Innocence Beyond Moral Agency: A Response to Nobis and Dudley

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In their 2021 award-winning Salon opinion piece, "Why the Case Against Abortion Is Weak, Ethically Speaking," Nathan Nobis and Jonathan Dudley argue that most abortions are not morally wrong. In doing so, they critique a common argument against abortion, sometimes called the "humanity argument," which claims that abortion is morally wrong because it kills fetuses that are "innocent human beings with the right to life." This post responds to one of their objections to the humanity argument: the claim that fetuses can’t be innocent. (The objection is also discussed here, here, and here.)

Nobis and Dudley argue that fetuses can't be innocent because “calling fetuses ‘innocent’ assumes that they are persons: ‘innocence’ implies the potential for guilt, and that’s only true of persons...[and]...fetuses are not persons..., since they...lack consciousness-enabling brains.”

Simply put, Nobis and Dudley contend that embryos and early fetuses can’t be innocent because they are not persons. More specifically, they argue that something can be considered innocent only if it is a moral agent—a being capable of being held morally responsible for its actions. Since embryos and early fetuses cannot perform actions and therefore cannot be held morally responsible, Nobis and Dudley conclude that "innocence is a concept that just doesn’t apply to fetuses."

However, their view of innocence fails to account for how the concept is commonly used in ordinary moral discourse. In everyday language, people often employ the notion of moral innocence when discussing the treatment of non-agents. Even some philosophers claim that “animals and infants constitute paradigmatic cases of innocence and vulnerability” (Why Animal Suffering Matters: Philosophy, Theology, and Practical Ethics, 5). For this very reason, Tom Regan maintains, “it would be arbitrary in the extreme stipulatively to confine talk of who is ‘innocent’ only to moral agents” (The Case for Animal Rights, 295).

While Regan agrees that something can be innocent if it is a moral agent, he also argues that innocence applies to moral patients—beings incapable of moral agency but still deserving of moral consideration. For Regan, moral patients are innocent when they are treated unjustly without having done anything to deserve such treatment. Addressing those who, like Nobis and Dudley, argue that moral patients cannot be innocent, Regan states: “The inability of moral patients to do anything that merits treatment prima facie violative of their rights does not show that they cannot be innocent. On the contrary, what this shows is that, unlike human moral agents, they cannot be anything but innocent” (295, italics in original).

Regan’s understanding of innocence better reflects how the concept is used in everyday moral discourse, making it preferable to Nobis and Dudley's view. Consequently, merely pointing out that embryos and early fetuses are not moral agents—something no one disputes—does not support their claim that "innocence is a concept that just doesn’t apply to fetuses." As a result, this particular objection to the humanity argument—abortion is morally wrong because it kills fetuses that are "innocent human beings with the right to life"—ultimately fails.

To be clear, this post does not argue that embryos and early fetuses are innocent; demonstrating that would require showing they are capable of being treated unjustly, which is beyond the scope of this post. Rather, the point is that this particular objection to the humanity argument fails because it relies on a narrow understanding of innocence that cannot account for its broader application in moral discourse.