The Paternalistic Argument against

Abortion1
ITZEL MAYANS AND
VACA
MOISES

A dominant trend in the philosophical literature on abortion has been concerned with the
question of whether the fetus has moral status and how such a status might or might
not conflict with women’s liberties. However, a new and powerful trend against abortion
requires philosophical examination. We refer to this trend as the paternalistic argument
(PA). In a nutshell, this argument holds that, insofar as motherhood is a constitutive
end of women’s well-being, abortion harms women; thus, abortion is wrong and should
be prohibited, restricted, or avoided when possible regardless of the moral status of the
fetus. In this article we undertake three tasks. First, we analyze four variations of this
reasoning: what we call the Kantian PA, the Aristotelian PA, the Catholic Church PA,
and the Psychological PA. Second, we show how some public policies that regulate or
prohibit abortion around the world are now in fact following paternalistic justifications
and imposing distinctive paternalistic restrictions (hard, soft, or libertarian); we refer to
these policies as “the new abortion laws.” Finally, we argue that both the four paternal-
istic arguments presented and the new abortion laws are at times ill-intentioned, compre-
hensive in nature and thus unsuited for guiding public policy, empirically flawed, or else
unjustified.

A dominant trend in the philosophical literature on abortion has been concerned

with the question of whether the fetus has moral status and how such status
might or might not conflict with the exercise of women’s liberties. Schematically,
an encompassing argument against abortion within this discussion would take the
following form:
The fetus’s status argument (FSA): Abortion is wrong and should be pro-
hibited, restricted, or avoided when possible because the fetus has certain
properties and interests that confer on it the same or equal moral status to
that of a person.

Hypatia vol. X, no. X (XXX 2017) © by Hypatia, Inc.

2 Hypatia

Different FSAs highlight various properties or interests in order to grant fetuses this
moral status: for instance, having human genotype (Grisez 1970; George and Tollef-
sen 2008), initial brain activity (Morowitz and Terfil 1992; Burguess and Tawia
1996), intrinsic human capacities or functionings (DiSilvestro 2010), a fair chance to
defend their lives against possible threats (Davis 1984), an open future like ours
(Marquis 1989), and the potentiality to become a person (Donagan 1977; Wilkins
1993).
In turn, several rejoinders have been made against FSAs: for instance, that the
attribution of moral status should not depend on the instantiation of one or two
important human properties but on many (Warren 2000), that it is impossible to
prove that the fetus has an interest in its own continued existence (Tooley 1984),
that it is inaccurate to measure the value of an entity based on the kind of object
that it will become (Boonin 2003), that there is a logical error in arguing that fetuses
are subjects with rights in virtue of being potential persons (Feinberg 1984), and that
even if fetuses have some sort of moral status, women’s liberty trumps it when preg-
nancy is very costly or is the product of rape (Thomson 1971; Kamm 1992).
As we have said, FSAs have gained quite a lot of theoretical attention in the
philosophical literature. This article does not seek to expand on the analyses found
there. Instead, our goal is to present and reply to another and more recent argument
against abortion based on paternalistic premises.
In the literature on paternalism, it is usually said that an action or policy is pater-
nalistic if it represents an interference that, without previous consent, limits the
agent’s range of options on the grounds that this interference is in her best interest
(see Dworkin 1972; Feinberg 1986; Husak 2003; Sunstein and Thaler 2008; De
Marneffe 2006 for equivalent formulations). Schematically again, an encompassing
argument against abortion based on these paternalistic lines might take the following
form:
The paternalistic argument (PA): Abortion is wrong and should be
prohibited, restricted, or avoided when possible because, by impeding the
realization of motherhood, it harms women’s psychological health or their
well-being and real interests more generally.
Many versions of PA are present in the literature, in public discourse, and behind
new laws regulating or prohibiting abortion in democratic societies, thus it is impor-
tant to analyze it thoroughly as well as to highlight its possible weaknesses. Note that
part of PA’s novelty comes from the fact that its claim is independent of which side
is right in the debate on the fetus’s moral status. That is, if PA is correct, abortion is
still wrong regardless of whether the fetus has full moral personality (or moral status
on other grounds).
In the following sections we undertake three tasks. First, we present four different
and paradigmatic PAs: what we call the Kantian PA, the Aristotelian PA, the
Catholic Church PA, and the Psychological PA. These four arguments agree on the
idea that women harm themselves when they choose to have an abortion and refrain
from being mothers, but they differ on the nature of such harm.
 Itzel Mayans, Mois
es Vaca 3

Second, we show how some public policies that regulate abortion around the
world (including in Germany, the Netherlands, Belgium, Spain, the Czech Republic,
Russia, Slovakia, Macedonia, and jurisdictions in the United States) are now in fact
following paternalistic justifications and imposing distinctive paternalistic restrictions:
hard, soft, or libertarian. We call these “the new abortion laws.” These laws are
highly influenced by the Psychological PA, and they usually subscribe (explicitly or
implicitly) to the claim that women who abort invariably find themselves in a bad
deliberative position, whether due to manipulation, moral confusion, economic stress,
or social pressure. As we will see, according to the justification for these laws, it is
never the case that a woman who seriously considers aborting is prepared to make
that decision on her own.
Finally, we argue that both the four PAs and the new abortion laws suffer from
four insurmountable problems. First, and despite their rhetoric, it is not clear that
many PA proponents are genuinely concerned about protecting women’s mother-
hood. Second, the very idea that motherhood is constitutive of women’s well-being is
comprehensive in nature and thus unsuited for guiding public policy. Third, there is
no solid empirical evidence showing that women who deprive themselves of such an
end do in fact harm their psychology.2 Finally, even if women were harming them-
selves in such a way, it is not clear that this harm would justify coercive state inter-
vention in order to prevent it.
We do not deny that motherhood is certainly central to many women’s lives. In
this sense, perhaps the most important lesson of this work is that public efforts should
concentrate exclusively on helping women to successfully achieve such a goal only
once it has been voluntarily adopted.3

I. FOUR PATERNALISTIC ARGUMENTS

All PAs hold that abortion hinders a putative constitutive end of women’s well-being
—that is, motherhood—from being realized. But they differ in their explanation of
why leaving this end unfulfilled is harmful to women. In this section we will present
four different paradigmatic examples. We call them, respectively, the Kantian PA,
the Aristotelian PA, the Catholic Church PA, and the Psychological PA.
Let’s start with the Kantian PA as put forward by Lara Denis. In early sections of
her article, Denis rejects the possibility of a Kantian-inspired FSA, since fetuses
should not be viewed as free and rational beings, or as ends in themselves (see Denis
2008, 126). However, according to her, there may still be Kantian reasons against
abortion. Denis offers an argument developed on premises extracted from the Kantian
doctrine of duties to oneself (see Kant 2006, 6:415–74). In this approach, women,
like all human agents, have a duty to themselves to promote the moral sentiments of
kindness, love, and sympathy toward others. Pregnancy offers a particularly good
opportunity to develop these proto-moral sentiments in a unique way. This is because
the object receiving and nurturing such feelings is a woman’s own offspring. Accord-
ingly, since pregnancy enables women to promote these emotions toward their
4 Hypatia

fetuses, abortion harms them—in impeding them from discharging a duty to them-
selves. Denis writes:
A woman may have no duty to her fetus, but she has duties to herself
with regard to her fetus. These duties are grounded in the moral usefulness
of certain of her sentiments, and in their role in constituting the animal
nature, which supports her rational nature. (Denis 2008, 131)
[B]ecause this approach also recognizes the value of our natural, animal
impulses to protect one’s own fetus and to care for beings who share our
animality, it nevertheless treats abortion as morally problematic. This
approach does not use women’s feelings as the basis for an argument to
limit their access to abortion. Nor does it say that women should not have
abortions because they might regret it and so be less happy. Instead, it reg-
isters at least some of abortion’s emotional costs to women as moral costs.
(133)
As these passages show, the argument stresses the putative moral damage that a
woman inflicts on herself by interrupting her pregnancy. Indeed, Denis attaches a
particular character to the opportunity provided by pregnancy in developing the
moral sentiments that preoccupy Kant. Two things must be said in this regard. First,
Denis assumes that, so long as pregnancy establishes the possibility of motherhood,
and thus awakens a widespread “maternal protective drive” (130), the moral senti-
ments that are impeded by the interruption of pregnancy are those of motherhood—
or, in Kantian fashion, kindness, sympathy, and love as felt toward offspring. Second,
it is also important to note that protecting pregnancies for this reason (the fact that
they foster proto-moral sentiments associated with motherhood) does not require the
fetus to be a person (a claim that, as we know, Denis denies), for the fetus triggers
such feelings by virtue of the fact that it will eventually become a child.4
Now consider the Aristotelian PA as paradigmatically put forward by Rosalind
Hursthouse. We call this argument “Aristotelian” because, according to Hursthouse,
it is a means of implementing the primary tools of virtue ethics as opposed to those
of deontology or consequentialism. As is well known, virtue ethics is concerned with
living a good or flourishing life. Hursthouse states:
The familiar facts support the view that parenthood in general, and moth-
erhood and childbearing in particular, are intrinsically worthwhile, are
among the things that can be correctly thought to be partially constitutive
of a flourishing human life. If this is right, then a woman who opts for not
being a mother (at all, or again, or now) by opting for abortion may
thereby be manifesting a flawed grasp of what her life should be, and be
about—a grasp that is childish, or grossly materialistic, or shortsighted, or
shallow. (Hursthouse 1991, 241)
This passage states that opting for an abortion may directly affect women’s capacity
to live a flourishing life. A detailed analysis of Hursthouse’s article shows at least
 Itzel Mayans, Mois
es Vaca 5

three ways in which abortion reveals and provokes moral failure. First, as we have
seen, it directly impedes the fulfillment of a constitutive end of women’s well-being.
Second, by pondering whether to abort, women may also exhibit previous vices in
character, for a “virtuous woman” exercises character traits that make her avoid sex-
ual practices that might lead to procreation when she is not willing to embrace such
an outcome (243). And third, an abortion might reflect a mistaken deliberation over
the correct balance of ends and pursuits within one’s life (243).
Now consider the Catholic Church PA. Interestingly, the Catholic Church’s
opposition to abortion was not based until very recently on a Christian-inspired FSA
(that is, on the idea that ensoulment, animation, or hominization occurs at concep-
tion and thus an abortion is an instance of murder) but rather on paternalistic
grounds (that is, on the idea that to allow abortion is to condone wrong practices of
female sexuality that harm women; see Noonan 1977; Hurst 1983; Holland 2006).
Consider what Jane Hurst states with regard to Saint Augustine’s ideas on abortion,
which, in turn, expressed the Catholic Church position of the time:
The mainstream position of the church at this time is expressed in the
writings of St. Augustine. On the one hand, he condemns birth control
and abortion because they break the necessary connection between the
conjugal act and procreation. This confirmed the teachings of the early
fathers on sexuality. On the other hand, St. Augustine held that abortion
was not an act of homicide. Abortion, therefore, requires penance only for
the sexual aspect of the sin. (Hurst 1983, 8)
This view, according to which the harm produced by abortion is related to a sexual
sin rather than to the murder of an ensouled being, persisted in different forms within
the Catholic Church until very recent times. Hurst also points out that, according to
some important medieval penances within the Catholic Church in England and Ire-
land, the required punishment for interrupting pregnancy depended not only on
whether the fetus could be regarded as an ensouled being, which was assumed to
occur forty days after conception, but also as to whether “the poor woman does it on
account of the difficulty of supporting the child or a harlot for the sake of concealing
her wickedness” (17). Again, only in the second case was penitence required. In
short, the Catholic Church PA states that abortion harms women insofar as it indi-
cates a previous incorrect sexual practice: that is, one that may have occurred outside
marriage and certainly one that does not invite procreation. This argument views
abortion as a sexual sin, detrimental to women’s moral integrity, on a par with con-
traception, fornication, adultery, and prostitution.
Finally, consider the now prominent Psychological PA. Unlike the previous PAs,
this argument is empirical in nature: It offers reasons that do not depend on a partic-
ular moral philosophy such as Kant’s doctrine of duties to oneself, Aristotle’s views
on the importance of living a flourishing life, or on religious notions of correct sexual
practices. Rather, it points to the putative consequences that abortion brings to bear
on women’s psychological well-being. According to this argument, empirical evidence
supports the claim that most women who undergo an abortion fail to achieve a
6 Hypatia

healthy psychological adjustment afterwards. Consider what the Report of the South
Dakota Task Force to Study Abortion (a document now frequently quoted both in US
courts and in legal literature) states on the nature of such damages:
The nearly 2,000 post-abortive women who provided testimony to the
Task Force described these damages to themselves. . . The focus we place
on the experiences of women harmed by abortion is appropriate because
in many ways it is only now that we are realizing in an appropriate way,
the magnitude of the injustice of abortion. For most of us, the injustice to
the child has long been apparent; but we have never before seen the mag-
nitude of the injustice to the mothers as witnessed from their personal
testimonies. (RSDTF 2005, 33)
Similarly, when analyzing the shift in the rhetoric within the US Supreme Court
argumentation regarding abortion over the past thirty years, Jeannie Suk specifically
states:
What is considered notable is not just erosion of the abortion right of Roe
v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey; it is
that talk of protecting women from psychological harm caused by their
own decisions seems to recapitulate archaic, paternalistic ideas inconsis-
tent with modern egalitarian ideals. (Suk 2010, 1196)
The stated paternalistic shift in argumentation is now quite prominent within anti-
abortion circles and formal legal argumentation (see Reardon 1987; RSDTF 2005;
Ivey 2008; Siegel 2008; Suk 2010). All of the arguments analyzed by this literature
defend the same conclusion—that aborting has pervasive negative psychological con-
sequences for women—and have even revitalized the idea of the existence of the so-
called “Abortion Trauma Syndrome” (see Reardon 1987). Accordingly, in line with
the Kantian PA, the Aristotelian PA, and the Catholic Church PA, the Psychologi-
cal PA holds that women harm themselves when they decide to have an abortion.

II. DIFFERENT PATERNALISMS, DIFFERENT ABORTION POLICIES

In the previous section we established PA’s general form and presented four concrete
examples. In this section we will consider different ways in which paternalistic anti-
abortion policies might be implemented when justified by versions of PA.
As we said in the introduction, it is usually assumed that an action or policy is pater-
nalistic if it represents an interference that, without previous consent, limits the agent’s
range of options by arguing that this interference is in her best interest. Accordingly, an
action or policy is defined as paternalistic by the reasons given to justify it. In other
words, only if these reasons appeal to the agent’s well-being or best interest as a means
for warranting the restriction of her options can we say that such an action or policy is
paternalistic. Thus, the very same limitation on a person’s liberty might count as pater-
nalistic or not depending on its justification or motivation (Husak 2012, 468).
 Itzel Mayans, Mois
es Vaca 7

It is also common practice to distinguish among three forms of paternalist restric-

tions: hard, soft, and libertarian. Hard paternalism includes all actions and policies that
in fact reduce the range of the agent’s options by arguing that such a limitation is for
her own good (see Feinberg 1986). Contrarily, soft paternalism restrains the agent’s
range of options only until she has acquired the relevant information on the conse-
quences of the stated course of action (see Feinberg 1986). The idea is that this tem-
poral restriction of liberty will make the agent’s action more informed and therefore
more voluntary (as voluntary action, according to Feinberg 1986, 12, is a matter of
degree). Finally, libertarian paternalism holds that the state should make the best
alternatives more attractive and accessible without thereby prohibiting access to
worse options (see Sunstein and Thaler 2008). For instance, by making healthy
options more obtainable in cafeterias and unhealthy ones less so, or by automatically
subscribing workers to pension schemes that earmark money for retirement—forcing
workers to make a conscious effort to opt out of such schemes, if they want to. As is
well known, the idea behind this view is that agents need just a little nudge to
choose or stay on the best course of action for themselves.5
Finally, it is also important to note that most of these polices seek to protect citi-
zens’ physical and psychological health. However, other paternalistic policies may
depend on a broader conception of well-being and what it means to live a good life.
This connects paternalistic policies with what is known in a related literature as “per-
fectionism” (see Raz 1986, 422–29; Quong 2011, 73–107), a term that refers to the
perfection or excellence that a human life might achieve and the state’s importance
in helping citizens to this end. Thus, if perfectionism is taken as an instance of pater-
nalism, we can also classify paternalistic policies depending on the interests they want
to protect: those trying to protect physical and psychological health, and those trying
to protect the interests of a broader valuable life project.
When it comes to abortion, we can identify policies that are justified and that
promote restrictions along this full paternalistic spectrum. A hard paternalistic abor-
tion policy states that, since abortion hurts women, it should be forbidden tout court.
A soft paternalistic abortion policy holds that, since abortion hurts women, it should
be forbidden until sufficient information on the good of motherhood is provided.
Finally, a libertarian paternalistic abortion policy holds that, since abortion hurts
women, access to abortion clinics should have a cost for them. We will now provide
some examples of each of these policies as adopted in different democratic societies.

EXAMPLE OF A HARD-PATERNALISTIC POLICY

Consider the failed legal attempt made in 2014 by the current conservative govern-
ment in Spain to change the Organic Law 2/2010 on Sexual and Reproductive
Health and Voluntary Interruption of Pregnancy—a law that allows women to inter-
rupt their pregnancies voluntarily without specifying further reasons or circumstances
(Ley Org
anica 2/2010 2010). The legal attempt in question sought to severely restrict
women’s freedom to opt for interrupting their pregnancies. The proposed law held
8 Hypatia

that a woman would be able to legally access abortion services only if she were expe-
riencing health complications due to her pregnancy, or her pregnancy were the pro-
duct of rape, or there were proven fetal malformations. If one of these three motives
was certified by a physician, a woman wanting to interrupt her pregnancy was then
required to endure a long process that included exposure to information about the
good of motherhood by a health provider—in a different clinic from the one in
which the abortion procedure would have taken place. Finally, the decision to con-
tinue with the procedure was ultimately placed in the hands of a judge—who had
the power to request the opinion of the woman’s partner or parents before making his
decision (see Anteproyecto de ley 2013).
This was the long and hard judicial path that could lead to an abortion as proposed
by the failed Spanish law. Nevertheless, most women would have been simply forbidden
to access abortion services, since their reasons wouldn’t have corresponded to any of
the three legal motives in the first place. We identify this policy as an instance of hard
paternalism because of its justification: the public defense of the law was based entirely
on the claim that women have a “right to maternity” (see Garea 2012; Sanz 2012).
Strangely, the Minister of Justice who promoted the law thought that, by forbidding
abortion in the vast majority of cases, such a right would be protected—without notic-
ing that, by imposing this restrictive policy, the putative “right to maternity” looked
more like an obligation than a right. In any case, the fact that the public justification
for the stated law was founded wholly not on a FSA but on the importance of maternity
for women—that is, on the idea that refraining from being a mother is a tragedy pro-
duced by “society’s structural violence against women” (see Garea 2012), and that the
“liberty of maternity is what makes women authentically women” (see Sanz 2012)—
makes this policy an instance of hard paternalism on abortion.

EXAMPLES OF SOFT PATERNALISTIC POLICIES

The US Supreme Court resolution to impose a period of time before allowing women
to carry out an abortion (Planned Parenthood v. Casey 1992) is a quintessential exam-
ple of a soft paternalistic policy. This judicial decision imposes the so-called concept
of “women’s informed consent.” Consider what Linda McClain states when criticizing
such an imposition:
The Casey joint opinion upholds informed consent measures and waiting
periods on the assumption that they inform, rather than hinder, women’s
“free choice”: they promote women’s psychological well-being and facili-
tate the “wise exercise” of their liberty. Governmental persuasion allegedly
helps women not simply to choose but to choose well. (McClain 2006,
238; italics and quotation marks in the original, references removed)
As McClain critically reports, the time frame imposed by the informed consent policy
on access to abortion services is entirely justified by the idea that such conditions will
enhance women’s agency. Just as in John Stuart Mill’s famous example of the bridge
 Itzel Mayans, Mois
es Vaca 9

(in which a temporal limitation of a person’s liberty to cross a bridge is justified

because her decision to cross is enhanced by knowing that the bridge is unsafe) (Mill
2010, 96), a woman’s decision on whether to abort is supposed to be improved with
the establishment of waiting periods in which she can reflect on the risks entailed by
her options.
Interestingly, as illustrated in a comparative document recently issued by the Cen-
ter for Reproductive Rights (CRR 2015), this reasoning also underlies the waiting
periods and mandatory counseling imposed by the laws of other jurisdictions in which
abortion is legal: for example, in Germany (three-day waiting period and mandatory
counseling), the Netherlands (six-day waiting period), Belgium (six-day waiting per-
iod), Spain (three-day waiting period and mandatory counseling), Hungary (double
mandatory counseling), the Czech Republic (mandatory counseling), Slovakia (two-
day waiting period and mandatory counseling), Russia (two- or seven-day waiting
period, depending on the stage of pregnancy, and mandatory counseling), and
Macedonia (three-day waiting period and mandatory counseling).
Of all these laws, it is particularly salient that Russia’s law directly requires the coun-
selor to “awaken [the woman’s] maternal feelings” (CRR 2015, 4). Likewise, the Mace-
donian law requires the counselor to mention “‘the possible harm’ abortion can cause
to women’s health, including their psychological health, and the ‘possible advantages’
of continuing a pregnancy” (4). Similar notions are stated expressly in the Slovakian
and Spanish laws (see CRR 2015, 4; Ley Org
anica 2/2010 2010, Art. 17, 4).

EXAMPLES OF LIBERTARIAN PATERNALISTIC POLICIES

In 2015, according to Americans United for Life (a private pro-life organization),

300 regulations were proposed “on behalf of women” in forty-five states in the US,
making abortions harder to get:
Advocates of legislation proposed this year say the restrictions are aimed
at safeguarding the health of women. Clinics and mainstream medical
groups, however, say most of these rules do not improve patient safety and
are thinly disguised efforts to discourage women from having abortions
and to make them more expensive, which has a disproportionate effect on
the poor. (Robles 2015)
One of the best examples of the increasing costs and difficulties in accessing abortion
procedures as mandated by this set of policies is expressed by what might happen in
Texas:
If the new law requiring abortion facilities to be licensed as ambulatory
surgery centers takes effect, Texas would be left with fewer than 10 clin-
ics. That would put 900,000 women of reproductive age more than 150
miles from the nearest abortion facility in Texas. (Editorial Board, New
York Times 2015)
10 Hypatia

Known as HB2, this Texas law is supposed to protect women’s health by putatively
strengthening the health and safety standards of abortion clinics. However, it is
grounded in strong libertarian paternalistic reasoning, for it tries to make the “wrong
option” hard to reach for most Texas women without legally prohibiting it. This
intention was expressed in a public declaration made by Rick Perry, then-governor of
Texas: “An ideal world is one without abortion; until then, we will continue to pass
laws to ensure that they are rare as possible” (CRR 2016).
All of these examples show how different paternalistic justifications and restrictions
are now influencing abortion-related public policy in different democratic societies.
Behind these policies, which we will loosely call “the new abortion laws,” there is a
clear rhetorical shift that recreates a “woman’s protective discourse” and a “woman’s
health discourse” (see Ivey 2008, 1481). These discourses depict abortion not as a
valuable choice enhancing women’s liberties but rather as a misguided choice resulting
from perverse manipulation—whether exerted by physicians, family members, or the
very “culture of death” of contemporary societies. Women are portrayed as occupying
a position of extreme social vulnerability, and this position is to explain why they are
not able to make what in every case represents the correct decision: not to abort.

III. RESPONDING TO THE PATERNALISTIC ARGUMENT

In this section we will present the reasons why the stated PAs, as well as the PA-dri-
ven reasoning behind the new abortion laws, are flawed. As we have seen, the idea
at the heart of all PAs is that, since motherhood is a constitutive end of women’s
well-being, women hurt themselves when they decide to abort and thus don’t become
mothers. As we mentioned in the introduction, there are at least four serious prob-
lems with this idea.
The first problem is that it is not clear that many PA proponents are genuinely
concerned with the protection of women’s motherhood. A first bit of evidence sup-
porting this assertion is that PA proponents are usually against abortion but not
against putting up the born child for adoption. In fact, they usually promote the
option of putting the child up for adoption as a reason not to abort. This was the case,
for instance, in the failed law proposed by the Ministry of Justice in Spain: If a
woman satisfied one of the three motives that made her eligible for an abortion pro-
cedure, the mandatory information that she would have received was to include a
statement that she could instead put the child up for adoption (see Anteproyecto de
ley 2013, art. 4). This very fact casts serious doubt on the notion that this and similar
laws are honestly invested in the protection of motherhood. At most, their real con-
cern, upheld as a constitutive end of women’s well-being, is the end of gestation and
of bringing children into the world—regardless of whether women will be able to
carry these children to term appropriately (see Kollar and Loi 2015), rear them ade-
quately, or even rear them at all. However, such an end is clearly narrow in relation
to all those ends that women recognize as valuable in their own lives (see Ginsburg
1989, 143–72; Little 1999). It is also an extremely bizarre conception of the nature
 Itzel Mayans, Mois
es Vaca 11

of motherhood. In short, bringing children into the world is a poor proposal for some-
thing that is supposed to be considered a constitutive end of well-being.
Furthermore, if PA proponents really believed that motherhood is a necessary end
of women’s flourishing, they would also favor policies encouraging infertile women to
adopt children, and fertile women to have children even if they have not yet done
so, with at least the same enthusiasm that they show in supporting policies that for-
bid abortion. That is, their opposition to abortion would be just one part of a larger
policy concerned with promoting motherhood in women’s lives. However, consider
again the Minister of Justice’s law in Spain: Despite its supposed commitment to the
dubious claim that “the liberty of maternity is what makes women authentically
women,” nothing was legislated on the importance of encouraging all women to exer-
cise this liberty and thus become “authentic women.”
For these two reasons—that is, that PA proponents promote the recourse to adop-
tion as a reason not to abort and that they do not encourage maternity among infer-
tile and childless women—it is not clear that they have a real concern for women’s
motherhood or for the exercise of maternity rights. Rather, the use of this rhetoric
seems to be nothing more than a new political strategy for advancing an old public
anti-abortion agenda.
So let us shift to the second of PA’s problems: that even if it is granted that PA
proponents are truly concerned with women’s motherhood (that is, that they really
believe that childrearing is constitutive of women’s well-being), such concern is con-
troversial in nature, for democratic societies are the home of many different views on
the elements that constitute the best human life. As Travis Rieder holds, although
some people think that having biological children is a project that might be a neces-
sary component of such a life, some people do not (Rieder 2015, 301–303). It is cer-
tainly the case that many women do not see maternity as necessarily tied to their
own flourishing (see McTernan 2015, 232–36). Considering this variety of views
regarding the value of motherhood, liberal democratic states should refrain from coer-
cively imposing one view to the detriment of others. A democratic state might allow
(see Rawls 2005)—or even promote (see Raz 1986, 369–430)—certain ways of living
based on comprehensive or perfectionist views about what is valuable in life; how-
ever, it cannot restrict valuable options. And, surely, adopting a way of life that is
incompatible with childrearing (for instance, a time-consuming job) is one such
option for women—just as it is for men.
This second problem directly challenges the Kantian PA, the Aristotelian PA,
and the Catholic Church PA, for all of these arguments are based on what Rawls
calls comprehensive doctrines (Rawls 2005). Given the lack of space, we cannot
expand on what we consider the many internal flaws of each argument. However,
from a liberal and democratic point of view, the main problem of the three PAs is
that they are committed either to a sectarian doctrine of women’s duties to them-
selves or to a specific philosophical view of what constitutes a flourishing life. As we
have seen, the Kantian PA stresses the importance of developing the proto-moral
emotions associated with motherhood, the Aristotelian PA points to the role of
motherhood in achieving a flourishing life, and the Catholic Church PA stresses the
12 Hypatia

significance of living a moral life without sexual sin. Nonetheless, these three views
are foreign to the values articulated in the public reason of liberal democracies (see
Gutmann and Thompson 2004; Rawls 2005; Quong 2011) and therefore must be
excluded from the justification of public policy within these societies. Because of this,
PAs based on comprehensive ideas of motherhood are always inadequate justifications
in debates regarding abortion policies.6
So let us shift to the third of PA’s problems: that is, that there is no solid empiri-
cal evidence showing that avoiding motherhood harms women’s psychology. This
calls directly into question the Psychological PA, for even though this reasoning is
not comprehensive in nature, its empirical credentials are highly disputed.
As McClain holds, despite the resources deployed in trying to show that abortion
has intrinsic negative effects on women’s psychological well-being, no one single rig-
orous study has been able to prove it (McClain 2006, 239). To begin with, it is very
important to note how proponents of the Psychological PA tend to exaggerate both
the scale of the putative negative effects of abortion on each individual woman, and
how widespread these effects are across all women who have had an abortion. Con-
sider what Randy Alcorn, a high profile anti-abortion activist, states in this regard:
Dozens of studies tie abortion to a rise in sexual dysfunction, impotency,
aversion to sex, loss of intimacy, unexpected guilt and extramarital affairs,
traumatic stress syndrome, personality fragmentation, grief responses, child
abuse and neglect, and increase in alcohol and drug abuse. (Alcorn 2000,
193)
Notice how grave and pervasive the psychological effects of abortion are portrayed to
be—abortion is even viewed as the cause of personality fragmentation. These puta-
tive effects go well beyond the original statement made by David Reardon on the
“abortion trauma syndrome” (Reardon 1987). However, like Reardon’s statement,
these further instances of the Psychological PA simply lack a serious empirical foun-
dation; they merely reproduce a baseless and incendiary rhetoric of harm, for the psy-
chological studies that are supposed to support them are now highly discredited in
the psychological literature. As Gail Robinson and her colleagues have decisively
argued, the problems with these studies
include, but are not limited to: poor sample and comparison group selec-
tion; inadequate conceptualization and control of relevant variables; poor
quality and lack of clinical significance of outcome measures; inappropri-
ateness of statistical analyses; and errors of interpretations, including
misattribution of causal effects. (Robinson et al. 2009, 269)
Robinson details at least five gross and pervasive problems in the studies on which
most literature defending the Psychological PA is based. The first four problems
might fuel the typical qualitative and quantitative exaggerations found in such litera-
ture. Due to lack of space, here we will only briefly expand on the fifth problem: the
misattribution of abortion’s causal effects on women’s health.
 Itzel Mayans, Mois
es Vaca 13

No study thus far has discarded other and more plausible hypotheses that best
explain the psychological maladjustments that some women indeed experience after
having an abortion. One such hypothesis is stated by David Fergusson, John Hor-
wood, and Elizabeth Ridder, who claim that “it could be proposed that our results
reflect the effects of unwanted pregnancy on mental health rather than the effect of
abortion per se on mental health” (Fergusson, Horwood, and Ridder 2006, 22). A fur-
ther hypothesis (see Robinson et al. 2009; Dadlez and Andrews 2010, 451) points to
the existence of previous psychological problems affecting women:
Many studies attribute post-abortion mental states to the abortion experi-
ence without providing adequate control for pre-abortion mental states—
even though the literature suggests that previous psychiatric history is the
most consistent predictor of psychiatric disorders following abortion.
(Robinson et al. 2009, 270)
Yet another hypothesis emphasizes the stressful conditions that women must endure
before being able to exercise their legal right to abort. The increasing financial,
social, geographical, and institutional barriers confronted by women are variables that
can have a significant impact on their psychology (Fergusson, Horwood, and Ridder
2006, 22; Robinson et al. 2009, 271).
Finally, as Marcia Ellison (Ellison 2003) and Anuradha Kumar have persuasively
argued, the cause of the psychological maladjustments that some women suffer when
facing abortion-related decisions may well result from an “abortion stigma” placed on
those who choose to abort, a stigma that labels them as “promiscuous, sinful, selfish,
dirty, irresponsible, heartless or murderous” (Kumar, Hessini, and Mitchell 2009,
629). As such, negative emotional consequences following an abortion may well orig-
inate in its strong social condemnation—which, in fact, this paternalistic trend of
argumentation directly promotes.
In sum, there are at least four possible explanations why some women may suffer
psychological problems after an abortion: the very fact of facing an unwanted preg-
nancy; previously deficient psychological health; the social stigma associated with
having aborted; and the increased financial, social, geographical, and institutional
complications entailed by seeking an abortion. To date, no single study has rooted
out these further hypotheses.
The fact that there is no solid empirical evidence to support the existence of intrin-
sic damage provoked by the voluntary interruption of pregnancy is a strong reason
against soft paternalistic abortion policies—such as the US Supreme Court’s “informed
consent” policy, as well as the waiting periods and mandatory counseling requirements
stipulated by the European laws reviewed in the previous section. Remember that in
Mill’s example of the bridge (perhaps the paradigmatic example of a justified soft pater-
nalistic intervention in personal liberty), it is established that there is sufficient evi-
dence showing that crossing the bridge is unsafe (Mill 2010, 96–97). If this were not
the case, preventing the person from crossing would simply be unjustified. Analogously,
since evidence on the harms of abortion is unsound, the temporal limitation of women’s
right to abort on a soft paternalistic basis is unjustified.
14 Hypatia

The very same must be said about the libertarian paternalistic policies reviewed in
the previous section. As we have seen, this set of laws would make access to abortion
services extremely difficult for thousands of women in the US. However, since no
reliable evidence establishes that abortion is a bad option to take, there is no justifi-
cation for making it the hardest option to attain. Furthermore, as Cass Sunstein and
Richard Thaler hold, a libertarian paternalistic policy will always allow “low-cost opt-
out rights” (Sunstein and Thaler 2008, 237). That is, a person can always and easily
choose the “bad option” if she wants. In contrast, having to travel long distances to
the nearest abortion facility cannot count as offering a low-cost opt-out right.
Accordingly, considering both that evidence does not show that abortion is a “bad
option” and that easy access to such an option is not guaranteed, these policies are
not proper and justified instances of libertarian-paternalism—in spite of what some of
their proponents maintain.7
Finally, there is the fourth of PA’s problems: that is, even if it were the case that
the prevention of motherhood caused psychological distress in women, this would
not be sufficient reason to allow the coercive use of state power to prevent such a
harm. For a person might pursue any number of actions that put her in psychological
distress, and many ways of living have serious drawbacks. Think of maternity itself.
Pregnancy certainly involves some health risks, and childrearing might have an unex-
pected impact on women’s life plans. Does this mean that the state should require
women to receive mandatory counseling on these risks and impose a compulsory
waiting period before allowing them to continue their pregnancies? Well, it seems
that the answer is an unequivocal no. It is assumed that women, having received
exclusively health-related information, are prepared to make the decision that is best
for them on their own. The decision to abort is strictly analogous, so far as paternalis-
tic worries are concerned; the default assumption must also be that, after receiving
exclusively accurate health-related information regarding abortion, women are pre-
pared to make the decision that is best for them on their own.
We can thus conclude that, despite its innovative force, the entire paternalistic
trend on the topic of abortion is severely problematic. First, it is not clear that many
PA proponents are genuinely concerned with the protection of women’s motherhood.
Second, the very idea that motherhood is constitutive of women’s well-being is com-
prehensive in nature and thus inadequate to justify public policies within pluralistic
democratic societies. Third, there is no solid empirical evidence showing that women
who deprive themselves of such an end do in fact harm their own psychology. Fourth
and finally, even if women were indeed harming themselves in such a way, this
would not justify coercive state intervention in order to prevent it.

NOTES

This article received very helpful comments from Lisa Miracchi, Nils-Hennes Stear, Enri-
que Camacho, Cristian Timmermann, and from the members of the workshop Autonomy,
Control and Authority in Cordoba, Argentina, the Buenos Aires Political Philosophy
 Itzel Mayans, Mois
es Vaca 15

Group, and the Seminar of Political, Legal, and Ethical Theory of the Institute for Philo-
sophical Research, UNAM (National Autonomous University of Mexico). We would also
like to thank the two anonymous referees from Hypatia for their constructive comments.
The article was funded by the research project PAPIIT IA400715, DGAPA-UNAM, and
by Itzel Mayans’s Postdoctoral Fellowship from DGAPA-UNAM (UNAM, Becaria del
Programa Posdoctorales en la UNAM, Instituto de Investigaciones Jur
ıdicas).
1. The authors contributed equally to writing this article.
2. Considering the practical prominence of the Psychological PA in the justification
for the new abortion laws, we will devote more space to showing its flaws.
3. It should be stressed that there are also mixed anti-abortion arguments. These argu-
ments hold that abortion attacks both fetuses’ moral status and women’s well-being. In this
article, as we have said, we will focus only on PAs as such. However, our main claim could
also serve to refute the paternalistic reasoning of the mixed anti-abortion arguments.
4. Another Kantian PA might allude to Kant’s ideas in Lectures on Ethics stating that
we have a duty to ourselves not to treat nonrational animals with cruelty (thanks to an
anonymous referee for stressing this point) (Kant 1997, 27:459). In spite of the possible
internal problems with this reasoning (such as the commitment to the claim that we can
be cruel to creatures who do not feel pain—since, before the first twelve weeks of gesta-
tion, fetuses have not developed a central nervous system), we will see in section III that
there are other reasons to reject Kantian-inspired PAs like the two already mentioned.
5. It is worth noting that, strictly speaking, libertarian paternalism is not a form of
paternalism at all, since the agent’s range of options is not limited by the state: citizens
still have access to all options (though some become more difficult to attain). A similar
type of justification is known as means paternalism—that is, the idea that the state should
impose the correct means on citizens for the ends they themselves accept. The coercive
imposition of adequate means for voluntarily elected ends might be considered a way to
enhance personal autonomy.
6. It is also important to mention that both Denis and Hursthouse impose limita-
tions on the scope of their respective PAs. In particular, they mention some circum-
stances in which aborting might be morally justified from a woman’s point of view
(see Hursthouse 1991, 241; Denis 2008, 131–32). Hursthouse also explicitly states that
her PA is independent of whichever public policies are correct on this matter (Hurst-
house 1991, 234–35).
7. In a personal discussion, Cass Sunstein agreed that the new abortion laws pro-
posed in the US are not justified instances of libertarian paternalism. In line with our first
objection, he questioned the sincerity with which PA proponents try to protect women’s
well-being.

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