wm.,
"The Priesthood of Bioethics and the Return of Casuistry."
Wildes discussion of Brody is found most succinctly on 46.]
Thus, his model also seems to fall short of a flawless
casuistry.

29.Jonsen, Albert R., and Stephen Toulmin, The Abuse of
Casuistry: A History of Moral Reasoning, 257.

30.With the 1962 publication of The Structure of Scientific
Revolutions, "paradigm" entered mainstream scholarly
discourse.* Although the Kuhnian discussion of scientific
paradigms is helpful in understanding the basic concept of
paradigms, my concern is not with scientific paradigms but
rather with moral paradigms. A moral paradigm differs from
a scientific paradigm in that the former is concerned with
issues of morality whereas the latter applies primarily to
scientific frameworks that are universally recognized as
"model problems and solutions."i ‘

One reference which to sheds light on the intricacies
of moral paradigms has been presented by Edmund Pincoffs.¢
Although Pincoffs does not mention moral "paradigms" as
such, he does discuss moral "truisms", which appear to serve
the same purpose for him that paradigms serve for Kuhn. A
moral "truism" is something that is viewed as impossible or
morally absurd to deny.§

 

*The seminal work by Kuhn which initiated the
discussion of paradigms, and to which I refer, is: Kuhn,
Thomas S. The Structure of Scientific Revolutions. 2d ed.
Chicago: Univ. of Chicago Press, 1970. To counter the
heated discussion regarding the meaning of the term paradigm
that followed publication, Kuhn responded with: Kuhn, Thomas

 

66

S. 1977. "Second Thoughts on Paradigms." The Essential
Tension: Selected Studies in Scientific Tradition and
Change, 293-319. Chicago: Univ. of Chicago Press. (First
published in The Structure of Scientific Theories, ed.
Frederick Suppe, 459-482. Urbana: Univ. of Illinois Press,
1974.)

TKuhn, The Structure of Scientific Revolutions, viii.
tPincoffs, Edmund L. "Justificatory Powers of the
Standard Theories." Quandaries and Virtues, 53-70. Lawrence,

KS: Univ. of Kansas Press, 1986.

§Pincoffs, Quandaries and Virtues, 54. Regarding moral
language, "it is so framed as to leave room for
clarification or transcendence by the presentation of one
truism as the prism through which we can see others. We
can, by altering prisms, get new perspectives on the common
life" (69). This opens the door to individual value-laden
moral analysis by allowing the way in which the paradigm is
framed to determine the way in which it is viewed. Some
examples mentioned by Pincoffs include ideas of what is
"cruel, unjust, dishonest, selfish, or vindictive... [i.e.]
no one whose opinion we respect seriously denies that
cruelty is wrong" (54).

31.I owe the basic premise of this analogy to Tom Tomlinson.

32.It was decided that in theory, this may be so, but in
practice this should not be allowed. In particular, note
the case of the insulted gentleman, Jonsen, Albert R., and
Stephen Toulmin, The Abuse of Casuistry: A History of Moral
Reasoning, 216-227, where it is hypothetically suggested
that it would be acceptable to kill someone for insulting
one’s honor. Insults punishable by death went so far as to
include the slapping of a gentleman. Although this example
holds little moral weight as a contemporary example of
justifiable homicide, it does help to explain the way
paradigms have been used historically.

33.1 thank Bill Lovis for drawing my attention to this
point.

34.As many may be interested in how my personal views on
abortion might influence an even-handed presentation of the
abortion debate, I reveal that my views lie somewhere around
the middle of the continuum. If we wish for either the
extensive debate to diminish or for the "problem" of
abortion to decrease in attention, we need to focus not on
whether abortion is "right" or ”wrong," but on how we can
educate and influence social change to bring about decreased
desire or need for the availability of the option of
abortion. I do not believe that either extreme -- "pro-
choice" or "pro—life” -- holds a monopoly on the morality of
abortion.

67

35.Using abortion as a heuristic tool to demonstrate
casuistical differences, it should be noted that the
practice of abortion was a familiar art in the lands
surrounding the Mediterranean Sea, the site of origin for
Judaism and Christianity.* In looking for guidance
regarding the morality of abortion, Jews have looked to the
Torah, the Talmud, and other responsa writing; Catholic
thought has looked at the Bible and a series of highly
developed manuals and commentaries of moral theology;i
Protestant casuistry has focused primarily on Biblical text
deliberately ignoring many of the commentaries developed by
their Catholic counterparts.t

The discussions of abortion in this early Greco-Roman
environment ranged from Plato and Aristotle’s View of
abortion as a means of "preventing excess population" to
Soranos of Ephesus' (a gynecologist c. A.D. 98-138)
discussion of methods and reasons for abortions.§ Philo, in
his commentary The Special Laws, condemns both accidental
and intentional abortions, likening them to ”infanticide and
the abandonment of children."¥

In the same vein as Philo’s prohibition of abortion,
three texts of the early Christian community reinforce this
prohibition. The Didache, or Teaching of the Twelve
Apostles, states:

Do not murder; do not commit adultery;... do not

fornicate;... do not kill a fetus by abortion, or

commit infanticide.**
A later commentary, The Epistle of Barnabas, structured the
commandment on abortion as such:

Do not waiver in your decision.... Love your neighbor

more than yourself. Do not kill a fetus by abortion,

or commit infanticide. Do not withdraw your hand from

your son or your daughter; but from their youth teach

them the fear of God.TT
And yet another piece of literature, The Apocalypse of
Peter, saw a "pit of torment for sinners, among them women
’who have caused their children to be born untimely and have
corrupted the work of God who created them.'"tt

The list of Catholic Church teachings against abortion
continued from Clement of Alexandria§§ to Minucius Felix¥¥
to Tertullian*i to Jerome and Augustine*t and Aquinas.*§

 

*Noonan, John T. Jr. "An Almost Absolute Value in
History" from John T. Noonan, Jr. The Morality of Abortion:
ngal and Historical Perspectives Cambridge, MA: Harvard
University Press, 1970. (Noonan 3).

iThe Catholic Church has known two lines of thought: 1.
the papacy which has prohibited abortion, and 2. the
theological casuists (17/18th C. in particular) that allowed
some abortions. Both groups argued from the Bible as a
starting point and developed extensive commentaries and
manuals of moral theology.

 

68

tInitially, Protestants wanted to discard everything to
do with Catholicism, including casuistry. After a perceived
moral void, the English Protestants (i.e. Anglicans and
Puritans) adapted casuistry to serve their needs. This
adapted Protestant casuistry referred back to the Bible and
ignored, in most instances, Catholic commentaries (with the
exception of an occasional reference that suggested how the
Catholics were wrong).

§Noonan, John T. Jr., "An Almost Absolute Value in
History," 4.
¥Noonan, John T. Jr., "An Almost Absolute Value in
History," 6. r

**The Didache, or Teaching of the Twelve Apostles. 2.2
Ancient Christian Writers, vol.6. Mahwah, NJ: Paulist Press,
1948.

iiThe Epistle of Barnabas 19.5. In The Didache. Ancient
Christian Writers, vol.6. Mahwah, NJ: Paulist Press, 1948.

##Noonan, John T. Jr., "An Almost Absolute Value in
History," 10.

§§Clement (c.150-215) forbade Christians from hiding s
their fornication by commanding them not to "take away human
nature, which is generated from the province of God, by
hastening abortions and applying abortifacient drugs
[phthoriois pharmakois] to destroy utterly the embryo and,
with it, the love of man." Noonan, John T. Jr., "An Almost
Absolute Value in History," 11.

¥¥Minucius Felix (c.190-200) extends the legal term
"parricide" to include abortions; seen as a crime of pagan
conduct. Noonan, John T. Jr., "An Almost Absolute Value in
History," 12.

*iTertullian (c.155—220) focuses his discussion on the
question of ensoulment. He argues that something must first
be alive before one can kill it. Drawing from the general
commandment -- "You shall not kill" -- destroying what is
in the womb is a "crime" (scelus.) Noonan, John T. Jr., "An
Almost Absolute Value in History," 12-13.

**“Both Jerome and Augustine affirmed that, in fact,
man did not know when the rational soul was given by God."

Noonan, John T. Jr., "An Almost Absolute Value in History,"
15. The references provided by Noonan for such positions
are: Augustine, De Origine Animae 4.4; Jerome, 9g
Ecclesiastes 2.5. Jerome and Augustine were contemporaries,
c.347-420 and c.354-430 respectively.

*§Aquinas in speaking of the sinful nature of using
drugs to bring abortion, saw such usage as being ”against
'nature because even the beasts look for offspring." Noonan,

John T. Jr., "An Almost Absolute Value in History," 23.

 

36.Ensoulment is the time at which the embryo or fetus is
infused with a soul.

69

37.To avoid confusion or ahistorical usage of terminology, I
will reserve the term "personhood" for the contemporary
discussion. Although I believe that Jews used an idea of
"personhood" which meant "having person—like features," e.g.
hands, toes, head, the contemporary useage of personhood
carries a more detailed meaning and greater moral weight.

38.Throughout the majority of this thesis, I will be using
the term fetus in a general sense to mean anything pre-
parturition. I recognize that the term is actually a
technical one that describes the period from the ninth week
of pregnancy to end of term. I will make this distinction
when necessary to delineate the difference between Jewish
and Catholic views of development.

39.According to Jakobovits, the crux of the difference
between Judaism and Christianity stems historically from the
misinterpretation/translation of the above passage. See
Jakobovits, Immanuel. "Jewish Views on Abortion." In Jewish
Bioethics, edited by Fred Rosner and J. David Bleich, 118-
133. New York: Hebrew Publishing Co., 1979, 1983. Reprinted
from Abortion and the Law, ed. by D.T. Smith. Western
Reserve University Press, 1967. (Jakobovits 1967, 120)

40.Tractate Arachin 7a.

41.Rosner, Fred, "The Jewish Attitude Towards Abortion,"
259.

42.Sanhedrin 87. Rosner, Fred, "The Jewish Attitude Towards
Abortion," 261.

43.By weak surface logic, I mean the passages used to
explain a problem appear non-sequitur until a better
understanding of the background is provided. I do not want
to suggest that the logic is weak, only that it may appear
to be weak on the surface.

44.Rosner, Fred. "The Jewish Attitude Towards Abortion" In
Contemporary Jewish Ethics, ed. by Menachem Marc Kellner,
(1968): 257-269. Reprinted from Tradition 10(2). (Rosner,
261.)

45.Sanhedrin 72b. Klein, Isaac. 1970. "Abortion and Jewish
Tradition" (Klein 271) In Contemporary Jewish Ethics, ed. by
Menachem Marc Kellner, 270-278. New York: Sanhedrin Press.
Reprinted from Conservative Judaism, 24(3). The Mishnah is
that body of literature that serves as a supplement to the
Torah, arising after the Exile. The Talmud is a scholarly
commentary on the Mishnah.
”While the Mishnah requires extension of the greater

part of the child, the Tosefta speaks about the extension of

70

the head." The Tosefta is a contemporary Rabbinical work.
For a slight variation of Oholot 7:6, see Tosefta Yebamot
9:9. Klein, 271.

46.Credit for this imaginative description should be given
to Tom Tomlinson, who has obviously spent too much time
watching movies.

47.Moore, Keith L. The Developing Human: Clinically Oriented
Embryology 3rd ed. Philadelphia: W.B. Saunders Co., 1993.

48.Klein, Isaac, "Abortion and Jewish Tradition," 271.

"Many Talmudic sources [Mishnah Niddah 3:5; Tractates
Sanhedrin 72b; Niddah 29a; Tosefta Yevamot 9:9] and
commentators on the Talmud ["Commentaries of Bartinoro
(Rabbi Obadiah ben Abraham of Bertinoro, Italy, 15th
Century); Rosh (Asher ben Yechiel, 1250-1327) and Rishon
Letzion (Rabbi Isaiah Berlin of Breslau) on the Mishnah in
Oholoth 7:2; and the commentaries of Rashi on Tractate
Sanhedrin 72b and Tosefot on Tractate Sanhedrin 59a."
(Rosner, "The Jewish Attitude Towards Abortion", 268.)]
substitute the word "head" for "greater part" in the above
Mishnah." Despite this, both Maimonides and Karo agree that
the extrusion and retraction of a limb is enough to consist
of birth. (Rosner, 260.) '

49.Klein, Isaac, "Abortion and Jewish Tradition," 274.
50.Klein, Isaac, "Abortion and Jewish Tradition," 274.

51."After the baby’s head has emerged, however, the fetus
attains the status of a nefesh..., and the ’weak’ argument
of pursuit no longer justifies killing the child even if the
mother’s life is threatened since it is a case of Heavenly
pursuit." Rosner, "The Jewish Attitude Towards Abortion",
262.

52.Noonan, John T. Jr., "An Almost Absolute Value in
History," 35.

53.Noonan, John T. Jr., "An Almost Absolute Value in
History," 35.

54.Noonan, John T. Jr., "An Almost Absolute Value in
History," 36.

55.Noonan, John T. Jr., "An Almost Absolute Value in
History," 36.

56.Noonan, John T. Jr., "An Almost Absolute Value in
History," 38.

 

71

57.The Doctrine of Natural Law is quite complex and the
literature describing it is very extensive. Of the numerous
overview articles that I read, I found D’Arcy, Eric.
"Natural Law." Engyclopedia of Bioethics v.3. Warren T.
Reich, ed. New York: Free Press, 1978. p.1131-1137, to be
most helpful.

58.Rosner, "The Jewish Attitude Towards Abortion", 262.

59.Although this makes it more difficult to understand, I
should note that some Jewish authorities do not even grant
the fetus the rights of a viable child until after the first
month of life. "The newborn child is not considered fully
viable until it has survived thirty days following birth as
it is stated in the Talmud [Tractate Shabbat 135b]: ’Rabban
Simeon ben Gamliel said: Any human being who lives thirty
days is not a nephel (abortus) because it is stated (Num
18:16): ’And those that are to be redeemed of them from a
month old shalt thou redeem,’ since prior to 30 days it is
not certain that he will survive." Rosner, "The Jewish
Attitude Towards Abortion", 260.

60.Klein, Isaac, "Abortion and Jewish Tradition," 276.

61."Denunciations of the practice of abortion are recorded
in the medical oaths and prayers of Asaf Judaeus in the
seventh century, Amatus Lusitanus in the sixteenth century
and Jacob Zahalon in the seventeenth century." Rosner, "The
Jewish Attitude Towards Abortion", 260.

This does not open the door for the acceptance of all
abortions, for "all the authorities of Jewish law are agreed
that physical or mental abnormalities do not in themselves
compromise the title to life, whether before or after
birth." Jakobovits, Immanuel, "Jewish Views on Abortion,"
123.

62.Maimonides, Laws of the Murderer 1:9; In Klein, Isaac,
"Abortion and Jewish Tradition,V 272.

63.Jakobovits, Immanuel, "Jewish Views on Abortion," 121.
64.Klein, Isaac, "Abortion and Jewish Tradition," 276.

65."This view is almost completely reverse of the attitude
of the Catholic Church which never tolerates the operation
if directed at the child as the cause of the danger (’direct
abortion’), though the treatment of a pregnant mother
leading to her fruit’s abortion may be sanctioned if the
condition to be treated resulted from an illness (’indirect
abortion’.)" Jakobovits, Immanuel, Jewish Medical Ethics,
170-191. New York: Philosophical Library, 1959. Above
citation, 186-187 (endnote 171.)

72

66.Commentary of Rabbi Israel Lipschutz (1782-1860) on the
Mishnah Oholot 7:6.

67.Rosner, "The Jewish Attitude Towards Abortion", 262.
68.Klein, Isaac, "Abortion and Jewish Tradition," 274.
69.Klein, Isaac, "Abortion and Jewish Tradition," 275.

70.For a more complete discussion of DDE, see Boyle, Joseph.
"Who is Entitled to Double Effect?" Journal of Medicine and
Philosophy 16(1991): 475-494; and Marquis, Donald B. "Four
Versions of Double Effect." Journal of Medicine and
Philosophy 16(1991): 515-544.

71.Noonan, John T. Jr., "An Almost Absolute Value in
History," 28.

72.Noonan, John T. Jr., "An Almost Absolute Value in
History," 28.

73.For Lessius, since most moralists believed contraception
to be wrong because it was "against the nature of
generation", it seemed to follow that abortion would be even
more wrong. Noonan, John T. Jr., "An Almost Absolute Value
in History," 30.

74.Noonan, John T. Jr., "An Almost Absolute Value in
History," 30.

75.Noonan, John T. Jr., "An Almost Absolute Value in
History," 30. What matters is dominant purpose; this
continues the self-defense analogy by focusing on the
character rather than the actions.

76.Noonan, John T. Jr., "An Almost Absolute Value in
History," 28. Noonan gives the reference as Sanchez, Qg
Sancto Matrimonii Sacramento at 9.20.8, 9, 11-12.

77.Noonan, John T. Jr., "An Almost Absolute Value in
History," 29.

78.Sanchez did not wish to allow a blanket of acceptance for
abortion, for he felt that it was "intrinsically evil to
procure the death of the innocent or to expose oneself to
the risk of doing so." Noonan, John T. Jr., "An Almost
Absolute Value in History," 29.

79.Noonan, John T. Jr., "An Almost Absolute Value in
History," 30.

73

80.Noonan, John T. Jr., "An Almost Absolute Value in
History," 31.

81.Noonan, John T. Jr., "An Almost Absolute Value in
History,“ 31.

82.Noonan, John T. Jr., "An Almost Absolute Value in
History," 31.

83.The papacy did not necessarily agree with the casuists
who questioned the absolute prohibition of abortion. The
Decretals of Gregory IX were quite strong on their stand
against abortion. Despite Si aliquis having "been canon law
for over three hundred years, the Sacred Penitentiary by the
time of Gregory XIII did not treat as homicide the killing
of an embryo under 40 days." [Noonan, John T. Jr., "An
Almost Absolute Value in History," 32.]

Sixtus V saw that "abortion as an adjunct to
fornication intensified the evil. In the course of a
campaign largely aimed at prostitution in Rome, on October
29, 1588, he issued the bull Effraenatam" which penalized
those involved with an abortion which was viewed similar to
homicide. [Noonan, John T. Jr., 33.] On March 2, 1679,
Innocent XI issued a commandment which condemned 65
propositions. Two of these condemned propositions related
to abortion:

34. It is lawful to procure abortion before ensoulment

of the fetus lest a girl, detected as pregnant, be

killed or defamed.

35. It seems probable that the fetus (as long as it is

in the uterus) lacks a rational soul and begins first

to have one when it is born; and consequently it must

be said that no abortion is homicide.
"The 65 propositions were globally designated by the Holy
Office as 'at least scandalous and in practice
dangerous.’... What were rejected was Sanchez’ opinion that
the danger of death from relatives was ground for abortion.
and the opinion of ’the prince of laxists,’ Juan Caramuel y
Lobkowicz, on the time of ensoulment." [Noonan, John T.
Jr., 34.] With the absence of the exceptions to patristic
prohibition argued by the casuists, "the next two centuries
[1750-1965, saw] the teaching of the Church develop to an

almost absolute prohibition of abortion." [Noonan, John T.
Jr., 36.]
84.Noonan, John T. Jr., "An Almost Absolute Value in

History," 31.
85.Klein, Isaac, "Abortion and Jewish Tradition," 273-74.

86.Klein, Isaac, "Abortion and Jewish Tradition," 273-74.

74
87.Jakobovits, Immanuel, "Jewish Views on Abortion," 122.
88.Jakobovits, Immanuel, "Jewish Views on Abortion," 122.
89.Klein, Isaac, "Abortion and Jewish Tradition,” 277.

90.Noonan, John T. Jr., "An Almost Absolute Value in
History", 28.

91.Noonan, John T. Jr., "An Almost Absolute Value in
History", 28.

92.Noonan, John T. Jr., "An Almost Absolute Value in
History", 28-29.

93.Noonan, John T. Jr., "An Almost Absolute Value in
History," 28.

94.Thomson grants that drawing lines such as this are
difficult, but decides to go ahead and work from the
assumption that the fetus is a "human person well before
birth" rather than try to deal with the sticky issue of
ensoulment. Thomson, Judith Jarvis, "A Defense of
Abortion," 29.

95.Thomson does not discuss what for her constitutes the
essence of personhood. Jane English, in her "Abortion and
the Concept of a Person." Canadian Journal of Philosophy 5
(October 1975): 233-243, provides a good discussion on the
issue of the essence of personhood.

96.That is, whatever rights we may grant to an oak tree, we
do not grant the acorn until the acorn is considered an oak
tree.

97.Thomson, Judith Jarvis, "A Defense of Abortion," 29.

98.Finnis, John, "The Rights and Wrongs of Abortion: A Reply
to Judith Thomson," 151—152.

99.Finnis, John. "The Rights and Wrongs of Abortion: A Reply
to Judith Thomson." Philosophy and Public Affairs 2 (Winter
1973): 117-145. Reprinted in Dworkin, R.M., ed. Th;
Philosophy of Law, 129-152. Oxford Readings in Philosophy.
Oxford: Oxford University Press, 1977. Above citation comes
from reprinted edition, 151. It should be noted that the
fusion of two cells to form a new cell is also true of seeds
from sexual plant reproduction.

100.For Finnis’ view of natural law, see Finnis, John M.
"Natural Law and Unnatural Acts." Heythrop Journal 11(4)
October 1970: 365-387.

 

101.Cooney, William.

75

"The Fallacy of All Person-denying

Arguments for Abortion." Journal of Applied Philosophy 8(2)

October 1991: 161-165.

102.Li, Chenyang.

"The Fallacy of the Slippery Slope

Argument on Abortion." Journal of Applied Philosophy 9(2)

October 1992: 233-237.

103.Cooney, William,

Arguments for Abortion,"

104.Cooney, William,

Arguments for Abortion,"

105.Cooney, William,

Arguments for Abortion,"

162.

162.

162.

"The Fallacy of All Person-denying

"The Fallacy of All Person-denying

"The Fallacy of All Person-denying

106.The slippery slope which Li refers to is conceptually

the same as that mentioned earlier by Thomson.

person—denying people cannot draw a clear cut-off line
between an early person on the one hand and the non-person

fetus on the other,

they have to accept that personhood

"Since the

begins at the moment of conception and that the fetus is a

person all along.

personhood of the fetus."

Li, Chenyang,
Argument on Abortion,"

107.Li, Chenyang, "The
Argument on Abortion,"

108.Li, Chenyang, "The
Argument on Abortion,"

109.Li, Chenyang, "The
Argument on Abortion,"

110.Li, Chenyang, "The
Argument on Abortion,"

111.Thomson,
112.Thomson,
113.Thomson,

114.Thomson,

intent.

115.Thomson, Judith Jarvis,

Judith Jarvis,
Judith Jarvis,
Judith Jarvis,
Judith Jarvis,
Note a distinction between murder and killing.

unjustified killing often associated with an element of
Killing is merely the causing of death.

234.
Fallacy
235.
Fallacy
234.
Fallacy
235.
Fallacy
236.
"A
"A
"A
"A

of the
of the
of the
of the

Defense
Defense
Defense

Defense

"The Fallacy of the Slippery Slope

Slippery Slope

Slippery Slope

Slippery Slope

Slippery Slope

This is the slippery slope argument on

of Abortion," 30.
of Abortion," 30.
of Abortion," 30.
of Abortion," 32
Murder

"A Defense of Abortion,"

36

is an

76
116.Thomson, Judith Jarvis, "A Defense of Abortion," 36.

117.Beckwith, Francis J. "Personal Bodily Rights, Abortion,
and Unplugging the Violinist." International Philosophical
Quarterly 32 (March 1992): 105—118. Above citation, 113-
114, note 18.

118.Finnis, John, "The Rights and Wrongs of Abortion: A
Reply to Judith Thomson," 147.

119.Finnis, John, "The Rights and Wrongs of Abortion: A
Reply to Judith Thomson," 147-148.

120.Finnis, John, "The Rights and Wrongs of Abortion: A
Reply to Judith Thomson," 148.

121.Beckwith, Francis J, "Personal Bodily Rights, Abortion,
and Unplugging the Violinist," 114.

122.See Finnis, John, "The Rights and Wrongs of Abortion: A
Reply to Judith Thomson," 141 ff for what he refers to as
.the "traditional condemnation of abortion." Finnis does a
better job saying what this traditional casuistry of
abortion is not, rather than what it is. Furthermore, he
discusses this traditional position on abortion without
giving substantive examples and references to support his
claim.

123.Finnis completes the above thought by saying that: "Each
[of the factors] has been treated as relevant by the
traditional casuists whose condemnations Thomson was seeking
to contest when she plugged us into the violinist."

Finnis, John, "The Rights and Wrongs of Abortion: A
Reply to Judith Thomson," 150.

As noted in the previous endnote, Finnis does not
provide sufficient citations to support this claim.
Although I agree that historical casuistry dealt with many
of the similar issues, it is not clear to what casuists
Finnis is referring.

124.English, Jane, "Abortion and the Concept of a Person,"
86.

125.English, Jane, "Abortion and the Concept of a Person,"
87.

126.Thomson, Judith Jarvis, "A Defense of Abortion," 33.
127.Thomson, Judith Jarvis, "A Defense of Abortion," 33.

128.Thomson, Judith Jarvis, "A Defense of Abortion," 30.

77
129.Thomson, Judith Jarvis, "A Defense of Abortion," 30.
130.Thomson, Judith Jarvis, "A Defense of Abortion," 38.
131.Thomson, Judith Jarvis, "A Defense of Abortion," 35.
132.Thomson, Judith Jarvis, "A Defense of Abortion," 39.
133.Thomson, Judith Jarvis, "A Defense of Abortion," 38.

134.Beckwith, Francis J, "Personal Bodily Rights, Abortion,
and Unplugging the Violinist," 112, note 14.

135.Finnis refers to the assertion of a Hohfeldian right as
a "three-term relation between two persons and the action of
one of those persons in so far as that action concerns the
other person." [Finnis, John, "The Rights and Wrongs of
Abortion: A Reply to Judith Thomson," 131.] Hohfeldian
liberty is the just claim one has to one’s own body;
Hohfeldian claim—rights are rights that "other people shall
not (at least without one’s permission) do things to or with
one’s own body." [Finnis, John, 131.] A combination of
these two can result in Hohfeldian power (right to "change
another person’s right (liberty) to use one’s body by making
a grant of or permitting such use") and Hohfeldian immunity
(right "not to have one’s right (claim-right) to be free
from others’ use of one’s body diminished or affected by
purported grants or permissions by third parties"). A non—
Hohfeldian right is a "title" that one has to something,
e.g. chocolates or bodies. [Finnis, John, 132.]

136.Finnis, John, "The Rights and Wrongs of Abortion: A
Reply to Judith Thomson," 149.

137.Thomson, Judith Jarvis, "A Defense of Abortion," 38.

138.Finnis, John, "The Rights and Wrongs of Abortion: A
Reply to Judith Thomson," 149.

139.Finnis, John, "The Rights and Wrongs of Abortion: A
Reply to Judith Thomson," 149.

140.Although the contemporary casuists try to downplay the
influence of values, they are undeniably present, as they
were historically.

 

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