From Moral Issues that Divide Us
2. The Legal Right to Abortion: Roe v. Wade -- Harry Blackman and Byron White
A sixteen-year-old girl named Jenny, from a rural North Carolina town, got pregnant by her high school boyfriend. She kept the news from her father who was a stern Baptist pastor. Jenny was raised with the conviction that abortion was murder and, knowing her father’s extreme condemnation of premarital sex, she couldn’t confess her pregnancy to him. Trapped by two unthinkable alternatives, she ignored the situation until it was too late and she secretly gave birth in her bedroom. She then panicked and felt that disposing of the baby was the only way to make her problem go away. She suffocated the baby by closing it in a plastic bag and then putting it in a garbage can outside of a fast food restaurant. Shortly after, a restaurant worker discovered the dead infant and reported it to the police, who successfully traced it back to Jenny. Investigators considered that the baby might have died naturally before it was placed in the bag. They gave Jenny the benefit of the doubt without pushing the matter too far. She was not charged with a serious crime, and was only required to go to counseling.
Stories like this unfortunately occur too often, and they illustrate how women of all ages are trapped by unwanted pregnancies, often with no easy path to resolving their crisis. Abortion is an option, but it is a very controversial one and, in fact, probably the most contentious moral issue we have today.
Perhaps the biggest mistake when looking at the abortion question is to assume that all abortions are the same; we might think that they are all immoral, or, on the other hand, that they are all morally permissible. The fact is, though, that there are perhaps 100 distinct abortion scenarios that differ regarding the fetus’s age and health, the mother’s life and health, and possible adverse impact on society. Ideally, each one of these scenarios should be assessed on its own terms before making a moral pronouncement. We will begin by looking at some of these factors.
Understanding the nuances of the abortion controversy requires some factual knowledge about abortion practices themselves, and a good place to begin is with some terminology about stages of fetal development and methods of performing abortions.
The nine month – or 40 week – fetal development process is commonly divided into three trimesters. In the first trimester the male sperm and female egg merge and become a single-cell zygote; through cell division, by the third day it grows to about 16 cells. Within a week the cell cluster attaches to the woman’s uterus and forms into an embryo. By the fifth week its brain begins to form, its heart begins to beat, and it takes on some external features of vertebrate animals. By the eighth week it is capable of some motion and its eyes begin to form. At the beginning of the second trimester, at around 13 weeks, the embryo is from thereon referred to as a fetus and is about an inch and a half in size. As the fetus continues to grow, by week 16-20 the woman can feel some fetal movement, an event called quickening. By the beginning of the third trimester, at around 26 weeks, the fetus is about 8 inches long and is sufficiently developed so that it could possibly survive premature birth, which is called viability. The fetus continues to grow throughout the third trimester, and by weeks 35-40, at around 20 inches, it is fully developed and ready for birth.
Only about half of fertilized human ova end in a live human birth, and unsuccessful ones miscarry. Almost three-quarters of these occur during the first trimester, and many take place so early on that the woman may not even know that she was pregnant. The high prevalence of miscarriages is the result of a natural screening process in the woman’s body, which rejects embryos that show indications of abnormalities. About half of these are genetic problems, and others are the result of low hormone levels in the woman. While the woman’s natural screening process filters out most genetically problematic fetuses, about five percent escape detection and ultimately result in the birth of infants with congenital problems, often very serious ones. The high rate of miscarriages itself has implications on the abortion debate, particularly regarding the abortion of seriously deformed fetuses. For example, one might argue that when the woman’s natural screening mechanism fails to detect a genetically problematic fetus, it is reasonable to intervene and terminate the pregnancy, just as the woman’s natural process would have if it was foolproof.
The term “abortion” as is typically used in the abortion debate refers to the intentional termination of pregnancy and expulsion of the embryo or fetus. Abortion methods vary greatly, and may occur at virtually any point within fetal development.
The first possible pregnancy-termination method is use of emergency contraception, commonly referred to as the morning after pill, which a woman might take within a few days of having intercourse. It consists of a drug containing high doses of hormones that disrupts the earliest stages of pregnancy in one of three ways. First, if the woman has not yet ovulated, it can prevent her from doing so while the sperm inside her is still active. Second, if the woman has ovulated, it can prevent sperm from fertilizing the ovum. Third, if the ovum is fertilized, it can prevent the zygote from implanting in the uterine wall, and thus prevent further development. It is only this third avenue that is a type of abortion, while the first two are types of contraception. The woman, though, is not in a position to know which of these is taking place. Emergency contraception is effective for only 72 hours after intercourse, and, consequently, if the woman is indeed pregnant, the zygote will at most be a microscopic cluster of cells. Emergency contraception is about 75% effective, and poses no risk to embryos which survive this method. The major practical disadvantage of emergency contraception is that it requires the woman to make a quick decision and have quick access to the drug. The reality, though, is that many women will not make such a decision and instead hope for the best. Further, access to emergency contraception may require a prescription, particularly for women under age 18, which in turn requires an appointment with a willing physician in a timely fashion.
If the woman misses the opportunity to use the morning after pill, the next possible method is an abortion-inducing drug called Mifepristone, more commonly known as RU486. Developed in France, and legalized there in 1988, it was eventually approved in the U.S. with much controversy in 2000. Unlike emergency contraception, which at most prevents the Zygote from implanting on the uterine wall, RU486 can expel embryos that are already implanted. The drug functions by breaking down the uterine lining as it would during menstruation, thus expelling the fetus. While the window of opportunity for use of this drug is wider than that of emergency contraception, the timetable is still rather restrictive, and can be used only for about one month after the earliest point at which a woman could discover that she is pregnant through a pregnancy test. At the very most, the expelled embryo would be six weeks old. The practical disadvantages of RU486 are the same as those of emergency contraception. Even after one month the woman may still not be psychologically in a position to make the decision, and, again, timely access to a willing physician may be an obstacle.
Emergency contraception and RU486 both involve expelling embryos at very early stages. However, once embryos and fetuses grow in size, only surgical methods can be used to remove them, and the larger the fetus, the more intrusive the procedure is. The first of these surgical methods is vacuum aspiration, which can be performed at any time during the first trimester of pregnancy until week 12. One type of vacuum aspiration involves the use of a syringe to extract the embryo. The practical disadvantage of this approach is that it is a form of surgery, and although it’s relatively safe with the whole procedure taking about 15 minutes, there is some risk of infection and uterine injury. At around $500, it is also more costly than drug-induced abortions. The next surgical method is dilation and curettage, which involves opening the cervix and scraping out the embryo with a curved instrument called a curette. It can be performed between 6 and 16 weeks of pregnancy. Use of this method is in decline now because of its higher costs and complication rate relative to the vacuum aspiration method. With fetuses between 15 and 20 weeks, a variation of this method is used called dilation and evacuation, which involves dismembering and removing the fetus piece by piece with forceps. A less frequently used method for fetuses older than 16 weeks is instillation, which involves injecting a chemical solution into the amniotic sac; the fetus absorbs it, causing it to die, and it is then expelled from the fetus.
Many of the above abortion methods are disturbing, particularly the later term ones. For many people, such a sense of revulsion is enough to judge these abortion practices immoral. However, revulsion alone is not always a good indicator of an action’s moral worth. Consider, for example, the sense of revulsion that we might experience when witnessing similar abortion methods performed on pregnant animals, such as dogs, chimpanzees or elephants. There is something grizzly about the surgical procedures themselves that are inherently disturbing even when not performed on humans, and that must be factored into the equation. While there may be an important place for our emotional reactions when assessing moral controversies, they are not magical indicators of where the truth lies, and they should not override our more impartial reasoning on issues.
In Vitro Fertilization and Stem Cell Research
The abortion controversy directly impacts other issues in biotechnology, one of which is in vitro fertilization and stem cell research. In vitro fertilization—commonly referred to as test tube babies—involves fertilizing a human egg with a sperm outside the womb, typically in a glass container (“in vitro” meaning “in glass”). The procedure is a solution for women who for various reasons have difficulties conceiving. A woman is first given fertility drugs which stimulate her ovaries to drop several eggs. Up to ten of these are retrieved, injected with sperm, and, through cell division, each grows to contain about eight cells. After a couple days, up to three are implanted in the woman’s uterus, which increases the chances that at least one will succeed. The remaining ones are frozen in liquid nitrogen, where they can later be unfrozen and used by the mother in the future, thereby eliminating the financial expense of the first half of the in vitro fertilization procedure. If frozen properly, zygote clusters can last indefinitely, and one is known to have been successfully implanted after 13 years. When there is no longer a need for the remaining zygotes, they are destroyed. Currently there are around half a million frozen zygotes in the U.S.
While in vitro fertilization is now an established and largely reputable procedure, it still faces some moral opposition. One problem is with the creation of such a large number of zygotes, when, for one reason or another, only a small percentage will make their way to birth. Some of this problem might be counterbalanced by the fact that even normal pregnancies have an exceptionally high rate of miscarriages. That is, any attempt to get pregnant will involve a high failure rate. A second problem is that the large number of stored zygotes is largely a function of financial savings. It is more cost-effective to retrieve and fertilize 10 eggs at one time, than it is to do one on ten separate occasions. If creating frozen zygotes is something we should be cautious about, it seems odd to create a surplus of them merely out of a desire for cost savings. A third problem relates to the decision to destroy the frozen zygotes when they are no longer needed, just as we might throw out a chair or a cup when we no longer need it. For the most part, the frozen zygotes are the property of the parents, which they can do with as they see fit.
A second issue in biotechnology that’s closely related to the abortion controversy is that of stem cell research. Stem cells are a special kind of biological cell that in its current form has no specific function assigned to it, such as being a heart cell, brain cell, or bone cell. However, when placed in the right environment it can morph into any type of cell in our bodies. The specific kind of stem cell used in medical research is called a pluripotent stem cell, which suggests that they have the power to become many different things. Stem cells hold open the promise of curing the most devastating illnesses, such as Alzheimer’s disease. When placed in the brain, they sense their surroundings and can replace damaged brain tissue in the region. In and of itself, this is all good news. The controversy concerns where stem cells come from, and, as of now, the answer is human zygotes and embryos. Many come from unused frozen zygotes at in vitro fertilization clinics. Thus an otherwise promising course of research is compromised by the issue of the moral status of zygotes and embryos. This has impacted the availability of government funding of stem cell research, which is no small problem since the government is the main source of funding for most scientific research of all types. Almost weekly, though, advances are made in stem cell technology, many of which aim to produce them without deriving them from zygotes and embryos. So, the moral controversy surrounding stem cell research may soon be resolved by finding less controversial substitutes.
What People Think
The popular media often convey the impression that the country is radically divided between conservatives and liberals on the subject of abortion, where the two sides are engaged in an all out cultural war against each other. While that may be an accurate depiction of the attitudes of political commentators and members of abortion organizations, the nation as a whole appears to be more moderate about the issue and exhibits more overlap than we are often led to believe. Here, for example, are three recent national surveys which reflect this (from www.pollingreport.com):
"Which of these positions best represents your views about abortion? A woman should be able to get an abortion if she wants one in the first three months of pregnancy, no matter what the reason. Abortion should be legal ONLY in certain circumstances, such as when a woman's health is endangered or when the pregnancy results from rape or incest. Abortion should be illegal in all circumstances, even if the mother's life is in danger." (7/31 - 8/4/08)
Always Legal in First 3 Months: 46%
Legal in Certain Circumstances: 40%
Illegal in All Circumstances: 10%
No Answer/ Unsure: 4%
"In general, do you agree or disagree with the 1973 Roe v. Wade Supreme Court decision that established a woman's right to an abortion?" (7/8-13/08)
"Thinking about how the abortion issue might affect your vote for major offices, would you only vote for a candidate who shares your views on abortion, or consider a candidate's position on abortion as just one of many important factors, or not see abortion as a major issue?" (5/8-11/08)
Must share Views: 13%
Views One of Many Factors: 49%
Not a Major Issue: 37%
"There is a type of medical research that involves using special cells, called embryonic stem cells, that might be used in the future to treat or cure many diseases, such as Alzheimer's, Parkinson's, diabetes, and spinal cord injury. It involves using human embryos discarded from fertility clinics that no longer need them. Some people say that using human embryos for research is wrong. Do you favor or oppose using discarded embryos to conduct stem cell research to try to find cures for the diseases I mentioned?" (6/18-25/08)
The moral debate regarding abortion focuses on two distinct issues: (1) whether a human fetus has a right to life, and, if so, (2) whether the rights of the mother ever override the fetus's right. We’ll consider each of these in turn.
Whether a Fetus has a Right to Life
Do fetuses at any stage of pregnancy have a right to life? We all take it for granted that the typical person that we see on the street or bump into in the grocery store has a right to life. But fetuses are not typical people, and the question remains whether they are relevantly similar to typical people so that we can readily recognize that they too have rights to life. Discussions about the fetus's right to life usually draw on the concept of moral personhood. The rights that I have as a typical human being owe to the fact that I am a morally significant person; that is, I have a special moral worth that other people are required to acknowledge. We might think of all morally significant persons as members of a special moral community, where all such persons have moral duties, rights, and in general deserve moral consideration from one another. And membership in the moral community may not be restricted to just typical adult human beings. Objects like rocks, for example, are certainly not moral persons or members of the moral community since they have no special moral worth in and of themselves. But animal rights advocates argue that many higher animals—such as chimpanzees, dolphins, dogs and cats—also have moral personhood. Also, when we think about the possibility of intelligent life elsewhere in the universe, we can envision that many alien life forms could have special moral worth and are moral persons. What is the specific feature of an adult human or chimpanzee or alien that makes it a member of the moral community? That is, what is the criterion of moral personhood? If we find that criterion, then we can see whether fetuses have it too, and thus determine whether they are members of the moral community with special rights.
Over the centuries philosophers and theologians have suggested many possible criteria for personhood. Perhaps it is simply life: if you’re alive, you have moral personhood. This is too generous, though, since it would include plant life, and we’re not typically inclined to think that a stalk of celery has any special rights. Perhaps instead it is animal life. Members of the Jain religion from India believe that all living animals -- even insects -- qualify as persons and thus have a right to life. Jains frequently wear cloths over their mouths to avoid accidentally inhaling bugs, and they sweep paths before themselves to keep from stepping on insects. In our part of the world, though, this also seems rather extreme. Perhaps instead it is consciousness, that is, having sensory experiences and awareness of one’s surroundings. Closely associated with this is the notion of sentience -- the ability to experience pleasure and pain. If consciousness or sentience were the criteria of personhood, then insects would most likely not qualify as persons. But even the criterion of consciousness may be too inclusive, since lower animals such as lizards and chickens are conscious and would thus qualify as morally significant persons.
A narrower criterion of personhood which is widely adopted by contemporary ethicists is the notion of self-awareness, or the ability to conceive of oneself as existing in time. A self-aware being understands that it has a past history, and that the events of its history are relevant to who it is now. It is unlikely that lizards and chickens are self-aware, and thus would not be members of the moral community. However, higher mammals such as dogs and chimpanzees are self-aware so, according to this criterion, they would be included. Yet an even narrower criterion of personhood is human-like-rationality, that is, the kind of rationality that on this planet is exhibited only by humans. Features of human-like-rationality commonly include the ability to develop a complex language, to make complex tools, and to understand the world around us. Critics have attacked this definition, though, since it gives an arbitrary preference for human mental abilities. Studies of chimpanzees and dolphins show that many higher animals do indeed communicate in complicated ways, can make tools for manipulating the environment, and have an understanding of the world. These abilities are not exactly like human abilities, but are nevertheless complex enough to be called "rational."
The precise criterion of moral personhood is an ongoing dispute. But regardless of which criterion we adopt, if a being exhibits the appropriate feature—whether its life, consciousness, self-awareness, or human-like rationality—then it is a moral person and, consequently, a rights holder. Returning to the abortion question, we now ask: does a fetus exhibit any of these qualities during any stages of development from zygote onwards? Even human zygotes are alive, and early stage embryos exhibit animal life. But in our part of the world, mere “animal life” isn’t a criterion of personhood that we adopt. As to consciousness and sentience, during the last trimester of pregnancy fetuses do exhibit these features. But then so do chickens and lizards, and many of us would feel uncomfortable adopting a criterion of personhood that includes these creatures. As to self-awareness and human-like rationality, fetuses do not have these features at any stage of development. Thus, when considering the features that fetuses actually exhibit at various stages of development, they don’t have the ones that most of us would associate with personhood.
However, it may be too picky to require that fetuses in their current state exhibit the relevant criteria of personhood. Two approaches attempt to locate personhood within even the most undeveloped fetuses: the potentiality argument and the biological continuity argument. According to the potentiality argument, fetuses are potentially self-aware and potentially have human-like rationality. While they don’t yet exhibit these features, they are uniquely organized so that, allowing nature to follow its course, they will in time develop them. Their potential self-awareness and rationality thus confers on them moral personhood. Is it enough for fetuses to have these features of personhood potentially? Some say yes, others no. On the yes side, there are times when even adult humans don’t actually exhibit self-awareness and human-like rationality, such as when asleep, or drunk, or completely overwhelmed with emotion. But during those times when higher levels of consciousness defy us, regardless of how long they last, as long as we have them potentially we would want others to recognize our personhood. On the no side, critics argue that the rights you have now do not apply retroactively to you in an earlier stage of your life. When Abraham Lincoln was 20 years old, he was a potential president of the United States, but that didn’t give the 20 year old Lincoln the actual rights that he would later have as a president. Similarly, while a fetus is potentially an adult human, it does not in its actual state have the actual rights right now that it will as an adult. Further, the notion of potentiality leads us down a slippery slope to absurd conclusions. Imagine that at 12:00 noon a human egg and a human sperm are placed together in a laboratory test tube. Letting nature take its course, at 1:00 the sperm swims into the egg and fertilizes it. Assume now that the content of the test tube at 1:00 has personhood because of the zygote’s potential features of self-awareness. By the same reasoning, the contents of the test tube at 12:00 also have personhood insofar as the egg and sperm have the potential features of self-awareness. But this is absurd: even if the egg and sperm have the potential to be a self-aware being, we would not want to ascribe rights to the egg and sperm in this state. Thus, the potentiality argument for fetal personhood is not a slam dunk.
The second approach, the biological continuity argument, holds that no meaningful biological line of distinction can be drawn between embryos and adults that would confer personhood to adults, but not to embryos. On this view, there is no specific point in development of human life that would justify assuming that it becomes a different thing. Conception is the only meaningful point in development that signals the presence of moral worth. At the moment of conception, the organism is a new genome and a new entity capable of its own internally self-directed development. That feature remains the same throughout its entire lifespan. The key problem with the biological continuity argument is that downplays several important developmental junctures along the spectrum from zygote to newborn that seem to be relevant to the moral worth of the fetus. In past centuries—long before the invention of fetal monitoring and ultrasound technology—there were three common points of designation for personhood which anyone, without the aid of medical devices, could recognize. The first was the point at which a fetus takes recognizable human shape. Many philosophers followed Aristotle’s view that it occurred at about 40 days for males and 90 days for females, based on his study of miscarried fetuses. Prior to that point, fetuses do not have rational souls, and thus are not fully human—a position called delayed hominization. The Catholic Church in particular followed Aristotle’s position until the year 1875, when, based on new embryological discoveries, it adopted the position that fetuses gain their souls at the moment that the sperm enters the egg. The second traditional designation of personhood was quickening, where by around week 16-20 a woman could feel the fetus move inside of her. The ability to move is an important feature of animal life, and thus quickening would be the first tangible indication of the presence of a moving and living thing within the woman. The third designation was viability, where by around week 26 the fetus could possibly survive outside the womb if born prematurely. Even without modern medicine, human experience reveals that some premature infants live, while others that are born too soon die. The fact that one can survive outside the womb shows that it has reached the point in development that it is self-sustaining.
With the development of prenatal research and technology in contemporary times, other points of designation for personhood in fetuses have been proposed. There is the emergence of what is called the primitive streak, that is, the earliest structure of the vertebrae column, which designates it as a complex animal life form. There is also the point when the fetus’s internal organs are formed and begin functioning, which designates that the basic parts of its biological systems are in place. With the emergence of the nervous system, there is the capacity to have rudimentary conscious experiences, such as the sensation of pain. While the traditional and more contemporary points of designation differ in some respects, they share a common assumption that personhood emerges when a fetus takes on some important and noticeable human attribute. The various dividing lines are not arbitrary ones, but linked directly with an aspect of human life that we find morally valuable. The weakness of the argument from continuity, then, is that it fails to recognize these important dividing lines, some of which have been recognized by human societies for millennia.
So, do human zygotes, embryos or fetuses have the status of moral persons with a right to life? Considering the various problems surrounding the criteria of personhood, potentiality, and continuity, the answer is not as clear as we would hope. Most people would likely recognize the personhood of fully developed fetuses that can survive outside the womb: if we grant personhood to newborns outside of the womb, it makes sense to also grant this to mature fetuses on the inside of the womb that are essentially indistinguishable from newborns. At the other end of the spectrum, though, it is more difficult to recognize the personhood of a single cell zygote, or a small cluster of embryonic cells that have no discernable animal shape or function.
Balancing the Fetus’s and Mother’s Rights
Even if we all agreed that a fetus has a right to life, the abortion debate would not be over. Questions then arise about whether the mother's right of self-determination overrides the rights of the fetus. It is the mother's body which is affected by the pregnancy, and it is her life, health, and emotional state that may be drastically impacted. These factors carry at least some weight. The most commonly accepted extenuating circumstances concern pregnancies that result from rape and incest, and those in which the woman’s life is at risk. Occasionally, though, some abortion critics take the hard line position that no extenuating circumstance overrides the fetus’s right to life, and thus all abortions are wrong. For example, in 2006 Nicaragua enacted a law banning abortion in all cases, including when a woman's life is endangered, and imposed a six year prison term on those who perform them. The law was heavily influenced by the country’s religious conservatism, which is 85% Roman Catholic. Most people in our country and throughout the rest of the world find this position too extreme and recognize that there are at least some extenuating circumstances that justify abortion.
In a famous article on this subject, titled “A Defense of Abortion” (1971), American philosopher Judith Jarvis Thomson argued that, even if we grant that fetuses have a fundamental right to life, in three specific situations the rights of the mother override the rights of a fetus. She makes her case drawing on three provocative thought experiments. The first pertains to pregnancies that result from rape. Imagine that you wake up one morning and find that you have been kidnapped, taken to a hospital, and a famous violinist has been attached to your circulatory system. You are told that the violinist was ill and, in an emergency decision, you were selected to be the host because only you had the compatible blood-type. The violinist will recover in nine months, but will die if disconnected from you before then. Clearly, Thomson argues, you are not morally required to continue being the host:
Is it morally incumbent on you to accede to this situation? No doubt it would be very nice of you if you did, a great kindness. But do you have to accede to it? What if it were not nine months, but nine years? Or longer still?
This, she believes, parallels the situations where a pregnancy results from rape and where the woman has to spend nine months in bed; thus, by parallel reasoning, the woman would be justified in having an abortion.
The second thought experiment pertains to pregnancies in which the woman’s life is at risk. Imagine that you and a baby are inside a small house; the baby then begins to grow at such an astounding rate that you are at risk of being crushed by it. There is no means of escaping, and the only option you have to save your life is to kill the baby. Thomson argues that you would be justified in killing the infant: “However innocent the child may be, you do not have to wait passively while it crushes you to death.” This does not require that I as a bystander and obligated to help the mother by killing the child, but, Thomson argues, “anyone in a position of authority, with the job of securing people’s rights, both can and should” assist the mother.
The third thought experiment involves pregnancies that result from contraception failure. Imagine that human beings were produced from seeds that blow around and then take root by implanting in the upholstery and carpets within houses. If you don’t want children, you need to keep the seeds from entering your house, such as by installing window and door screens. This, then, is what you do, but it turns out that one of the screens is defective and has a small tear that enables a seed to enter your house and take root. Thomson argues that in this situation you would be justified in uprooting the people-plant since its presence in your house was unintentional and you made a good faith effort to keep it out. It is unreasonable, she maintains, for society to expect you to completely board up your windows and doors – essentially remaining abstinent:
Someone may argue that you are responsible for its rooting, that it does have a right to your house, because after all you could have lived out your life with bare floors and furniture, or with sealed windows and doors. But this won’t do-for by the same token anyone can avoid a pregnancy due to rape by having a hysterectomy, or anyway by never leaving home without a (reliable!) army.
Accordingly, if a set of parents “have taken all reasonable precautions against having a child, they do not simply by virtue of their biological relationship to the child who comes into existence have a special responsibility for it.”
Some of Thomson’s thought experiments may be more compelling than others. Nevertheless, the larger point behind them is that there are many extenuating circumstances surrounding pregnancies in which the rights and interests of the woman may outweigh the rights of the fetus, even if we grant that the fetus has personhood.
PUBLIC POLICY ISSUES
Some moral issues spill over into the political arena, and in many ways take on a life of their own, creating an ever-expanding set of controversies. That is especially so with the abortion issue. Countries around the world take different stances on the personhood status of fetuses and the permissibility of abortions. On the liberal side, in 2004, the European Court of Human Rights – Europe’s highest court to decide such issues – rejected an appeal to grant full human rights to fetuses. The Court concluded that “it was neither desirable, nor even possible ... to answer in the abstract the question whether the unborn child was a person.” On the conservative side, Muslim law grants fetuses the status of “incomplete persons” (i.e., “zimma”), which means that it has rights, but is not capable of performing duties. In the U.S., the legal status of abortion at various stages of pregnancy was established in the Supreme Court case Roe v. Wade.
Supreme Court Decisions on Abortion
For most of U.S. history, abortion was governed by the laws of individual states. Some states were conservative and permitted abortion only in a few extenuating circumstances, such as whether the woman’s life was at risk. Others were more liberal and took into account the woman’s psychological condition. All that changed in 1973 with the landmark Supreme Court ruling Roe v. Wade, which established the Constitutional right of women to have abortions, depending on which stage of pregnancy they are in. During the first trimester, women can have abortions as they so choose without interference from their State government. During the second trimester, States can restrict abortion, but only if an abortion procedure poses a special health risk to the woman; the status of the fetus is not a consideration. During the third trimester, States can restrict abortions as they see fit in the interest of protecting the potential life of the fetus, as long as there is an exception to preserve the life and health of the woman. The Court’s decision was based on four basic points. First, throughout most of Western Civilization, laws regarding abortion were at least somewhat liberal. Second, the Constitution includes a right to privacy, which extends to women’s control over their bodies. On this issue Court writes,
The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as . . . 1891, the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. . . . This right of privacy . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. [majority opinion, Roe v. Wade, 1973]
Third, fetuses do not have a legal status as “persons.” Fourth, the status of a fetus becomes significant only when it becomes viable at the beginning of the third trimester. The Court writes, “With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb” (ibid).
When the Supreme Court heard their next major abortion case almost 20 years later, in the case Planned Parenthood vs. Casey (1992), they reaffirmed the central components of Roe. That is, they recognized “the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State”. Although they downplay the phrase “the right to privacy,” which was so central in Rowe, the rationale is fundamentally the same: abortion is an intimately personal matter for the woman that should not be decided by the state
Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. . . . These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State. [majority decision, Planned Parenthood vs. Casey (1992)]
But the Casey ruling did states to place some restrictions on access to abortion, so long as it does not place an undue burden or “substantial obstacle” in the woman’s pursuit of an abortion. Specifically, it permits states to impose a 24 hour waiting period and a requirement for parental consent for women under 18 years of age seeking abortions.
Although the Justices in Casey reached a decision, the Court was heavily divided. Justice Antonin Scalia criticized the original Roe decision for having elevated the abortion controversy to the national level where it is more difficult to resolve than would be if left to each state to decide the issue for itself. “National politics,” he writes, “were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress, before Roe v. Wade was decided.” The Roe decision “destroyed the compromises of the past, rendered compromise impossible for the future, and required the entire issue to be resolved uniformly, at the national level.” It also has forced the Supreme Court itself to be umpires in the abortion business. However, Justice Harry Blackman, who authored the original Roe majority opinion, attacked Scalia for being “uncharacteristically naive” for thinking the abortion issue would be more peacefully resolved if left to each state to decide for itself. He writes, “state efforts to regulate and prohibit abortion in a post-Roe world undoubtedly would raise a host of distinct and important constitutional questions” that would ultimately need to be resolved by the Supreme Court.
Conservative critics of the Roe and Casey decisions have regularly sought for ways to reverse it or at least reduce its effects. One effort has been to get more conservative justices on the Supreme Court who would revisit the issue and rule differently. While the Court’s ideology has shifted in the conservative direction in the decades since Roe they’ve yet to overturn its basic position. Perhaps one reason for this, as some have speculated, is because the justices do not want to go down in history as radically redirecting a now well-established foundation of Constitutional law. Another conservative strategy has been to get Congress to enact a “Human Life Amendment” to the Constitution that would establish the legal personhood of fetuses from the moment of conception. Some versions seek an amendment that simply maintains that abortion is not a Constitutionally protected right, and that individual states have the power to regulate abortion for themselves. While versions of the bill are proposed every few years, none has been successful, and advocates themselves are doubtful that such a bill will ever become law. Yet another strategy has been to have states enact laws that would severely curtail the operation of abortion clinics within their jurisdiction, particularly by imposing more severe and costly requirements on such clinics than are mandated with other medical practices. These have been nicknamed “TRAP laws”, an acronym for “Targeted Regulation of Abortion Providers.” For example, some states require that the building construction of abortion clinics meet the exceptionally high standards of ambulatory surgical centers (including special regulations about the width of halls and doorways), which is a standard that typical doctors’ offices or outpatient clinics do not even meet.
Still another strategy involves passing laws that require physicians to provide a woman seeking an abortion with physical details about their fetus’s development—and thereby discourage her from following through on her abortion plans. A South Dakota law requires physicians to tell the woman that abortion ends a human life. An Oklahoma law required women seeing an abortion to receive an ultrasound and a physician’s description of the fetus; this law, however, was later overturned as unconstitutional. Similarly, a “fetal pain” bill was proposed before the U.S. Congress that would require health care providers to read an informed consent statement to such women, notifying them that fetuses of a specific age can feel pain and that anesthesia for the fetus is available. Scientists are divided about the age at which a fetus can experience pain, but the average estimate is at around 25 weeks, about the middle of the second trimester. The bill has not yet passed.
ARGUMENTS PRO AND CONTRA
The Conservative Position
It is convenient to depict the abortion controversy as a debate between conservative and liberal sides of the issue. We’ll briefly consider the strengths and weaknesses of the two sides. Generally speaking the conservative stance on abortion is that moral personhood begins at conception, and only in rare situations do the woman’s rights outweigh those of the fetus. As such, abortion is never justifiable except perhaps in cases of rape, incest, and when the mother’s life is at risk. Here are some of the more common arguments given in support of the conservative position.
1. The wrongness of intentional killing: abortion is the intentional killing of a potential person, and, except in rare situations, intentional killing is morally wrong. This is perhaps the strongest argument from the conservative side, particularly since it draws on a fundamental conception of all civilized societies that intentional killing is wrong. There are two main criticism of this argument. First, it presumes that the fetus has personhood at all stages of development, which, as we’ve seen above, is a matter of debate. Second, it sidesteps the issue of when intentional killing is justified. Societies typically permit intentional killing in cases of self-defense, war, capital punishment, and perhaps euthanasia. There may be at least some situations in which similar justifications apply to abortion.
2. The responsibility to protect the innocent: the fetus is an innocent being which cannot speak for its own interests, and, thus, society must actively defend the fetus’s interests. Again, the notion of defending the innocent is an important value in society. Criticisms here, though, are the same as with the previous argument. If a fetus does not have moral personhood, then it is technically not an innocent being in the moral sense of the term. Second, even if it is an innocent being, there are extenuating circumstances in which killing innocent people may be justified, such as civilian casualties in war and euthanasia.
3. Religious tradition: religious scriptures and traditions suggest that personhood begins at the moment of conception and that abortion is wrong. Much of the force behind the conservative view of abortion comes from religious tradition, perhaps more so than from the above two arguments which are more secular in nature. The strength of this argument is that religious traditions have been major sources of values in most societies throughout history, and such traditions have a built in authority. A criticism of this, though, is that religious traditions vary greatly, and have often supported values that today we reject, such as sexism, racism, and even slavery. Further, they are stipulated as truths which believers accept through faith, often without rational inquiry. While religious believers are entitled to submit to the authority of their tradition, it is less clear that people from other traditions should be compelled to accept that authority.
4. Women need to take responsibility: sexual activity has serious consequences, and women who choose to be sexually active assume the duty of bringing their fetuses to term if they become pregnant. Many of life’s activities involve taking risks, such as with dangerous sports, risky business ventures, and financial investments. In each of these cases we know the rules: we take our chances with the hope of some benefit, but we accept the consequences when things don’t turn out as planned. Sexual activity is no exception to this. A criticism of this argument is that, even with risky activities that we engage in, society does not abandon us to our misfortunes. Injured athletes are hospitalized, bankruptcy laws assist us with failed business ventures. In at least some circumstances, abortion may be a reasonable safety net for women facing unwanted pregnancies.
The Liberal Position
The liberal position on the abortion issue is that moral personhood begins in later stages of fetal development, and the woman’s rights override those of the fetus’s in many situations. As such, abortion is always justified in early stages of pregnancy, and also in later stages when the mother’s life or psychological well being is at risk. Here are four common arguments for the liberal position.
1. The woman’s right to bodily autonomy. Women have the right to control their bodies, and this applies to the effects that pregnancy has on them. This is the strongest argument from the liberal side and it draws on a centuries-old conviction that people are entitled to a zone of freedom, which includes decisions about what happens to our bodies. A criticism of this argument is that all freedom has limits, and we do not grant free reign to people over their bodies. I’m not entitled to cut out and sell my kidney on Ebay, just because it’s mine. More significantly, I don’t have free reign over my body when other people may be adversely impacted by what I do. I can’t, for example, wander into someone else’s house just because I feel like it. Most liberals agree that at some stage in fetal development the fetus obtains personhood – or at least potential personhood. At that point the interest of the fetus must be taken into account, and it might even override the interests of the woman.
2. The psychological impact of unwanted pregnancies: Many pregnancies can have long-term negative psychological impacts on women, and women have a right to be protected from such effects. The negative psychological impact of pregnancy from rape, for example, is especially great and many conservatives recognize this as an extenuating circumstance that justifies abortion. Defenders of abortion also note the sometimes devastating economic consequences that an unwanted pregnancy can have on a woman when she is without a family support system. Sometimes her entire educational and career path may be permanently derailed. A criticism of this argument is that it is hard to accurately gage the level of psychological trauma that a woman might experience from an unwanted pregnancy, particularly over the long term. A pregnant woman might overreact about how having a baby might affect her, and there’s no clear way to confirm or disconfirm her worry in advance. Further, this opens the door to justifying an abortion virtually anytime a woman expresses worries about the long term effects of having a baby, whether those worries are real or not.
3. The social impact of unwanted pregnancies: Unwanted children can have a negative impact on society as a whole, such as by increasing crime and contributing to overpopulation. One study suggested that crime in the United States dramatically decreased in the decades following the legalization of abortion in the early 1970s. A criticism of this argument is that similar reasoning could be used to justify rounding up and killing socially undesirable people within our cities. For example, it is reported that death squads in Rio de Janeiro have killed thousands of vagrant children who roam the streets, harass its citizens, and harm the tourist industry. Clearly such a social policy is unjustified for violating the children’s rights to life, regardless of the harm they cause to society. Similarly, even if unwanted pregnancies adversely affect society through crime and overpopulation, this may not override a fetus’s right to life if it has moral personhood.
4. The danger of self-induced abortions: women who are desperate to terminate their pregnancies will often do so by unsafe means if no legal means are available. This position is exemplified by an activist Dutch organization called “The Women on Waves Foundation,” which created a floating abortion clinic and sailed to countries like Ireland and Poland where abortions are difficult to obtain. The foundation maintains that a woman dies every five minutes somewhere in the world because of an illegal or unsafe abortion. Some methods of self-induced abortion include attempting to remove the fetus with an object such as a metal coat hanger or knitting needle, intentionally injuring their abdomens to bring on a miscarriage, or taking high doses of drugs that are rumored to bring on miscarriages. A criticism of this argument is that there are other possible ways to reduce self-induced abortions besides legalizing all abortions on demand. Better social services for pregnant women, increased contraception use, and wider availability of the morning after pill might also effectively address the problem.
A Middle Ground
While it may be impossible to construct a middle-ground social policy on abortion that all people can agree upon in each of the particulars, there are nevertheless a cluster of issues that might be at the heart of a centrist position. First, even the liberal side recognizes that abortion should not be the first choice of how to deal with an unwanted pregnancy, and, when possible, the numbers of abortions should be reduced. Parenting classes and economic assistance might help some women make the transition to motherhood. Adoption services are also a good option, although both sides agree that it is wrong to coerce pregnant women into adoption, thus treating them like baby machines. Second, generally speaking, the more developed the fetus is, the more morally controversial the abortion is. Abortions within the first few weeks of pregnancy, before the embryo takes on shape and biological function, are less problematic. At the other end of the timeline, fetuses within the third trimester are functionally indistinguishable from newborns, which most liberals recognize. The real battleground is within the second trimester, while the fetus has human form and biological function, but cannot survive outside the womb. In the interest of political harmony, some conservatives might be willing to compromise on social policies that permit early first trimester abortions, while some liberals might be willing to compromise when it comes to policies that restrict abortions within the second trimester. Third, there is some middle ground when it comes to recognizing extenuating circumstances that might justify an abortion—the most commonly recognized ones being rape, incest, and risk to the woman’s life. Concerns about the psychological wellbeing of the woman are more controversial, but even here a middle ground might be found somewhere within the first trimester.
THE LEGAL RIGHT TO ABORTION: ROE V. WADE
Harry Blackman and Byron White
The current legal status of abortion in the U.S. was set by the 1973 Supreme Court decision, Roe v. Wade, which held that women have a right to abortion during the first trimester of pregnancy and governments cannot interfere with this. The episode began in Texas, whose state laws prohibit physicians from performing abortions except to protect the life of a woman. While other states at the time held that abortions could also be performed to protect the “health” of the woman, Texas law did not include this. In 1970 an unmarried pregnant woman named Norma L. McCorvey — under the pseudonym “Jane Roe” — challenged the Texas law on behalf of other pregnant women in that state. The case made its way to the U.S. Supreme Court where, in a 7-2 vote, the Justices struck down the Texas law. Selections are included below from the majority opinion of the Court, delivered by Justice Harry Blackman, and Justice Byron White’s dissenting opinion.
Blackman’s majority opinion is a lengthy document that addresses many issues connected with the abortion controversy: the history of abortion in Western civilization, the legal and moral status of fetuses, and the rights of women. After sketching the history of abortion from ancient Greece to the time of the court case, Blackman concluded that strict anti-abortion laws were a recent phenomenon that emerged in the late 19th century. Prior to that, abortions were readily permitted before “quickening” that is, when the fetus is formed and can move. English common law set this at 40 days for a male and 80 days for a female. Even with abortions after quickening, the stipulated penalties were comparatively light. In the late 19th century, states dropped the distinction between pre and post quickening, and by late the 1950s, most states banned abortion except when done save the life of the mother.
Turning to the legal issue, Blackman took a middle ground between two more extreme positions on the legality of abortion. The extreme anti-abortion side is that the fetus is a legal person from the moment of conception, and abortion is not permissible unless the mother’s life is in danger. By contrast, the extreme pro-abortion side is that the fetus is not a person throughout pregnancy, and a woman can opt for an abortion as a matter her right to privacy. Blackman’s middle ground position recognizes the woman’s Constitutional right to privacy and, accordingly, the right to an abortion. However, it also acknowledges that after a “compelling point” in fetal development, States balance the right rights of the woman against the potential life of the fetus and thus regulate abortion. That “compelling point” is viability—the ability of a fetus to survive outside the womb, at around six months. The guidelines for State regulation of abortion are in three tiers. First, states cannot restrict abortion prior to the first trimester of pregnancy, since the risk to the woman’s life is lower at the same level or lower than the rates for normal childbirth. Second, states can regulate abortions during the second trimester only to protect the woman’s safety. Third, states can restrict abortion after the third trimester when the point of viability is reached, in the interest of protecting the potential life of the fetus.
In his dissenting opinion, Justice Byron White objected that, contrary to the majority opinion, there is no Constitutional justification for a woman’s right to an abortion. Further, he argued, it should be left to the individual States to determine for themselves how to best balance the interests of the mother against those of the fetus.
We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion.
In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem.
Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection. We seek earnestly to do this, and, because we do, we have inquired into, and in this opinion place some emphasis upon, medical and medical-legal history and what that history reveals about man’s attitudes toward the abortion procedure over the centuries. . . .
[HISTORY OF ANTI-ABORTION LAWS]
[From Ancient Greece to the 20th Century]
It perhaps is not generally appreciated that the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage. Those laws, generally proscribing abortion or its attempt at any time during pregnancy except when necessary to preserve the pregnant woman’s life, are not of ancient or even of common-law origin. Instead, they derive from statutory changes effected, for the most part, in the latter half of the 19th century.
Ancient attitudes. These are not capable of precise determination. We are told that at the time of the Persian Empire abortifacients were known and that criminal abortions were severely punished. We are also told, however, that abortion was practiced in Greek times as well as in the Roman Era, and that “it was resorted to without scruple.” The Ephesian, Soranos, often described as the greatest of the ancient gynecologists, appears to have been generally opposed to Rome’s prevailing free-abortion practices. He found it necessary to think first of the life of the mother, and he resorted to abortion when, upon this standard, he felt the procedure advisable. Greek and Roman law afforded little protection to the unborn. If abortion was prosecuted in some places, it seems to have been based on a concept of a violation of the father’s right to his offspring. Ancient religion did not bar abortion.
The Hippocratic Oath. What then of the famous Oath that has stood so long as the ethical guide of the medical profession and that bears the name of the great Greek (460?-377? B.C.), who has been described as the Father of Medicine, the “wisest and the greatest practitioner of his art,” and the “most important and most complete medical personality of antiquity,” who dominated the medical schools of his time, and who typified the sum of the medical knowledge of the past? The Oath varies somewhat according to the particular translation, but in any translation the content is clear: “I will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner I will not give to a woman a pessary to produce abortion,” or “I will neither give a deadly drug to anybody if asked for it, nor will I make a suggestion to this effect. Similarly, I will not give to a woman an abortive remedy.” . . . Dr. Edelstein then concludes that the Oath originated in a group representing only a small segment of Greek opinion and that it certainly was not accepted by all ancient physicians. . . . This, it seems to us, is a satisfactory and acceptable explanation of the Hippocratic Oath’s apparent rigidity. It enables us to understand, in historical context, a long-accepted and revered statement of medical ethics.
The common law. It is undisputed that at common law, abortion performed before “quickening” -- the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy -- was not an indictable offense. The absence of a common-law crime for pre-quickening abortion appears to have developed from a confluence of earlier philosophical, theological, and civil and canon law concepts of when life begins. These disciplines variously approached the question in terms of the point at which the embryo or fetus became “formed” or recognizably human, or in terms of when a “person” came into being, that is, infused with a “soul” or “animated.” A loose consensus evolved in early English law that these events occurred at some point between conception and live birth. This was “mediate animation.” Although Christian theology and the canon law came to fix the point of animation at 40 days for a male and 80 days for a female, a view that persisted until the 19th century, there was otherwise little agreement about the precise time of formation or animation. There was agreement, however, that prior to this point the fetus was to be regarded as part of the mother, and its destruction, therefore, was not homicide. Due to continued uncertainty about the precise time when animation occurred, to the lack of any empirical basis for the 40-80-day view, and perhaps to Aquinas’ definition of movement as one of the two first principles of life, Bracton focused upon quickening as the critical point. The significance of quickening was echoed by later common-law scholars and found its way into the received common law in this country. . . . [It is] doubtful that abortion was ever firmly established as a common-law crime even with respect to the destruction of a quick fetus.
The English statutory law. England’s first criminal abortion statute . . . came in 1803. It made abortion of a quick fetus, (1) a capital crime, but in (2) it provided lesser penalties for the felony of abortion before quickening, and thus preserved the “quickening” distinction. . . . Recently, Parliament enacted a new abortion law. This is the Abortion Act of 1967 . . . [which] permits a licensed physician to perform an abortion where two other licensed physicians agree (a) “that the continuance of the pregnancy would involve risk to the life of the pregnant woman, or of injury to the physical or mental health of the pregnant woman or any existing children of her family, greater than if the pregnancy were terminated,” or (b) “that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.” The Act also provides that, in making this determination, “account may be taken of the pregnant woman’s actual or reasonably foreseeable environment.” It also permits a physician, without the concurrence of others, to terminate a pregnancy where he is of the good-faith opinion that the abortion “is immediately necessary to save the life or to prevent grave permanent injury to the physical or mental health of the pregnant woman.”
The American law. In this country, the law in effect in all but a few States until mid-19th century was the pre-existing English common law. Connecticut, the first State to enact abortion legislation, adopted in 1821 that part of Lord Ellenborough’s Act that related to a woman “quick with child.” The death penalty was not imposed. Abortion before quickening was made a crime in that State only in 1860. In 1828, New York enacted legislation 31 that, in two respects, was to serve as a model for early anti-abortion statutes. First, while barring destruction of an unquickened fetus as well as a quick fetus, it made the former only a misdemeanor, but the latter second-degree manslaughter. Second, it incorporated a concept of therapeutic abortion by providing that an abortion was excused if it “shall have been necessary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such purpose.” By 1840, when Texas had received the common law, only eight American States had statutes dealing with abortion. It was not until after the War Between the States that legislation began generally to replace the common law. Most of these initial statutes dealt severely with abortion after quickening but were lenient with it before quickening. Most punished attempts equally with completed abortions. While many statutes included the exception for an abortion thought by one or more physicians to be necessary to save the mother’s life, that provision soon disappeared and the typical law required that the procedure actually be necessary for that purpose.
Gradually, in the middle and late 19th century the quickening distinction disappeared from the statutory law of most States and the degree of the offense and the penalties were increased. By the end of the 1950’s, a large majority of the jurisdictions banned abortion, however and whenever performed, unless done to save or preserve the life of the mother. The exceptions, Alabama and the District of Columbia, permitted abortion to preserve the mother’s health. Three States permitted abortions that were not “unlawfully” performed or that were not “without lawful justification,” leaving interpretation of those standards to the courts. In the past several years, however, a trend toward liberalization of abortion statutes has resulted in adoption, by about one-third of the States, of less stringent laws . . .
It is thus apparent that at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the opportunity to make this choice was present in this country well into the 19th century. Even later, the law continued for some time to treat less punitively an abortion procured in early pregnancy.
The position of the American Medical Association. The anti-abortion mood prevalent in this country in the late 19th century was shared by the medical profession. Indeed, the attitude of the profession may have played a significant role in the enactment of stringent criminal abortion legislation during that period. . . . Except for periodic condemnation of the criminal abortionist, no further formal AMA action [since its 1871 report on the subject] took place until 1967. In that year, the Committee on Human Reproduction urged the adoption of a stated policy of opposition to induced abortion, except when there is “documented medical evidence” of a threat to the health or life of the mother, or that the child “may be born with incapacitating physical deformity or mental deficiency,” or that a pregnancy “resulting from legally established statutory or forcible rape or incest may constitute a threat to the mental or physical health of the patient” . . . . In 1970, after the introduction of a variety of proposed resolutions, and of a report from its Board of Trustees, a reference committee noted “polarization of the medical profession on this controversial issue”; division among those who had testified; a difference of opinion among AMA councils and committees; “the remarkable shift in testimony” in six months, felt to be influenced “by the rapid changes in state laws and by the judicial decisions which tend to make abortion more freely available;” and a feeling “that this trend will continue.” . . .
[Reasons for Criminalization of Abortion in the 19th Century]
Three reasons have been advanced to explain historically the enactment of criminal abortion laws in the 19th century and to justify their continued existence.
It has been argued occasionally that these laws were the product of a Victorian social concern to discourage illicit sexual conduct. Texas, however, does not advance this justification in the present case, and it appears that no court or commentator has taken the argument seriously. The appellants and amici contend, moreover, that this is not a proper state purpose at all and suggest that, if it were, the Texas statutes are overbroad in protecting it since the law fails to distinguish between married and unwed mothers.
A second reason is concerned with abortion as a medical procedure. When most criminal abortion laws were first enacted, the procedure was a hazardous one for the woman. This was particularly true prior to the development of antisepsis. Antiseptic techniques, of course, were based on discoveries by Lister, Pasteur, and others first announced in 1867, but were not generally accepted and employed until about the turn of the century. Abortion mortality was high. Even after 1900, and perhaps until as late as the development of antibiotics in the 1940’s, standard modern techniques such as dilation and curettage were not nearly so safe as they are today. Thus, it has been argued that a State’s real concern in enacting a criminal abortion law was to protect the pregnant woman, that is, to restrain her from submitting to a procedure that placed her life in serious jeopardy.
Modern medical techniques have altered this situation. Appellants and various amici refer to medical data indicating that abortion in early pregnancy, that is, prior to the end of the first trimester, although not without its risk, is now relatively safe. Mortality rates for women undergoing early abortions, where the procedure is legal, appear to be as low as or lower than the rates for normal childbirth. Consequently, any interest of the State in protecting the woman from an inherently hazardous procedure, except when it would be equally dangerous for her to forgo it, has largely disappeared. Of course, important state interests in the areas of health and medical standards do remain. The State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient. This interest obviously extends at least to the performing physician and his staff, to the facilities involved, to the availability of after-care, and to adequate provision for any complication or emergency that might arise. The prevalence of high mortality rates at illegal “abortion mills” strengthens, rather than weakens, the State’s interest in regulating the conditions under which abortions are performed. Moreover, the risk to the woman increases as her pregnancy continues. Thus, the State retains a definite interest in protecting the woman’s own health and safety when an abortion is proposed at a late stage of pregnancy.
The third reason is the State’s interest -- some phrase it in terms of duty -- in protecting prenatal life. Some of the argument for this justification rests on the theory that a new human life is present from the moment of conception. The State’s interest and general obligation to protect life then extends, it is argued, to prenatal life. Only when the life of the pregnant mother herself is at stake, balanced against the life she carries within her, should the interest of the embryo or fetus not prevail. Logically, of course, a legitimate state interest in this area need not stand or fall on acceptance of the belief that life begins at conception or at some other point prior to live birth. In assessing the State’s interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone.
Parties challenging state abortion laws have sharply disputed in some courts the contention that a purpose of these laws, when enacted, was to protect prenatal life. Pointing to the absence of legislative history to support the contention, they claim that most state laws were designed solely to protect the woman. Because medical advances have lessened this concern, at least with respect to abortion in early pregnancy, they argue that with respect to such abortions the laws can no longer be justified by any state interest. There is some scholarly support for this view of original purpose. The few state courts called upon to interpret their laws in the late 19th and early 20th centuries did focus on the State’s interest in protecting the woman’s health rather than in preserving the embryo and fetus. Proponents of this view point out that in many States, including Texas, by statute or judicial interpretation, the pregnant woman herself could not be prosecuted for self-abortion or for cooperating in an abortion performed upon her by another. They claim that adoption of the “quickening” distinction through received common law and state statutes tacitly recognizes the greater health hazards inherent in late abortion and impliedly repudiates the theory that life begins at conception.
It is with these interests, and the weight to be attached to them, that this case is concerned.
[The Right to Privacy]
The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as . . . 1891, the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. . . .
This right of privacy . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.
On the basis of elements such as these, appellant and some amici argue that the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. . . . As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute.
We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation. . . . .
[Legal Personhood and Fetuses]
Appellant, as has been indicated, claims an absolute right that bars any state imposition of criminal penalties in the area. Appellee argues that the State’s determination to recognize and protect prenatal life from and after conception constitutes a compelling state interest. As noted above, we do not agree fully with either formulation.
The appellee and certain amici argue that the fetus is a “person” within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument. On the other hand, the appellee conceded on reargument that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.
The Constitution does not define “person” in so many words. Section 1 of the Fourteenth Amendment contains three references to “person.” The first, in defining “citizens,” speaks of “persons born or naturalized in the United States.” The word also appears both in the Due Process Clause and in the Equal Protection Clause. “Person” is used in other places in the Constitution: in the listing of qualifications for Representatives and Senators . . . But in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible pre-natal application.
All this, together with our observation, supra, that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word “person,” as used in the Fourteenth Amendment, does not include the unborn.
This conclusion, however, does not of itself fully answer the contentions raised by Texas, and we pass on to other considerations.
[DIFFERING VIEWS OF WHEN LIFE BEGINS]
The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus, if one accepts the medical definitions of the developing young in the human uterus. . . . As we have intimated above, it is reasonable and appropriate for a State to decide that at some point in time another interest, that of health of the mother or that of potential human life, becomes significantly involved. The woman’s privacy is no longer sole and any right of privacy she possesses must be measured accordingly.
Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.
It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question. There has always been strong support for the view that life does not begin until live birth. This was the belief of the Stoics. It appears to be the predominant, though not the unanimous, attitude of the Jewish faith. It may be taken to represent also the position of a large segment of the Protestant community, insofar as that can be ascertained; organized groups that have taken a formal position on the abortion issue have generally regarded abortion as a matter for the conscience of the individual and her family. As we have noted, the common law found greater significance in quickening. Physicians and their scientific colleagues have regarded that event with less interest and have tended to focus either upon conception, upon live birth, or upon the interim point at which the fetus becomes “viable,” that is, potentially able to live outside the mother’s womb, albeit with artificial aid. Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks. The Aristotelian theory of “mediate animation,” that held sway throughout the Middle Ages and the Renaissance in Europe, continued to be official Roman Catholic dogma until the 19th century, despite opposition to this “ensoulment” theory from those in the Church who would recognize the existence of life from the moment of conception. The latter is now, of course, the official belief of the Catholic Church. As one brief amicus discloses, this is a view strongly held by many non-Catholics as well, and by many physicians. Substantial problems for precise definition of this view are posed, however, by new embryological data that purport to indicate that conception is a “process” over time, rather than an event, and by new medical techniques such as menstrual extraction, the “morning-after” pill, implantation of embryos, artificial insemination, and even artificial wombs.
In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon live birth. For example, the traditional rule of tort law denied recovery for prenatal injuries even though the child was born alive. That rule has been changed in almost every jurisdiction. In most States, recovery is said to be permitted only if the fetus was viable, or at least quick, when the injuries were sustained, though few courts have squarely so held. In a recent development, generally opposed by the commentators, some States permit the parents of a stillborn child to maintain an action for wrongful death because of prenatal injuries. Such an action, however, would appear to be one to vindicate the parents’ interest and is thus consistent with the view that the fetus, at most, represents only the potentiality of life. Similarly, unborn children have been recognized as acquiring rights or interests by way of inheritance or other devolution of property, and have been represented by guardians ad litem. Perfection of the interests involved, again, has generally been contingent upon live birth. In short, the unborn have never been recognized in the law as persons in the whole sense.
In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake. We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a nonresident who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes “compelling.”
[ALLOWABLE GOVERNMENT RESTRICTIONS OF ABORTION]
[First and Second Trimester Abortions and the Mother’s Health]
With respect to the State’s important and legitimate interest in the health of the mother, the “compelling” point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established medical fact, referred to above at 149, that until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like.
This means, on the other hand, that, for the period of pregnancy prior to this “compelling” point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State.
[Third Trimester Abortions and Viability]
With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.
[Conclusion and Summary]
Measured against these standards, Art. 1196 of the Texas Penal Code, in restricting legal abortions to those “procured or attempted by medical advice for the purpose of saving the life of the mother,” sweeps too broadly. The statute makes no distinction between abortions performed early in pregnancy and those performed later, and it limits to a single reason, “saving” the mother’s life, the legal justification for the procedure. The statute, therefore, cannot survive the constitutional attack made upon it here.
This conclusion makes it unnecessary for us to consider the additional challenge to the Texas statute asserted on grounds of vagueness. . . .
To summarize and to repeat:
A state criminal abortion statute of the current Texas type, that excepts from criminality only a lifesaving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.
(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.
. . .
This holding, we feel, is consistent with the relative weights of the respective interests involved, with the lessons and examples of medical and legal history, with the lenity of the common law, and with the demands of the profound problems of the present day. The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests. The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention. Up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician. If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional, are available.
[JUSTICE BYRON WHITE: DISSENTING OPINION]
At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons -- convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that, for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure.
The Court, for the most part, sustains this position: during the period prior to the time the fetus becomes viable, the Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus; the Constitution, therefore, guarantees the right to an abortion as against any state law or policy seeking to protect the fetus from an abortion not prompted by more compelling reasons of the mother.
With all due respect, I dissent. I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally dissentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.
The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. Whether or not I might agree with that marshaling of values, I can in no event join the Court’s judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States. In a sensitive area such as this, involving as it does issues over which reasonable men may easily and heatedly differ, I cannot accept the Court’s exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it. This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs.
It is my view, therefore, that the Texas statute is not constitutionally infirm because it denies abortions to those who seek to serve only their convenience, rather than to protect their life or health. Nor is this plaintiff, who claims no threat to her mental or physical health, entitled to assert the possible rights of those women whose pregnancy assertedly implicates their health. . . .
Source: U.S. Supreme Court, Roe v. Wade (1973). Notes have been removed (see www.gpoaccess.gov/chearings for complete text).
QUESTIONS FOR REVIEW
Please answer all of the following questions for review.
1. Explain the terms “zygote,” “embryo,” “fetus,” “quickening,” and “viability.”
2. What are the main abortion methods?
3. What does the term “moral personhood” mean?
4. What are some possible criteria of moral personhood, and which, if any, do fetuses actually exhibit?
5. What is the potentiality argument for the personhood of fetuses?
6. What is the biological continuity argument for the personhood of fetuses?
7. Assuming that a fetus has a right to life, when, according to Thomson, might the fetus’s right be overridden?
8. What are some of efforts to counter act the Roe v. Wade decision?
9. What are the criticisms of the four conservative arguments against abortion?
10. What are the criticisms of the four liberal arguments in favor of abortion?
11. What are some middle ground policies that society might accept regarding abortion?
[Roe v. Wade]
12. Describe the English common law view of abortion, which was held in the U.S. until the mid 19th century.
13. What are the three reasons given for the criminalization of abortion in the 19th century?
14. What are some of the differing views of when life begins, and what view does the court take?
15. What is the court’s view of abortion regulation during each of the three trimesters of pregnancy?
16. On what grounds does Justice White object to the majority decision?
QUESTIONS FOR ANALYSIS
Please select only one question for analysis from those below and answer it.
1. Criticize one of Thomson’s thought experiments regarding situations that might override a fetus’s right to life.
2. Defend or refute the potentiality argument or the biological continuity argument for the personhood of fetuses.
3. Defend the one of the conservative attacks abortion against the criticism indicated in the reading regarding it.
4. Defend the one of the liberal arguments for abortion against the criticism indicated in the reading regarding it.
[Roe v. Wade]
5. The majority decision places a lot of weight on the fact that strict abortion laws emerged only recently in the late 19th century. Is this historical argument for abortion rights convincing? Explain.
6. Discuss how the right to privacy might apply to a woman’s right to abortion.
7. The majority opinion states that the potential life of the fetus becomes compelling only at the point of viability (i.e., the third trimester). Discuss the Court’s rationale for this view and whether you agree.
8. Explain Justice White’s reasoning in the second to the last paragraph of his dissenting opinion (“The Court apparently values the convenience. . . .”