From Applied Ethics: A Sourcebook
1. Classic Philosophers on Abortion — Aristotle, Tertullian, Augustine and Aquinas
2. Supreme Court Cases on Abortion — Roe v. Wade; Planned Parenthood v. Casey
3. Embryonic Personhood and Biological Continuity — Leon R. Kass and the President's Council on Bioethics
4. Fetal Pain: Pro and Contra — Jean A. Wright and Arthur Caplan
CLASSIC PHILOSOPHERS ON ABORTION
Aristotle, Tertullian, Augustine and Aquinas
Until around the mid-nineteenth century, philosophical conceptions of abortion were influenced in part by ancient views of fetal development, specifically those of the Greek philosopher Aristotle (384–322 BCE). Aristotle held to a position now called delayed hominization: human fetuses only gradually acquire their souls, and in the early stages of pregnancy the fetus is not fully human. Before acquiring a full human soul, he argues, the fetus must first develop into the right form and shape. In the selection below, Aristotle explains that, by carefully examining miscarried fetuses, it is evident that male fetuses acquire their basic form at around day 40, and female ones day 90. In his book Politics, he briefly discusses infanticide and abortion. Deformed children should not be permitted to live, but instead be “exposed”, that is, abandoned in open areas and allowed to die. Some countries have population limits, when parents go above the allotted number, the excess children should not be killed through exposure, but, instead, they should be aborted before sensation and life have begun.
Medieval Italian philosopher Thomas Aquinas (1225–1274) followed Aristotle’s view of delayed hominization and the forty/ninety day time frames for human ensoulment (Commentary on the Sentences, Bk. 3.3). In the selection below, from Summa Theologica, Aquinas describes the process by which a fetus acquires a distinctly human soul. Again following Aristotle, Aquinas held that there are three levels to the human soul: the vegetative soul, the sensitive soul, and the intellectual soul. Human fetuses at first have only the vegetative soul, which allows it to take in nutrition. For Aquinas, the fetus gets this directly from the father’s semen, which follows the natural mechanism by which life produces more life. Next, the fetus develops a sensitive soul, which allows it to have sensations. Finally, through a special act of creation, God implants the intellectual soul in the fetus, which supersedes and perfects the previous two souls. The intellectual soul is what makes the fetus human, and, while Aquinas does not say this directly, the implication is that one does not kill a human by aborting a fetus prior to the point at which it obtains the intellectual soul.
ARISTOTLE: FETAL DEVELOMENT AND ABORTION
Fetal Development (History of Animals, 7.3)
In the case of male children, the first movement usually occurs on the right-hand side of the womb and about the fortieth day, but if the child is a female then on the left-hand side and about the ninetieth day. However, we must by no means assume this to be an accurate statement of fact, for there are many exceptions, in which the movement is manifested on the right-hand side though a female child is coming, and on the left-hand side though the infant is a male. And in short, these and all suchlike phenomena are usually subject to differences that may be summed up as differences of degree.
What is called effluxion is a destruction of the embryo within the first week, while abortion occurs up to the fortieth day; and the greater number of such embryos as perish do so within the space of these forty days.
In the case of a male embryo aborted at the fortieth day, if it is placed in cold water it holds together in a sort of membrane, but if it is placed in any other fluid it dissolves and disappears. If the membrane is pulled to bits the embryo is revealed, as big as one of the large kind of ants; and all the limbs are plain to see, including the penis, and the eyes also, which as in other animals are of great size. But the female embryo, if it suffer abortion during the first three months, is as a rule found to be undifferentiated. If however it reach the fourth month it comes to be subdivided and quickly attains further differentiation. In short, while within the womb, the female infant accomplishes the whole development of its parts more slowly than the male, and more frequently than the man-child takes ten months to come to perfection. But after birth, the females pass more quickly than the males through youth and maturity and age; and this is especially true of those that bear many children, as indeed I have already said.
Abortion (Politics, 7.16)
As to the exposure [i.e., abandoning an infant to die in an open area] and rearing of children, let there be a law that no deformed child shall live. But as to an excess in the number of children, if the established customs of the state forbid this (for in our state population has a limit), no child is to be exposed. But when couples have children in excess, let abortion be procured before sense and life have begun; what may or may not be lawfully done in these cases depends on the question of life and sensation.
TERTULLIAN: FETUSES HAVE SOULS AND LIFE FROM CONCEPTION
25. Tertullian Refutes, Physiologically, the Notion that the Soul is Introduced After Birth.
I shall now return to the cause of this digression, in order that I may explain how all souls are derived from one, when and where and in what manner they are produced. Now, touching this subject, it matters not whether the question is started by the philosopher, by the heretic, or by the crowd. Those who profess the truth care nothing about their opponents, especially such of them as begin by maintaining that the soul is not conceived in the womb, nor is formed and produced at the time that the flesh is molded, but is impressed from without upon the infant before his complete vitality, but after the process of parturition. They say, moreover, that the human seed having been duly deposited during intercorse in the womb, and having been by natural impulse quickened, it becomes condensed into the mere substance of the flesh, which is in due time born, warm from the furnace of the womb, and then released from its heat. (This flesh) resembles the case of hot iron, which is in that state plunged into cold water. For, being smitten by the cold air (into which it is born), it at once receives the power of animation, and utters vocal sound. This view is entertained by the Stoics, along with Aenesidemus, and occasionally by Plato himself, when he tells us that the soul, being quite a separate formation, originating elsewhere and externally to the womb, is inhaled when the new-born infant first draws breath, and by and by exhaled with the man's latest breath. We shall see whether this view of his is merely fictitious. Even the medical profession has not lacked its Hicesius [the renown ancient Greek physician], to prove a traitor both to nature and his own calling. These gentlemen, I suppose, were too modest to come to terms with women on the mysteries of childbirth, so well-known to the latter. But how much more is there for them to blush at, when in the end they have the women to refute them, instead of commending them.
Now, in such a question as this, no one can be so useful a teacher, judge, or witness, as the sex itself which is so intimately concerned. Give us your testimony, then, mothers, whether yet pregnant, or after delivery (let barren women and men keep silence). The truth of your own nature is in question, the reality of your own suffering is the point to be decided. (Tell us, then, ) whether you feel in the embryo within you any vital force other than your own, with which your bowels tremble, your sides shake, your entire womb throbs, and the burden which oppresses you constantly changes its position? Are these movements a joy to you, and a positive removal of anxiety, as making you confident that your infant both possesses vitality and enjoys it? Or, should his restlessness cease, your first fear would be for him; and he would be aware of it within you, since he is disturbed at the novel sound; and you would crave for injurious diet, or would even loathe your food-all on his account; and then you and he, (in the closeness of your sympathy) would share together your common ailments-so far that with your contusions and bruises would he actually become marked,-whilst within you, and even on the selfsame parts of the body, taking to himself thus peremptorily the injuries of his mother!
Now, whenever a livid hue and redness are incidents of the blood, the blood will not be without the vital principle, or soul; or when disease attacks the soul or vitality, (it becomes a proof of its real existence, since) there is no disease where there is no soul or principle of life. Again, inasmuch as sustenance by food, and the want thereof, growth and decay, fear and motion, are conditions of the soul or life, he who experiences them must be alive. And, so, he at last ceases to live, who ceases to experience them. And thus by and by infants are still-born; but how so, unless they had life? For how could any die, who had not previously lived?
But sometimes by a cruel necessity, while yet in the womb, an infant is put to death, when lying awry in the orifice of the womb he impedes parturition, and kills his mother, if he is not to die himself. Accordingly, among surgeons' tools there is a certain instrument, which is formed with a nicely-adjusted flexible frame for opening the uterus first of all, and keeping it open; it is further furnished with an annular blade, by means of which the limbs within the womb are dissected with anxious but unfaltering care; its last appendage being a blunted or covered hook, wherewith the entire fetus is extracted by a violent delivery. There is also (another instrument in the shape of) a copper needle or spike, by which the actual death is managed in this furtive robbery of life: they give it, from its infanticide function, the name of embruosphaktes, the slayer of the infant, which was of course alive.
Such apparatus was possessed both by Hippocrates, and Asclepiades, and Erasistratus, and Herophilus, that dissector of even adults, and the milder Soranus himself, who all knew well enough that a living being had been conceived, and pitied this most luckless infant state, which had first to be put to death, to escape being tortured alive. Of the necessity of such harsh treatment I have no doubt even Hicesius was convinced, although he imported their soul into infants after birth from the stroke of the frigid air, because the very term for soul, forsooth, in Greek answered to such a refrigeration! Well, then, have the barbarian and Roman nations received souls by some other process, (I wonder) for they have called the soul by another name than psuche? How many nations are there who commence life under the broiling sun of the torrid zone, scorching their skin into its swarthy hue? Whence do they get their souls, with no frosty air to help them? I say not a word of those well-warmed bedrooms, and all that apparatus of heat which ladies in childbirth so greatly need, when a breath of cold air might endanger their life. But in the very bath almost a babe will slip into life, and at once his cry is heard! if, however, a good frosty air is to the soul so indispensable a treasure, then beyond the German and the Scythian tribes, and the Alpine and the Argaean heights, nobody ought ever to be born! But the fact really is, that population is greater within the temperate regions of the East and the West, and men's minds are sharper; while there is not a Sarmatian whose wits are not dull and humdrum. The minds of men, too, would grow keener by reason of the cold, if their souls came into being amidst nipping frosts; for as the substance is, so must be its active power. Now, after these preliminary statements, we may also refer to the case of those who, having been cut out of their mother's womb, have breathed and retained life, such as Bacchuses and Scipios.
If, however, there be anyone who, like Plato, supposes that two souls cannot, more than two bodies could, co-exist in the same individual, I, on the contrary, could show him not merely the co-existence of two souls in one person, as also of two bodies in the same womb, but likewise the combination of many other things in natural connection with the soul, for instance, of demoniacal possession; and that not of one only, as in the case of Socrates' own demon; but of seven spirits as in the case of the Magdalene; and of a legion in number, as in the Gadarene. Now one soul is naturally more susceptible of conjunction with another soul, by reason of the identity of their substance, than an evil spirit is, owing to their diverse natures. But when the same philosopher, in the sixth book of The Laws, warns us to beware in case a vitiation of seed should infuse a soil into both body and soul from an illicit or debased intercourse, I hardly know whether he is more inconsistent with himself in respect of one of his previous statements, or of that which he had just made. For he here shows us that the soul proceeds from human seed (and warns us to be on our guard about it), not, (as he had said before) from the first breath of the new-born child. Pray, how is it that from similarity of soul we resemble our parents in disposition, according to the testimony of Cleanthes, if we are not produced from this seed of the soul? Why, too, used the old astrologers to cast a man's nativity from his first conception, if his soul also draws not its origin from that moment? To this (nativity) likewise belongs the inbreathing of the soul, whatever that is.
27. Soul and Body Conceived, Formed and Perfected in Element Simultaneously
How, then, is a living being conceived? Is the substance of both body and soul formed together at one and the same time? Or does one of them precede the other in natural formation? We indeed maintain that both are conceived, and formed, and perfectly simultaneously, as well as born together; and that not a moment's interval occurs in their conception, so that, a prior place can be assigned to either. Judge, in fact, of the incidents of man's earliest existence by those which occur to him at the very last. As death is defined to be nothing else than the separation of body and soul, life, which is the opposite of death, is susceptible of no other definition than the conjunction of body and soul. If the severance happens at one and the same time to both substances by means of death, so the law of their combination ought to assure us that it occurs simultaneously to the two substances by means of life. Now we allow that life begins with conception, because we contend that the soul also begins from conception; life taking its commencement at the same moment and place that the soul does. Thus, then, the processes which act together to produce separation by death, also combine in a simultaneous action to produce life.
AUGUSTINE: THE SOULS OF FORMED FETUSES
84. The Resurrection of the Body Gives Rise to Numerous Questions
Now, as to the resurrection of the body, — not a resurrection such as some have had, who came back to life for a time and died again, but a resurrection to eternal life, as the body of Christ Himself rose again—I do not see how I can discuss the matter briefly, and at the same time give a satisfactory answer to all the questions that are ordinarily raised about it. Yet that the bodies of all men— both those who have been born and those who shall be born, both those who have died and those who shall die— shall be raised again, no Christian ought to have the shadow of a doubt.
85. The Case of Abortive Conceptions
Hence in the first place arises a question about abortive conceptions, which have indeed been born in the mother's womb, but not so born that they could be born again. For if we shall decide that these are to rise again, we cannot object to any conclusion that may be drawn in regard to those which are fully formed. Now who is there that is not rather disposed to think that unformed abortions perish, like seeds that have never fructified? But who will dare to deny, though he may not dare to affirm, that at the resurrection every defect in the form shall be supplied, and that thus the perfection which time would have brought shall not be wanting, any more than the blemishes which time did bring shall be present: so that the nature shall neither want anything suitable and in harmony with it that length of days would have added, nor be debased by the presence of anything of an opposite kind that length of days has added; but that what is not yet complete shall be completed, just as what has been injured shall be renewed.
86. If They Have Ever Lived, They Must of Course Have Died, and Therefore Shall Have a Share in the Resurrection of the Dead
And therefore the following question may be very carefully inquired into and discussed by learned men, though I do not know whether it is in man's power to resolve it: At what time the infant begins to live in the womb: whether life exists in a latent form before it manifests itself in the motions of the living being. To deny that the young who are cut out limb by limb from the womb, lest if they were left there dead the mother should die too, have never been alive, seems too audacious. Now, from the time that a man begins to live, from that time it is possible for him to die. And if he die, wheresoever death may overtake him, I cannot discover on what principle he can be denied an interest in the resurrection of the dead.
87. The Case of Monstrous Births
We are not justified in affirming even of monstrosities, which are born and live, however quickly they may die, that they shall not rise again, nor that they shall rise again in their deformity, and not rather with an amended and perfected body. God forbid that the double limbed man who was lately born in the East, of whom an account was brought by most trustworthy brethren who had seen him—an account which the presbyter Jerome, of blessed memory, left in writing; — God forbid, I say, that we should think that at the resurrection there shall be one man with double limbs, and not two distinct men, as would have been the case had twins been born. And so other births, which, because they have either a superfluity or a defect, or because they are very much deformed, are called monstrosities, shall at the resurrection be restored to the normal shape of man; and so each single soul shall possess its own body; and no bodies shall cohere together even though they were born in cohesion, but each separately shall possess all the members which constitute a complete human body.
AQUINAS: FETUSES AND THE HUMAN SOUL
The Sensitive Soul is Transmitted with the Semen
Some have held that the sensitive souls of animals are created by God. This opinion would hold if the sensitive soul were subsistent, having being and operation of itself. For thus, as having being and operation of itself, to be made would needs be proper to it. And since a simple and subsistent thing cannot be made except by creation, it would follow that the sensitive soul would arrive at existence by creation.
But this principle is false—namely, that being and operations are proper to the sensitive soul, as has been made clear above: for it would not cease to exist when the body perishes. Since, therefore, it is not a subsistent form, its relation to existence is that of the corporeal forms, to which existence does not belong as proper to them, but which are said to exist forasmuch as the subsistent composites exist through them.
For this reason to be made is proper to composites. And since the generator is like the generated, it follows of necessity that both the sensitive soul, and all other like forms are naturally brought into existence by certain corporeal agents that reduce the matter from potentiality to act, through some corporeal power of which they are possessed.
Now the more powerful an agent, the greater scope its action has: for instance, the hotter a body, the greater the distance to which its heat carries. Therefore bodies not endowed with life, which are the lowest in the order of nature, generate their like, not through some medium, but by themselves; thus fire by itself generates fire. But living bodies, as being more powerful, act so as to generate their like, both without and with a medium. They do so without a medium in the work of nutrition, in which flesh generates flesh. They do so with a medium in the act of generation, because the semen of the animal or plant derives a certain active force from the soul of the generator, just as the instrument derives a certain motive power from the principal agent. And as it matters not whether we say that something is moved by the instrument or by the principal agent, so neither does it matter whether we say that the soul of the generated is caused by the soul of the generator, or by some seminal power derived therefrom.
The Intellectual Soul is Produced from God, not Semen
Some say that the vital functions observed in the embryo are not from its soul, but from the soul of the mother; or from the formative power of the semen. Both of these explanations are false; for vital functions such as feeling, nourishment, and growth cannot be from an extrinsic principle. Consequently it must be said that the soul is in the embryo; the nutritive soul from the beginning, then the sensitive, lastly the intellectual soul. Therefore some say that in addition to the vegetative soul which existed first, another, namely the sensitive, soul supervenes; and in addition to this, again another, namely the intellectual soul. Thus there would be in man three souls of which one would be in potentiality to another. This has been disproved above.
Therefore others say that the same soul which was at first merely vegetative, afterwards through the action of the seminal power, becomes a sensitive soul; and finally this same soul becomes intellectual, not indeed through the active seminal power, but by the power of a higher agent, namely God enlightening (the soul) from without. For this reason the Philosopher says that the intellect comes from without. But this will not hold.
First, because no substantial form is susceptible of more or less; but addition of greater perfection constitutes another species, just as the addition of unity constitutes another species of number. Now it is not possible for the same identical form to belong to different species.
Secondly, because it would follow that the generation of an animal would be a continuous movement, proceeding gradually from the imperfect to the perfect, as happens in alteration.
Thirdly, because it would follow that the generation of a man or an animal is not generation simply, because the subject thereof would be a being in act. For if the vegetative soul is from the beginning in the matter of offspring, and is subsequently gradually brought to perfection; this will imply addition of further perfection without corruption of the preceding perfection. And this is contrary to the nature of generation properly so called.
Fourthly, because either that which is caused by the action of God is something subsistent: and thus it must needs be essentially distinct from the pre-existing form, which was nonsubsistent; and we shall then come back to the opinion of those who held the existence of several souls in the body—or else it is not subsistent, but a perfection of the pre-existing soul: and from this it follows of necessity that the intellectual soul perishes with the body, which cannot be admitted.
There is again another explanation, according to those who held that all men have but one intellect in common: but this has been disproved above.
We must therefore say that since the generation of one thing is the corruption of another, it follows of necessity that both in men and in other animals, when a more perfect form supervenes the previous form is corrupted: yet so that the supervening form contains the perfection of the previous form, and something in addition. It is in this way that through many generations and corruptions we arrive at the ultimate substantial form, both in man and other animals. This indeed is apparent to the senses in animals generated from putrefaction. We conclude therefore that the intellectual soul is created by God at the end of human generation, and this soul is at the same time sensitive and nutritive, the pre-existing forms being corrupted.
Source: Aristotle, History of Animals, 7.3; Politics, 7.16. Tertullian, Treatise on the Soul, tr. Peter Holmes. Augustine, Handbook on Faith, Hope and Love, 84-87, tr. J.F. Shaw. Thomas Aquinas, Summa Theologica, 1ae Q. 18, Art. 1, 2.
Questions for Review
1. For Aristotle, what do male fetuses look like when 40 days old?
2. Aquinas explains that humans biologically generate themselves through some kind of medium. What is that process?
3. Aquinas rejects the view that earlier souls develop into the higher ones, with the intellectual soul developing out of the sensitive soul through an act of God. Give one of Aquinas’s four arguments against this view.
4. Once God introduces the intellectual soul into a human, what happens to the earlier nutritive and sensitive souls?
Questions for Analysis
1. Aristotle advocates killing deformed infants through exposure. Would this have been a reasonable public policy in his time? Explain.
2. Aristotle advocates a form of population control through abortion—a public policy that China has adopted in recent decades. Under what circumstances, if any, would this policy be justifiable?
3. Aquinas discusses five different theories of how the vegetative, sensitive, and intellectual souls are related to each other. He rejects the first four and defends the final one. Are any of the first four theories better than the one that he defends? Explain.
4. Both Aristotle and Aquinas have a view of the human psyche that involves three levels of the soul: the vegetative, the sensitive, and the intellectual. Does this have any helpful application to discussion of abortion today? Explain.
5. Both Aristotle’s and Aquinas’s view of fetuses hinge on the notion of delayed hominization, the view that fetuses gain their full human souls as they develop. Replacing the notion of “human soul” with “moral personhood,” develop a more contemporary account of delayed hominization.
SUPREME COURT CASES ON ABORTION
Roe v. Wade, Planned Parenthood v. Casey
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.
Almost 20 years after Roe v. Wade, the Supreme Court again took on the abortion issue in Planned Parenthood v. Casey (1992). The case involved a proposed Pennsylvania law that would impose major restrictions on women seeking abortions, which, in essence, directly challenged the right to abortion established by Roe. In a 5 to 4 decision, the Court reaffirmed the Roe decision while at the same time making some concessions to that wished to regulate abortion. The three central points of reaffirmation are (1) before viability women have to right to abortion without undue interference from the State; (2) States can regulate abortions after viability, but with provisions for the woman’s life and health; (3) from the outset of pregnancy, States have legitimate interests to protect the health of the woman and the life of the fetus. The Court argued that, when reasonable people disagree, the government can decide either way, except when a Constitutionally protected liberty is at issue. In view of the intimate and personal nature of the abortion decision, it is a Constitutionally protected liberty. But, since it is a decision that affects others, the States have legitimate interests in imposing regulations that don’t create an undue burden for the woman. In a dissenting opinion, Justice Antonin Scalia agreed that abortion is a liberty, but denied that it is a Constitutionally protected one.
THE RIGHT TO AN ABORTION: ROE V. WADE
A pregnant single woman (Roe) brought a class action challenging the constitutionality of the Texas criminal abortion laws, which proscribe [i.e., banned] procuring or attempting an abortion except on medical advice for the purpose of saving the mother's life. A licensed physician (Hallford), who had two state abortion prosecutions pending against him, was permitted to intervene. A childless married couple (the Does), the wife not being pregnant, separately attacked the laws, basing alleged injury on the future possibilities of contraceptive failure, pregnancy, unpreparedness for parenthood, and impairment of the wife's health. A three-judge District Court, which consolidated the actions, held that Roe and Hallford, and members of their classes, had standing to sue and presented justiciable controversies. . . .
Complexities of the Abortion Issue
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. . . .
Abortion 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.”
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
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.
Dissenting Opinion: Justice Byron White
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. . . .
REAFFIRMING ROE V. WADE: PLANNED PARENTHOOD V. CASEY (1992)
At issue are five provisions of the Pennsylvania Abortion Control Act of 1982: 3205, which requires that a woman seeking an abortion give her informed consent prior to the procedure, and specifies that she be provided with certain information at least 24 hours before the abortion is performed; 3206, which mandates the informed consent of one parent for a minor to obtain an abortion, but provides a judicial bypass procedure; 3209, which commands that, unless certain exceptions apply, a married woman seeking an abortion must sign a statement indicating that she has notified her husband; 3203, which defines a “medical emergency” that will excuse compliance with the foregoing requirements; and 3207(b), 3214(a), and 3214(f), which impose certain reporting requirements on facilities providing abortion services. Before any of the provisions took effect, the petitioners, five abortion clinics and a physician representing himself and a class of doctors who provide abortion services, brought this suit seeking a declaratory judgment that each of the provisions was unconstitutional on its face, as well as injunctive relief. . . .
Retaining the Essential Holding of Roe: Justice O'Connor, Kennedy, and Souter
Liberty finds no refuge in a jurisprudence of doubt. Yet, 19 years after our holding that the Constitution protects a woman’s right to terminate her pregnancy in its early stages, Roe v. Wade, that definition of liberty is still questioned. . . .
After considering the fundamental constitutional questions resolved by Roe, principles of institutional integrity, and the rule of stare decisis [i.e., respect for precedent], we are led to conclude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed.
It must be stated at the outset and with clarity that Roe’s essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure. Second is a confirmation of the State’s power to restrict abortions after fetal viability if the law contains exceptions for pregnancies which endanger the woman’s life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each. . . .
Disagreement and Preserving Liberty
Men and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage. Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code. The underlying constitutional issue is whether the State can resolve these philosophic questions in such a definitive way that a woman lacks all choice in the matter, except perhaps in those rare circumstances in which the pregnancy is itself a danger to her own life or health, or is the result of rape or incest.
It is conventional constitutional doctrine that, where reasonable people disagree, the government can adopt one position or the other. That theorem, however, assumes a state of affairs in which the choice does not intrude upon a protected liberty. Thus, while some people might disagree about whether or not the flag should be saluted, or disagree about the proposition that it may not be defiled, we have ruled that a State may not compel or enforce one view or the other
Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Our cases recognize the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. Our precedents “have respected the private realm of family life which the state cannot enter.” 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.
Intimate Nature of the Woman’s Decision
These considerations begin our analysis of the woman’s interest in terminating her pregnancy, but cannot end it, for this reason: though the abortion decision may originate within the zone of conscience and belief, it is more than a philosophic exercise. Abortion is a unique act. It is an act fraught with consequences for others: for the woman who must live with the implications of her decision; for the persons who perform and assist in the procedure; for the spouse, family, and society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of violence against innocent human life; and, depending on one’s beliefs, for the life or potential life that is aborted. Though abortion is conduct, it does not follow that the State is entitled to proscribe it in all instances. That is because the liberty of the woman is at stake in a sense unique to the human condition, and so, unique to the law. The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear. That these sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others and gives to the infant a bond of love cannot alone be grounds for the State to insist she make the sacrifice. Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman’s role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society. . . . It was this dimension of personal liberty that Roe sought to protect, and its holding invoked the reasoning and the tradition of the precedents we have discussed, granting protection to substantive liberties of the person. . . .
Some guiding principles should emerge. What is at stake is the woman's right to make the ultimate decision, not a right to be insulated from all others in doing so. Regulations which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman's exercise of the right to choose. Unless it has that effect on her right of choice, a state measure designed to persuade her to choose childbirth over abortion will be upheld if reasonably related to that goal. Regulations designed to foster the health of a woman seeking an abortion are valid if they do not constitute an undue burden.
Even when jurists reason from shared premises, some disagreement is inevitable. That is to be expected in the application of any legal standard which must accommodate life's complexity. We do not expect it to be otherwise with respect to the undue burden standard. We give this summary:
(a) To protect the central right recognized by Roe v. Wade while at the same time accommodating the State's profound interest in potential life, we will employ the undue burden analysis as explained in this opinion. An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.
(b) We reject the rigid trimester framework of Roe v. Wade. To promote the State's profound interest in potential life, throughout pregnancy the State may take measures to ensure that the woman's choice is informed, and measures designed to advance this interest will not be invalidated as long as their purpose is to persuade the woman to choose childbirth over abortion. These measures must not be an undue burden on the right.
(c) As with any medical procedure, the State may enact regulations to further the health or safety of a woman seeking an abortion. Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.
(d) Our adoption of the undue burden analysis does not disturb the central holding of Roe v. Wade, and we reaffirm that holding. Regardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.
(e) We also reaffirm Roe's holding that "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."
These principles control our assessment of the Pennsylvania statute, and we now turn to the issue of the validity of its challenged provisions.
My views on this matter are unchanged from those I set forth in my separate opinions in Webster v. Reproductive Health Services, and Ohio v. Akron Center for Reproductive Health. The States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so. The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting. As the Court acknowledges, "where reasonable people disagree the government can adopt one position or the other." The Court is correct in adding the qualification that this "assumes a state of affairs in which the choice does not intrude upon a protected liberty,"--but the crucial part of that qualification is the penultimate word. A State's choice between two positions on which reasonable people can disagree is constitutional even when (as is often the case) it intrudes upon a "liberty" in the absolute sense. Laws against bigamy, for example--which entire societies of reasonable people disagree with--intrude upon men and women's liberty to marry and live with one another. But bigamy happens not to be a liberty specially "protected" by the Constitution.
That is, quite simply, the issue in this case: not whether the power of a woman to abort her unborn child is a "liberty" in the absolute sense; or even whether it is a liberty of great importance to many women. Of course it is both. The issue is whether it is a liberty protected by the Constitution of the United States. I am sure it is not. I reach that conclusion not because of anything so exalted as my views concerning the "concept of existence, of meaning, of the universe, and of the mystery of human life." Rather, I reach it for the same reason I reach the conclusion that bigamy is not constitutionally protected--because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed. . . .
The Court's description of the place of Roe in the social history of the United States is unrecognizable. Not only did Roe not, as the Court suggests, resolve the deeply divisive issue of abortion; it did more than anything else to nourish it, by elevating it to the national level where it is infinitely more difficult to resolve. National politics were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress, before Roe v. Wade was decided. Profound disagreement existed among our citizens over the issue--as it does over other issues, such as the death penalty--but that disagreement was being worked out at the state level. As with many other issues, the division of sentiment within each State was not as closely balanced as it was among the population of the Nation as a whole, meaning not only that more people would be satisfied with the results of state by state resolution, but also that those results would be more stable. Pre-Roe, moreover, political compromise was possible.
Roe's mandate for abortion on demand 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. At the same time, Roe created a vast new class of abortion consumers and abortion proponents by eliminating the moral opprobrium that had attached to the act. ("If the Constitution guarantees abortion, how can it be bad?"--not an accurate line of thought, but a natural one.) Many favor all of those developments, and it is not for me to say that they are wrong. But to portray Roe as the statesmanlike "settlement" of a divisive issue, a jurisprudential Peace of Westphalia that is worth preserving, is nothing less than Orwellian. Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since. And by keeping us in the abortion umpiring business, it is the perpetuation of that disruption, rather than of any pax Roeana, that the Court's new majority decrees. . . .
Source: Justices Harry Blackman and Byron White, Roe v. Wade (1973); Justice Sandra Day O'Connor, Anthony Kennedy, Antonin Scalia, and David Souter, Planned Parenthood v. Casey (1992).
Questions for Review
1. Describe the English common law view of abortion, which was held in the U.S. until the mid 19th century.
2. What are the three reasons given for the criminalization of abortion in the 19th century?
3. What are some of the differing views of when life begins, and what view does the court take?
4. What is the court’s view of abortion regulation during each of the three trimesters of pregnancy?
5. On what grounds does Justice White object to the majority decision?
6. In Planned Parenthood v. Casey, what are the three main points of Roe v. Wade that the court reaffirmed?
7. In Planned Parenthood v. Casey, what are the five guiding principles for what States can do?
8. In his dissenting opinion in Planned Parenthood v. Casey, Scalia argues that Roe v. Wade did not resolve the abortion issue in the U.S., but actually made things much worse. How did it make things worse?
Questions for Analysis
1. 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.
2. The Supreme Court case Griswold v. Connecticut (1965) defends the Constitutional right of married people to use contraception based on a “zone of privacy” that people have within the marriage bedroom. This notion of privacy is also used in Roe v. Wade to grant women a Constitutionally protected right to abortion. Assuming that the fetus does not have moral or legal personhood, is the parallel between contraception use and abortion sufficient enough for abortion to be included within that zone of privacy?
3. 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.
4. Explain Justice White’s reasoning in the second to the last paragraph of his dissenting opinion (“The Court apparently values the convenience. . . .”
5. In Planned Parenthood v. Casey, the abortion issue comes down to this question: is abortion a constitutionally protected liberty like access to contraception, or is it a liberty that is not constitutionally protected like bigamy? The majority opinion is that abortion is more like contraception, and Scalia argued that it is more like bigamy. Who is right?
6. In Planned Parenthood v. Casey, the majority opinion was to reaffirm the essential elements of Roe v. Wade. However, with the concessions that the Court made to States’ interests in protecting pre-viability fetuses, did their decision reaffirm Roe v. Wade as much as they claimed?
7. Since the Planned Parenthood v. Casey decision, a critical issue in the national abortion debate concerns how much interference a State may impose on a woman’s choice before it becomes an “undue burden” on the woman. Look at the Wikipedia article on “TRAP laws” and discuss whether such TRAP laws impose an undue burden, and, thus, run counter to the Supreme Court’s ruling.
8. In his dissenting opinion in Planned Parenthood v. Casey, Scalia argues that the original Roe v. Wade decision did not resolve the abortion issue in the U.S., but instead made the social climate much worse. When addressing conflict-ridden moral issues such as abortion, should it be the job of the Supreme Court to make decisions based on resulting social harmony? Explain.
Leon R. Kass and the President’s Council on Bioethics
Do human embryos in their early stages of development have the same right to life that adult humans do? This is the issue of embryonic personhood, and is critical to both the abortion and stem cell research debates. The selection below was written by The President’s Council on Bioethics, a team of scholars under the direction of physician Leon R. Kass which advised the President’s administration on ethical controversies relating to biology and medicine. The authors first examine what is called the continuity argument for embryonic personhood: that is, no meaningful biological line of distinction can be drawn between embryos and adults which would grant personhood to adults, but not to embryos. Defenders of the continuity argument hold that conception is the only boundary regarding the moral worth of a human. It is a new genome and a new “entity capable of its own internally self-directed development.” But critics of the continuity argument argue that there are three major developmental boundaries that are relevant to the emergence of personhood. There is the “primitive streak”, that is, the earliest structure of the vertebrae column which occurs around day 14. Next, there is the development of the nervous system, which is important for sensation and pain. Lastly, there is also the development of human form, which “truly signals the presence of a human life.” The authors next examine other factors about the status of embryos that bear on their use in medical research, such as stem cell technology. First, there is the issue that embryos for research are frozen ones from in vetro fertilization clinics; these are embryos that would not be used producing children and thus would otherwise die. Next, there is the issue that in normal pregnancies, an extraordinary number of embryos are miscarried, perhaps many as 89%; this might say something about the significance of human embryos in the earliest stages. Finally, there are efforts in biotechnology to create non-viable embryos or other biological entities that produce stem cells, but do not have the capacity for further prenatal development. The authors consider arguments pro and contra on all of the above issues.
Many elements (though, as we shall make clear, not all elements) of the ongoing debate about federal funding of human embryonic stem cell research seem, as we have reviewed them, to turn on a basic disagreement about the nature, character, and moral standing of human embryos. Public debate over the moral standing and appropriate treatment of human embryos has been quite contentious and divisive in recent years. In part, this had to do with its almost inevitable entanglement with the abortion debate, itself a deep and thorny controversy in America. In part, too, this has been connected to the fact that the question of the moral standing of human embryos touches many other fundamental moral and existential questions involving human origins, human dignity, the moral significance of our biology, and its relation to numerous traditional and widely shared moral teachings. Differences of opinion on the moral standing of human embryos often suggest differences on these larger questions of overall worldview. Nonetheless, the question of the moral standing of human embryos itself has been taken by nearly all commentators to be amenable to human reason and argument, and a lively debate has raged despite (or perhaps precisely because of) these widely diverging starting assumptions.
In the public arena, the question of the moral standing of human embryos has often been summed up in the question, “When does (a) human life begin?” This question suggests something of the quandary, although the academic and intellectual debate generally takes a somewhat more nuanced question as its starting point. That question has as its unstated premise the fact that under normal circumstances we regard all born human beings (from newborns through adults) as possessing equal moral worth and meriting equal legal protection. It then reflects upon the ways in which human embryos are similar and different from live-born human individuals, the moral significance of those similarities and differences, and therefore whether embryos should or should not be afforded protections.
The first and most common recourse in seeking an answer to such questions has been human biology, and particularly human embryology. Nearly all participants in the dispute make some reference to biological findings, whether to claim that they teach us about an embryo’s essential continuity with and similarity to human beings at other stages of life, or to argue that they reveal profound and morally meaningful discontinuities between embryos and live-born persons.
While we examine these differing contentions, it is crucial to remember—as several commentators in recent years have noted—that the biological findings, however relevant, are not themselves necessarily decisive morally. They may serve better to challenge moral positions founded on erroneous assumptions than to ground some positive moral affirmation or conclusion. For example, a recognition of biological continuity might in some measure undermine the argument that embryo destruction is permissible when certain biological markers or states of development are absent. But it would not by itself show indisputably that embryos are to be treated as simply inviolable. Meanwhile, recognizing the biological significance of some particular point, marker, characteristic, or capacity would not, in itself, imply some decisive moral significance. A description of early embryonic development is necessary though not sufficient to an understanding of the nature and worth of an early embryo. It is not sufficient because any purely biological description requires some interpretation of its anthropological and moral significance before it can function as a guide to action.
With these provisions in mind, we offer the following brief review of developments in the debate over the moral standing of human embryos in the past several years.
CONTINUITY AND DISCONTINUITY
Many participants in the debate take the question of the biological continuity or discontinuity between nascent and later human life to be crucially significant. Some argue that the fundamental organismal continuity from the moment of fertilization until natural death means that no lines can be drawn between embryos and adults. Others argue, on the contrary, that some particular point of discontinuity (or the sum of several such points) marks a morally significant distinction between stages, which difference should guide our treatment of human embryos.
The Case for Continuity.
Many of those who seek to defend human embryos base their case on some form of the argument for biological continuity and sameness through time. For example, they argue that a human embryo is an organic whole, a living member of the human species in the earliest stage of natural development, and that, given the appropriate environment, it will, by self-directed integral organic functioning, develop progressively to the next more mature stage and become first a human fetus and then a human infant. Every adult human being around us, they argue, is the same individual who, at an earlier stage of life, was a human embryo. We all were then, as we still are now, distinct and complete human organisms, not mere parts of other organisms.
This view holds that only the very beginning of a new (embryonic) life can serve as a reasonable boundary line in according moral worth to a human organism, because it is the moment marked out by nature for the first visible appearance in the world of a new individual. Before fertilization, no new individual exists. After it, sperm and egg cells are gone—subsumed and transformed into a new, third entity capable of its own internally self-directed development. By itself, no sperm or egg has the potential to become an adult, but zygotes by their very nature do.
Many authors therefore regard the activation of the oocyte (by the penetration of the sperm) or the completion of syngamy (the combining of paternally- and maternally-contributed haploid pro-nuclei to result in a unique diploid nucleus of a developing zygote) as a meaningful marker of the beginning of a new human life worthy of protection. After this point, there is a new genome, in a new individual organism, and there is a zygote (single-celled embryo) already beginning its first cleavage and embarking on its continuous developmental path toward birth.
All further stages and events in embryological development, they argue, are discrete labels applied to an organism that is persistently itself even as it continuously changes in its dimensions, scope, degree of differentiation, and so on. We can learn names for the various stages as if they were static and discrete, but the living and developing embryo is continuously dynamic. More to the point, in the view of these commentators no discrete point in time or development would seem to give any justification for assuming that the embryo in question was one thing at one point and then suddenly became something different (turning, for example, from non-human to human or from non-person to person). None of the biological events (or “points” in processes), they contend, is sufficient to tell us what we are morally permitted or obligated to do to human embryos, in the absence of one or another additional premises that shape one’s view of these biological events. And if one’s guiding premise is that all human persons possess equal moral standing—regardless of their particular powers, size, or appearance—then there are no grounds for denying the earliest human embryo full moral standing as a person.
Some critics of this position argue that it makes too much of mere genetic identity and (uncertain) potential or that it does not make enough of present condition and the significance of development itself. There is more to being human, some observers argue, than possessing a human genome or spontaneous cell division, and it matters that the early human embryo is but a ball of cells, without sentience or sensation and without human form. It matters, too, they argue, that an ex vivo [i.e., outside the womb] human embryo does not have the potential to develop independently, without further technical intervention. Indeed, some argue that a human embryo in its earliest stages is essentially no different from any human tissue culture in the laboratory, or that, because the ex vivo embryo cannot develop if left to itself, it cannot be thought of as truly continuous with more developed human organisms. It may be, in the description of one observer, not much different from a pile of building materials stored in a warehouse.
Nonetheless, advocates of the argument from continuity suggest that it is dangerous to begin to assign moral worth on the basis of the presence or absence of particular capacities and features, and that instead we must recognize each member of our species from his or her earliest days as a human being deserving of dignified treatment. They contend that a human embryo already has the biological potential needed to enable the exercise, at a later stage of development, of certain functions. Sentience and sensation come in later in the process of development, but their seeds are there right from the beginning. And the fact that an embryo cannot develop outside the body is not an argument for leaving it outside the body. There is, they argue, no clear place to draw a line after the earliest formation of the organism, and so there can be no stark division between the moral standing of nascent human life and that of more mature individuals.
The Case for Meaningful Discontinuity and Developing Moral Status.
Many other observers, however, argue that some biologically and morally significant discontinuities do in fact present themselves in the course of early human development. These arguments generally do not simply hinge on biological descriptions—which are, in the absence of analysis, largely devoid of obvious moral significance—but instead begin from some implicit or explicit claim regarding the importance of a particular feature, capacity, form, or function (or the progressive accumulation of these) in defining a developing organism as meaningfully a member of the human race. Not simply grounded in biology, they appeal also to a moral or even metaphysical claim about the meaning of humanity. They suggest that the developing human organism might become (at once or progressively) deserving of protection as it becomes able to feel pain, or to exhibit neural activity, or rudimentary features of consciousness, or some elements of the human form, or the capacity to function independently—or as it progressively exhibits more and more of these or other criteria. Until that time, many argue, a developing human deserves some respect because of what it might become, but not protection on par (or nearly so) with that afforded to fully human subjects. They suggest that genetic identity and organismic continuity are not sufficient; what matters is present form and function, more than mere potential.
Several particular putative discontinuities (and combinations of them) have been proposed as candidates for the division between early stages, when a human embryo may be disaggregated for research, and later stages, when it deserves some greater level of protection.
(a) Primitive streak: The most popular candidate for a meaningful point of discontinuity is the appearance of the primitive streak, the earliest visible “structure” that defines the region of the embryo along which the vertebral column will form. The primitive streak generally appears around the 14th day after first cell division. It is taken to indicate the anterior-posterior axis of an embryo (in vertebrates), although recent studies suggest that polarity may be established much earlier, and in fact may be indicated by the point at which the sperm enters the egg.
A principal reason for the importance placed on the primitive streak has to do with the biology of twinning. Prior to the appearance of the primitive streak, an embryo may (rarely, and for unknown reasons) divide completely to form identical twins. Some conclude that individuality must not yet be established, since the embryo might yet become two embryos. Since individuality is essential to human personhood and capacity for moral status, since individuality presumes a definitive single individual, and since the singularity of the embryo is not irrevocably settled prior to the appearance of the primitive streak, they argue that the entity prior to the primitive streak stage lacks definitive individuality and hence also moral status. Critics of this line of reasoning point to the low statistical probability of monozygotic twinning: one in 240 live births. . . . Critics also point to evidence that twinning results, not from an intrinsic drive within the embryo, but from a disruption of the fragile cell dynamics of embryogenesis. . . .
Nonetheless, for this reason, and for others (discussed below) having to do with the formation of the nervous system, the primitive streak has often been taken to be a highly significant marker of embryological development, and many commentators suggest it as a reasonable candidate for a meaningful point of discontinuity. For this reason, many supporters of embryo research regularly propose the 14th day of development as a logical stopping point for permissible embryo research.
(b) Nervous system: A second argument for discontinuity focuses on the developing nervous system. Many observers regard the nervous system as an especially important marker of humanity, both because the human brain is critical for all “higher” human activities, and because the nervous system is the seat of sensation and, especially relevant to this case, the sensation of pain.
Proponents of this view hold that before an embryo has developed the capacity for feeling pain (or, in some forms of the argument, before sentience), we cross no crucial moral boundary in subjecting it to destructive research. For some, this is taken to mean that the primitive streak, as the first marker of a future nervous system, is a crucial feature of developing life. For others, only later points of neural development (where pain might plausibly be experienced) are held to be decisive. Critics meanwhile contend that neural development as well as development of other systems (such as the cardio-vascular system) are the natural outcome of the genetic program in action, and should be explained by reference to the previous stage and as leading to the subsequent stage, rather than marking a significant discontinuity. They maintain that the human being is, from the start, an inseparable psycho-physical unity, rather than a pure rationality or consciousness that exists with no meaningful ties to our bodies. From a scientific perspective, such critics hold, there is no meaningful moment when one can definitively designate the biological origins of a human characteristic such as consciousness, because our mind works in and through our body, and the roots of consciousness lie deep in our development. The earliest stages of human development serve as the indispensable and enduring foundations for the powers of freedom and self-awareness that reach their fullest expression in the adult form. Some of those who believe that neural development is crucial, however, argue that the fact of non-sentience and of an inability to experience pain possess great moral significance, quite apart from the question of probable potential.
(c) Human form: Some observers also argue that certain rudimentary features of the human form must be apparent before we can consider a human embryo deserving of protection. In this view, the human form truly signals the presence of a human life in the making and calls upon our moral sentiments to treat the being in question as “one of us.” Different versions of this argument appeal to different particular elements (or combinations of elements) of the human form as decisive, but all suggest that a “ball of cells” is not recognizably human and therefore ought not to be treated as simply one of us. Some critics of this view argue that humans have different external forms or shapes throughout their lives, and that an organism, particularly in its early stages, should not be judged by its external shape, but rather by its biological constitution, and especially its genetic identity. But adherents of the argument that human form matters contend that genetic identity cannot simply be decisive of moral worth.
These various particular cases for discontinuity (and these are not the only ones that have been propounded over the years) are not mutually exclusive. Indeed, many of them point to more than one particular element of early human development as finally decisive of moral standing. But they share the belief that moral status accrues only at some later stage of the developing human organism. Their claim, in the broadest terms, is that in its earliest stages a human embryo is not yet simply a human being or a human person, and that it need not be treated as though it were. . . .
Nonetheless, the case for developing moral status, as articulated by a great number of participants in the policy debates of the past several years, often results in an expression of what has sometimes been termed the “special respect” approach to human embryos: an embryo in its earliest stages is not accorded the full moral standing of a human person, but it is nonetheless regarded as deserving some degree of respect and is treated as more than a mere object or collection of somatic cells in tissue culture. In practice, adherents of this view tend to accept the use of early human embryos in medically valuable research under some circumstances, but they seek to apply some scrutiny to the reasons for which embryos will be used, the circumstances under which those embryos are obtained, and other relevant factors. . . . The special respect position has been held by its advocates to be consistent with a range of possible particular policies on embryo research, including fairly restrictive ones, and indeed could be held consistent even with an outright restriction on the destruction of human embryos. To consider the embryo “inviolable” (and therefore not a mere utility to be instrumentally used), it is not necessary to presuppose its moral equality with a child, an adult or even a later stage gestating fetus. There may be increasing moral obligations (and natural sentiments) associated with a deepening relationality that extend moral duty without in any way implicitly eroding an imperative of protection at earlier stages of developing life. Most of those who have articulated the special respect position in the public debate have, however, tended to then argue that some research on embryos should be permitted within certain boundaries, even if they have not always agreed on the permissible extent or the appropriate boundaries.
SPECIAL CASES AND EXCEPTIONS
Some arguments in favor of permitting and funding embryo research, grounded in the “special respect” approach, do not in fact explicitly (or exclusively) rely on arguments about discontinuity or a biologically grounded view of developing moral status. Instead, or in addition, they rely upon questions of embryo viability and potential, and they are aimed at exploring unique circumstances to address and perhaps resolve questions of the moral standing of certain particular human embryos.
In Vetro Fertilization “Spares”
Much of the debate surrounding embryonic stem cell research has focused on the use of cryogenically preserved IVF embryos, left over from assisted reproduction procedures and stored, perhaps indefinitely, in the freezers of IVF clinics. One recent study suggests there are hundreds of thousands of such embryos in the United States alone, though only a very small percentage of them (less than 3 percent, approximately 3,000 or more) has ever been donated for research. Although all were produced with reproductive intent and were stored for further reproductive efforts should the first attempt fail, most of these frozen embryos may never be claimed by the original egg and sperm donors for use in assisted reproduction procedures. They are almost certain to remain frozen and, eventually, to die without developing further. Although there have been some efforts to build interest in adopting such embryos, such adoption, some commentators argue, is very unlikely to become a large-scale phenomenon or to affect the fate of most of these stored embryos. Under the present funding policy, if these frozen embryos were donated for research and embryonic stem cells were derived from them, research on the resulting cells would not be eligible for federal funding. Many observers argue that it should be: Since these particular embryos are almost certainly destined to die without ever developing, it would be appropriate to at least redeem some possible good from their existence and unavoidable demise.
Some people have pushed the point further. Since the vast majority of the (huge number of) cryopreserved embryos will almost certainly not be adopted, and since many may not be viable even if they were to be transferred to a woman’s uterus, a few observers have argued that, practically speaking, the frozen embryos are virtually all already lost. To be sure, they are not already dead, but they are in a so-called “terminal situation” from which no rescue is practically possible. In view of this situation, one commentator proposes extending to these embryos the principle that sometimes, he argues, permits the killing of innocents. That is, killing may be morally permissible in cases where the person will soon die for other unavoidable reasons and where there is another person who can somehow be rescued through or as a result of such a normally impermissible act of killing (thus, as he puts it, “nothing more is lost”). He admits that the case of cryopreserved embryos stretches the application of the “nothing is lost” principle beyond its previous uses, because the embryos in question are alive and at risk of death only because of human choices and designs specifically directed toward them. The principle is also stretched because the lives that might someday be saved through today’s embryo deaths are quite remote. The potential lives saved are those of unspecified future persons with diseases that might be treated by therapies that as yet do not exist and may or may not exist in the future. However, against the weight of all these ifs, which some find formidable, there is the present fact that (like the embryos used to create stem cell lines derived before August 9th of 2001) the cryopreserved embryos are already here, with little or no prospect of rescue—they are, in this observer’s description, already lost.
Presumably, if destruction of “spare embryos” for human embryonic stem cell research were generally agreed to be permissible through this “nothing is lost” principle, it could be federally funded, subject to such routine secondary considerations as the need for free and informed consent by donors.
Yet this argument, not surprisingly, has met with opposition. Some critics have claimed that it employs circular moral reasoning. The embryos, they argue, are in a “terminal situation” because of human choice and design; thus to then decide that, since they are going to die anyway, they may as well be put to good use is to ignore the moral implications of the original decision to create and freeze them. Critics argue, moreover, that when thinking about our responsibilities to those who are soon to die, we would normally say that it makes a considerable moral difference whether we simply accept their dying or whether we positively embrace it as our aim. Yet some proponents of using IVF spares argue that the present situation is best understood as a forced choice between two regrettable alternatives for the final disposition of stored embryos (whether donated for research or abandoned). One choice may then be justified as the lesser evil. Even if one deems the original decisions leading to the creation and storage of these embryos questionable, the embryos exist, and the earlier decisions cannot be undone.
Some have also worried about the possibility of a “slippery slope,” by which the uses of “spare” IVF embryos under this justification might open the door to their wider use in experiments in natural embryogenesis, toxicological studies or chimerizations, or perhaps their development in an artificial (or natural) endometrium, (though the reasonableness of “slippery slope” arguments is often disputed). Other critics point out that the “nothing is lost” principle is not permitted to govern decisions regarding lethal experiments on the terminally ill, on death-row inmates, or even on fetuses slated for abortion. . . .
Other observers, however, begin from the presence of cryogenically preserved embryos but extend further the argument justifying their use in research. They argue that there is good reason to use embryos for research, not only because a situation some judge tragic already exists but because donating embryos is an act of beneficence and using them is a social obligation incurred by their gift. This approach would have us start by recognizing that, in the current situation, there is a set of embryos (in IVF clinics) none of which will ever enter a uterus, or even a (still hypothetical) artificial uterus. These embryos, in one commentator’s term, are “unenabled” and have no potential for full development. Since there is no possible way for such embryos to develop, there is no “possible person” to whom any “unenabled” embryo corresponds; therefore using them in research involves no loss of possible life.
Critics of this approach argue that in effect it allows the moral standing of any given embryo to be decided simply by those responsible for it. Thus, whether a given embryo has moral standing depends only on whether it has a practical prospect of developing, as evidenced by whether it will be transferred to a uterus. But whether it enters a uterus depends on human choices, so the moral standing of a given embryo depends on human choices. If we choose to withhold essential enabling conditions for an embryo’s development, these critics argue, then that embryo will lack not moral standing but merely the opportunity to develop. Its intrinsic nature, including its own potential to develop (given needed conditions), has not changed. . . .
Natural Embryo Loss
Some authors tie their moral arguments regarding the use of embryos in research to the fact of the high rate of embryo loss under natural conditions of sexual intercourse and unassisted reproduction. They argue that directed destruction of ex vivo embryos for the purpose of research would not result in greater embryonic loss than occurs in this natural process and would result in far greater benefits for humanity. The rate of natural embryo loss after conception in unassisted human reproduction (taking in losses both before and after implantation), though not accurately known, is thought to be high, some suggest as high as 80 percent. Moreover, the fact of natural loss is now fairly well known, so that persons who engage in unprotected intercourse, whether seeking to reproduce or not, are knowingly bringing about the conception of many embryos that will die. We generally do not regard this embryo loss as unacceptably tragic, and we do not engage in great efforts to avert it or to find ways to diminish it (beyond research to prevent miscarriage, for instance). For this reason, these commentators argue, using artificially created embryos for purposes of research would not destroy a greater portion of those embryos than ordinarily die in natural unassisted reproduction.
Moreover, they suggest, the high rate of natural embryo loss should call into question the views of those who believe that early-stage human embryos merit equal treatment with human children and adults. If so many die in the natural course of things, why do we not treat natural procreation as a great fountain of tragedy and carnage? The natural rate of embryo loss, and most people’s failure to mourn its consequences, they suggest, should teach us something about the limited significance of human embryos in the earliest stages. One observer adds that the same logic should diminish our concerns about creating extra human embryos for research, as long as sufficient embryos are created for implantation to keep the chances of survival for any given embryo as good as the chances in natural reproduction. Another argues further that human embryonic stem cell research might actually raise the probability of longer survival for all humans, including embryonic ones, and is therefore a case of permissible taking of life, even on the assumption that the embryos are persons.
Opponents of this view, however, have argued that natural deaths of embryos and the deaths caused by intentional efforts to destroy ex vivo embryos for research are not morally equivalent. There are many things that happen naturally that we are not therefore justified in doing deliberately. Indeed, the rate of natural loss of live-born human beings is 100 percent [i.e., everyone will eventually die], but that does not justify their killing. And, they argue, even if one were permitted to analogize the deaths of frozen embryos in vitro to the embryonic wastage in vivo, in neither case were the embryos lost destined or created for anything other than their procreative end. In contrast, they argue, using embryos for research bears no relation to their natural direction or trajectory. Critics also argue that the character of our reaction to the natural embryonic death does not justify our practice of destructive embryo research. For they believe that a creature’s moral worth is not dependent on the emotional reaction of others to its death. The absence of moral sentiment does not imply an absence of moral obligation (nor a right of adverse intervention in a naturally developing human life). Moreover, critics contend, it is not clear how many of these “natural losses” were in fact failures of the fertilization process, so that there was never a unified, integrated organism in the first place, and thus never the loss of a human embryo. It is also unclear, they argue, how much of the supposedly “natural” loss rate is actually due to contingent and changeable factors, such as environmental pollution, pesticides, or endometrial problems, and so is not simply an unavoidable fact of embryonic existence.
Prediction of Non-Viability of Embryos
Some people, hoping to get around the moral dilemma of destroying even “unenabled” embryos, seek to identify a subset of embryos that might reasonably be regarded in advance as non-viable. One proposal has involved the possibility that cloned human embryos, created by somatic cell nuclear transfer, may prove to be non-viable or unable to develop beyond a certain point . . . or may even, by their nature and origins, simply not constitute the equivalent of human embryos. If this turns out to be true, it is further argued, it might be possible to use them without arousing some of the ethical dilemmas that accompany the use of otherwise potentially viable human embryos. Others point to a possible sub-group of those embryos currently frozen in storage as potentially non-viable. Although those embryos are not yet dead and, if thawed, would still exhibit some cellular function, some would be unlikely to survive even were transfer attempted. Since IVF procedures usually produce more embryos than can be transferred at one time, goes the argument, the clinicians choose for transfer those among the available embryos that look “the best” and seem most likely to survive and develop—so that those that are frozen are those deemed less likely to develop. Moreover, by applying similar judgment to the unimplanted embryos, we might identify those that would be least likely to survive even under the most favorable circumstances. These embryos might then reasonably be regarded as non-viable and therefore available for research since their use will not disrupt a potential life.
There has not been much direct reaction to this view in the ongoing ethical debates. Yet some observers have noted, in other contexts, that the techniques used to identify which IVF embryos are more or less likely to develop successfully—estimates based usually on visual assessment of the embryos—have never been proven effective or even tested to ascertain their validity. Moreover, some argue, the true viability of cloned human embryos or of cryogenically stored embryos could not be determined in advance without attempting to implant them.
Creation of Non-Viable Embryo-Like Artifacts
Others, seeking to bypass altogether the issue of viability, propose the possibility of creating a biological entity that cannot rightly be called a living organism, yet that has the generic organic powers necessary to produce embryonic stem cells. They suggest that somatic cell nuclear transfer, or a similar technique, could be used to create an entity that lacks, by design, the qualities and capabilities essential to be designated a human life in process. By intentional alteration of the somatic cell nuclear components or the cytoplasm of the oocyte into which they are transferred, researchers may be able to construct an “artifact” that is biologically (and morally) more akin to cells in tissue culture, but could still provide a source of functional human embryonic stem cells. Proponents of this innovation aim to shift the ethical debate from the question of whether or when a human embryo should be considered a human being to the question of which organized structures and potentials constitute the minimal criteria for considering an entity to be a human embryo. . . . By technically constructing biological entities lacking these essential elements yet bearing the partial organic potential often found in failures of fertilization, they suggest it may be possible to procure embryonic stem cells without producing an organismal or embryonic entity that can meaningfully be designated a being with moral standing. . . .
This proposal has drawn criticism on several fronts. First, critics suggest, it would require significant research to ensure that the procedure reliably produced the desired sort of “non-embryonic” entity yet also still yielded normal human embryonic stem cells, and such research might itself be morally problematic. Second, this proposal raises a series of further scientific and ethical questions, including those regarding the minimal degree of “partial generative potential” for an entity to be considered an organism, and for an entity to be considered a human embryo. They point further to the risk of creating entities that are so ambiguous as to leave their moral standing in serious doubt, at least for those people who believe that the early stages of human life have at least some moral worth. Finally, proposals to use human oocytes [i.e., immature egg cells] raise moral concern regarding the source of supply, in this case as in the larger arena of in vitro fertilization and experimentation.
Although this approach has never been tested in humans, animal experiments suggest it has potential, and it has begun to play a part in the debates over the moral standing of human embryos and the permissibility of embryo research more generally.
Source: The President’s Council on Bioethics, Monitoring Stem Cell Research (2004), Ch. 3.
Questions for Review
1. In the section on “The Case for Continuity,” what are the criticisms of the continuity argument
2. In the section on “The Case for Meaningful Discontinuity”, what are the criticism of the three proposed natural boundaries?
3. In the section on “In Vetro Fertilization Spares”, what are the criticisms of using IVF embryos?
4. In the section on “Natural Embryo Loss”, what are the criticisms of devaluing embryos based on the high rates of miscarriages?
5. In the section on “Creation of Non-Viable Embryo-Like Artifacts,” what are the criticisms of using such biological entities in research?
Questions for Analysis
1. The continuity argument rests heavily on the notion of genetic identity. Evaluate that argument.
2. According to defenders of discontinuity, there are three natural boundaries. Which, if any of these, is a reasonable designation for the emergence of moral personhood?
3. Explain the “special respect” position and discuss whether it justifies the use of embryos in research.
4. Discuss whether natural embryo loss is relevant to the issue of embryonic personhood.
5. The use of non-viable embryo-like artifacts is the least morally problematic option regarding research embryos. Still, there are critics of this position. Are any of those criticisms compelling? Explain.
FETAL PAIN: PRO AND CONTRA
Jean A. Wright and Arthur Caplan
Since the ruling of Roe v. Wade, there have been continual efforts of governmental bodies and special interest groups to overturn it or at least minimize its impact. One such effort is reflected in the recent debate over fetal pain. Are fetuses physiologically capable of feeling pain? If so, then shouldn’t pregnant women know about this before having an abortion? On these grounds a 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. The ultimate aim of the statement would be to discourage these women from having abortions. The selections below are by two witnesses at a Congressional hearing on the issue. In favor of the informed consent statement is Jean A. Wright, physician and Professor of Pediatrics at Mercer School of Medicine. According to Wright, a growing body of research indicates that fetuses are physiologically capable of experiencing pain after 20 weeks of gestation. Just as physicians now give pain relief medication to premature infants as young as 23 weeks of age, so too should consideration be given to their unborn counterparts. Women, she argues, are entitled to know whether a medical procedure will be painful for their fetuses, and whether there are steps to alleviate the pain; the informed consent statement plays this role. Just as knowledge of fetal pain has changed clinical practice, the legislative issues must change as well. Against the informed consent statement is Arthur L. Caplan, Professor of Bioethics at the University of Pennsylvania. According to Caplan, there is no medical consensus about when the fetus becomes pain-capable, various studies placing it at 28 weeks, 26 weeks, 24 weeks, and even earlier. It would be a bad precedent for governments to “mandate disclosures about ‘facts’ for political or even ethical reasons which have no foundation in science or medicine.” In no other area of health care has government mandated the content of informed consent, and it is hard to justify a fixed script since every patient is different, since all situations are different.
JEAN A. WRIGHT: PRO
Extension to Care in the Neonatal Intensive Care Units
. . . .Today, if you walk with me in our neonatal intensive care unit, you will see the same concern [to relieve pain in newborns also] exhibited for our tiniest of all infants. The concern about how to block pain, how to eliminate stress, how to improve survival, and how to minimize the complications that frequently accompany premature infants is on the forefront of the care-givers mind. Viability for the premature infant has long since passed the 28 week gestational age definition that existed when Roe v. Wade was decided. For some infants, viability has been pushed back to 23–24 weeks. And so many of our neonatal units now have infants of 23 weeks and older gestational ages.
Because of the work of many researchers in the fields of pediatric anesthesia, their scientific inquiry led to a change in practice. Early in the 1990’s, many neonatal units considered the infants too weak or sick for pain-relieving medications. Our previously held assumptions are replaced with first hand observations of these tiny patients, with monitoring of the hormones released from the neuro-humoral axis (our fight and flight hormones), and with a clearer understanding of the development of pain pathways in the fetus. We invest in expensive beds to eliminate noise and pain, and in a care plan that minimizes painful sticks and pokes. We now regard even the pain of a simple heel stick for a routine blood sample. In the early 1990’s many neonatal intensive care units did not have uniform approaches to minimizing painful events, or pre-treating infants prior to painful and stressful procedures. Today they do. We are so mindful of even the stress of noise and touch, that neonatal intensive care units monitor the sound level, and minimize the number of times an infant is handled, poked or stress, . . . all in the name of decreasing pain and stress, and improving clinical outcomes. We respect the pain and the stress, we do everything we can to avoid it, and we treat it when present. Today, pain relief is an important step to generating a healthy outcome. Today with the survival of 23 and 24 week infants, we no longer speculate as to whether they feel pain. We understand it, try to avoid it, and treat it when appropriate.
The Disconnect Between Pain in the Neonate and Pain in the Fetus
With the knowledge explosion in the field of pain development in the fetus, the world of pediatric anesthesia and neonatal intensive care changed. Why did this same information not change the world for the unborn? To regard pain in the unborn required that we consider pain during in utero surgical procedures, but also pain to the unborn during an abortion. Furthermore to recognize the unborn’s ability to perceive pain would require that we disclose that information to the mother prior to the procedure as part of the informed consent. Perhaps, with that information at hand, the mother might change her position regarding an abortion for her unborn. Therefore the scientific information regarding pain in the unborn was not integrated with the dialogue around the procedures of abortion.
In the mid 1990’s the discussion around partial-birth abortion broke the sound barrier around fetal pain. A discourse followed around whether the infant felt pain, whether maternal anesthesia could or would treat the pain, and whether informed consent for the procedure should disclose the possibility of pain to the unborn. Discussions on partial birth abortion brought into focus the developmental realities of the infant in the 3rd trimester, and juxtaposed that stage of human development with its ex-uterine counterpart, the preterm infant. Further scientific discoveries over the past decade have only served to underscore the anatomy and physiology of the pain pathways in the unborn and preterm infants. Now several states have begun to wrestle with the legislative aspects of both protecting their most vulnerable subjects from pain, and from informing their mothers of its presence and its need for treatment.
The Role of Informed Consent
As a mother myself, every procedure I face with my own child is preceded by her first question, “Mommy, will this hurt?” It is my natural maternal response is to try to avoid all forms of pain and suffering for my child. As a parent I want to know about the possibility of pain, and my child (if old enough) wants to know as well. But for the child unable to speak, or unable to understand the upcoming flu shot or laceration repair, the parent stands in the gap gathering clinically relevant information, and exercising prevention and protection against harmful or painful situations. It is our question to ask, “Will my child feel pain?”
Parents are entitled to this information for their children. They need it explained in a clear and meaningful way that they as laypeople can understand. This standard exists for children born; now we raise the standard and ask that it exist for those unborn. “Will this surgery or procedure on my premature baby cause pain? What will be done to alleviate the pain and suffering?” We should answer those questions as clearly for procedures concerning the unborn as the born.
What will we Tell Them?
Beginning as early as 6 weeks of development, tiny pain fibers pepper the face and oral mucosa. The spread of these unique fibers proceeds in a head to toe fashion until by the 20th week, they cover the entire body. Not only do these fibers exist, they do so with greater density per sq inch than in the adult.
These fibers will connect with the spinal cord, and then connect with fibers that ascend to the thalamus and cortex. By the 10–12th week, the cortex is developing, and by the 15th week, the fibers from below have penetrated into the cortex. Studies at 16 weeks and beyond show hormonal responses to painful stimuli that exactly duplicate the responses that the infant and adult possess. The critical difference is that the unborn lacks the ability to modulate itself in response to this pain. Therefore, the responses of hormones to painful procedures show a 3–5 x surge in response. This ability to down-regulate the response in light of painful stimuli will not exist until the unborn child is nearly full term in its gestational age. Further studies demonstrated that the magnitude of pain response reflected the magnitude of the stimulus and blocking the pain receptors with narcotics, blocked the hormonal surge. By 19–20 weeks, EEG recordings are readily documented, and somatosensory evoked potentials (SSEP) are seen by 24 weeks.
After 20 weeks of gestation, an unborn child has all the prerequisite anatomy, physiology, hormones, neurotransmitters, and electrical current to “close the loop” and create the conditions needed to perceive pain. In a fashion similar to explaining the electrical wiring to a new house, we would explain that the circuit is complete from skin to brain and back. The hormones and EEGs and ultrasounds record the pain response, and our therapies with narcotics demonstrate our ability to adequately block them. Therefore, any procedure performed on an unborn child after 20 weeks should take this into consideration. “Can the unborn fetus feel pain at this stage of development,” we would be asked. “Is there something that can be given to alleviate the pain?” And we would answer, “Yes,” to both.
Why Isn’t Treating the Mother Enough for the Child?
Most obstetrical anesthetic care plans use spinal, caudal, epidural or other forms of nerve blocks to interrupt the cause of pain and the perception of pain. We refer to this as regional anesthesia. The sensory nerves that innervate the abdominal wall and the lower pelvic structures are anesthetized in the same manner that a tooth is numbed by a nerve block with Novocain at the dentist. The mother’s specific nerves, or nerves that innervate the perineum, are blocked by these regional anesthetic techniques. While this serves as excellent anesthesia for the mother, it provides no anesthetic relief to the unborn child.
Advances in intra-uterine surgery have required more detailed thinking about pain management of the unborn during these operations. In essence, two anesthetics are planned. One for the mother and one for the unborn child. If an intravenous anesthetic is used, such as a narcotic, it must go through the mother’s circulation, and then enter the fetus’ circulation, and the reach the fetal brain, in order to achieve pain relief. Dosing via this route must be such to achieve a safe level of anesthetic in the unborn. Similarly, doses of narcotics may be given directly into the amniotic sac, or into the vein of fetus. Experience with premature infants shows us that the dose of narcotic is small, and can be given safely, and is inexpensive, and is effective in blocking pain and improving outcomes.
The development of the perception of pain begins at the 6th week of life. By 20 weeks, and perhaps even earlier, all the essential components of anatomy, physiology, and neurobiology exist to transmit painful sensations from the skin to the spinal cord and to the brain.
Infants in the neonatal intensive care unit give us a clear picture into life in the womb for the unborn fetus age 23–40 week gestation. Our understanding of the presence of pain, and the need to clinically treat this pain in the premature infant leads us to understand the presence of pain, and the need to treat pain in the unborn fetus of the same gestational age.
Our conscience as clinicians requires us to apply the same standards of informed consent that we would to any other patient in a same or similar situation. We no longer can ignore the fact that maternal anesthesia treats the mother’s pain perception during these procedures, but leaves the unborn with no pain protection. Our knowledge of this field has changed our clinical practice and now the legislative issues must change as well.
ARTHUR L. CAPLAN: CONTRA
Thank you Mr. Chair and members of this Committee for the opportunity to testify before you on the proposed legislation which would require that women seeking abortions be informed about the pain to be experienced by their unborn child. My opinion is that this is not legislation that the House should enact. I will present a number of ethical issues that the committee may wish to consider as it examines this legislation.
I will organize my testimony as follows: first, I will address the presumptions behind the proposed legislation and the comment on what is known or in dispute about those presumptions, second, what informed consent requires in terms of risk and benefit disclosure, third, I will offer my opinion as an expert on the ethics of informed consent on the advisability of enacting legislation which mandates the content of a script to be read to patients by their physicians, and, lastly, I will offer some comments on the advisability of Congress inserting itself into the practice of medicine in the United States and the morality of intruding into the doctor/patient relationship.
The proposed legislation before the House contends that unborn “children” have the physical structures necessary to experience pain at the age of twenty weeks of development. There is also a contention that giving anesthesia or analgesics to a pregnant woman does not diminish the pain capacity of an unborn fetus. And it maintains that medical science is capable of reducing fetal pain by delivering anesthesia or pain-reducing drugs directly to the “pain capable unborn child.”
These are the findings used to then justify an unprecedented requirement in the history of American medicine—the provision by telephone or in person of a required statement by a physician or the physician’s agent to offer the option of the use of anesthesia or pain-reducing drugs “to the pain capable unborn child.”
The question this committee must carefully consider is whether there is as a matter of empirical fact consensus about when a fetus is capable of feeling pain. If the rationale for mandating disclosure about techniques to minimize fetal pain prior to abortion rests on science and not the whim or presumption (and I use those terms intentionally) of non-scientists and non-physicians then there must be clear consensus on the part of the medical profession that at twenty weeks a fetus is pain capable.
This is an enormous body of evidence which shows that the presumption of medical consensus does not exist about the question of when a fetus becomes pain-capable.
A variety of groups and commissions in the United Kingdom and researchers in the United States and other nations have, in recent years, examined the question of when a fetus can feel pain. None of them has reached a consensus that is reflected in the proposed legislation.
For example, five years ago the Commission of Inquiry into Fetal Sentience in the House of Lords in England looked at the question of when can a fetus feel pain. They found that a fetus may be able to sense some “form of pain sensation or suffering” when the cortex has begun forming connections with the nerves that transmit pain signals.
This occurs “after 23 weeks of growth.”
“By 24 weeks after conception the brain is sufficiently developed to process signals received via the thalamus in the cortex.” They noted that, “While the capacity for an experience of pain comparable to that in a newborn baby is certainly present by 24 weeks after conception, there are conflicting views about the sensations experienced in the earlier stages of development.”
A year later another distinguished group of physicians from the Royal College of Obstetricians and Gynecologists in the United Kingdom examined the same issue. The panel consisted of experts in fetal development, law and bioethics.
The group determined that a fetus can only feel pain after nerve connections became established between two parts of its brain: the cortex and the thalamus. This happens about 26 weeks from conception. Professor Maria Fitzgerald of University College London, author of the working group’s report, said that “little sensory input” reaches the brain of the developing fetus before 26 weeks. “Therefore reactions to noxious stimuli cannot be interpreted as feeling or perceiving pain.” W.G Derbyshire writing in the Bulletin of the American Pain Society in August, 2003 basically concurred with the view that the fetus becomes pain capable at 26 weeks.
This year a meta-study—a review of existing medical studies into fetal pain—was published in the Journal of the American Medical Association (JAMA). The paper concluded that in reviewing all recent published studies that a fetus’s neurological pathways that allow for the “conscious perception of pain” do not function until after 28 weeks’ gestation.
It is possible to criticize each of these studies and reports. And there are many more such reports and studies with different conclusions. But that is precisely the point the Congress must carefully reflect upon before enacting any legislation pertaining to fetal pain.
There is no consensus among the medical and scientific experts about precisely when a fetus becomes pain-capable. Some put the point at 28 weeks. Others say 26 or 24 and still others younger still. But, without a clear consensus legislation mandating that a health provider or physician represent something as a fact which is not known to be true or agreed upon by the majority of medical and scientific experts as valid would not only be poor public policy it would set a terrible precedent for other topics where Congress might choose to mandate disclosures about “facts” for political or even ethical reasons which have no foundation in science or medicine.
Mandating the provision of information as factual or as the standard of care or as a matter of consensus among experts when the information is none of these could open the door to an enormous slippery slope regarding what those seeking health care are told. In order to achieve political ends even well-intended ends it is exceedingly dangerous as history shows to try and bend science to serve political goals.
Consent, Risk and Benefit
If Congress decides to mandate the provision of information to women about fetal pain prior to abortion then it will have to carefully consider the content of what is being mandated and whether it adequately reflects the standards of full disclosure of risk and benefit as well as the provision of information about all options and alternatives.
In creating a standard of disclosure about fetal pain and the use of anesthesia it will be necessary to disclose whether or not existing techniques are known to relieve fetal pain, at what age of fetal development and what evidence exists to support such claims.
In notifying women that anesthesia administered to them will not provide pain relief to their fetus again it will be necessary to state with more clarity then appears in this legislation why that is held to be so as a matter of medical consensus and what the probability is of the statement being wrong. Informed consent will also require a more careful and precise delineation of the risks of anesthesia to the woman if it is directly administered to the fetus. The risk of fetal anesthesia is usually viewed as trivial since they are usually encountered during efforts to use surgery to repair a life-threatening risk to the fetus. They become far less trivial when placed in the context in which death to the mother becomes a possibility with uncertain benefit to the fetus. And some discussion will have to be had about the risks to the woman’s health of continuing various stages of a pregnancy versus terminating them depending upon her own health and medical condition.
None of these elements of risk and benefit appear in the mandated information to be disclosed by the proposed legislation. I doubt whether there are many IRBs [i.e., Institutional Review Boards] in the nation which would approve the content of the disclosure as adequate to the standards of informed consent that have come to be expected for new, innovative and untested procedures in medicine.
Mandating the Content of Informed Consent
One of the most troubling aspects of the proposed legislation is the concept of the government requiring a mandated script or formula be used to secure informed consent in a doctor-patient relationship or health care provider-patient relationship. I know of no other area of health care where Congress or a state government has mandated the content of informed consent.
It is hard to justify a fixed script since every patient is different, not all pregnancies are alike, not all fetuses have the same capacities at the same age of development and not all women face the same set of risks or have the same ability to understand and process information. Informed consent is not a formula—it is an individualized communication between provider and patient. To mandate that one size will fit all when it comes to the issue of fetal pain and what might be done about it is to fly in the face of decades of medical experience about informed consent as well as numerous court cases in which judges have found that simply reading a piece of paper or running through a standard template does not satisfy the requirements of informed consent.
Interference with the Practice of Medicine and the Doctor/Patient Relationship
It is my opinion that mandating the specific nature of what must be communicated to a woman considering an abortion or any other medical procedure is an unwise interference with the practice of medicine by Congress. One may well wish to discourage women from choosing abortions but forcing providers to read claims about fetal pain is showing no respect for the ability of the medical profession to present information about pregnancy, abortion and fetal pain to women. Moreover, since different physicians hold different views about fetal pain and about the ability to control that pain and since different providers will have different skills when it comes to the safe administration of anesthetic agents or anesthesia to women or fetuses it is overreaching for Congress to insist on precisely what each provider must say to each woman prior to an abortion or any other medical procedure.
In summary there are many issues this committee and Congress must consider before moving forward with the proposed legislation on Pain of the Unborn. There is no consensus among experts about when a fetus becomes pain capable. There is no consensus about the efficacy of existing agents to relief pain in a fetus. There is no single standard that can be set as to what the risks are of attempting to administer pain relief directly to a fetus. This makes it difficult for Congress to claim a sufficient foundation for claims about the pain capabilities of the fetus at various stages of development.
It is also difficult for Congress to mandate the content of informed consent without reducing consent to the provision of a “boilerplate” set of facts—something which we have been advising doctors not to do in the name of informed consent for many decades.
And even with the best of motives intruding into the doctor-patient relationship when the facts are unclear and the risk unknown opens the door to slippery slope with enormous ramifications for the future practice of medicine. This is a door that ought be opened with the greatest of care and caution if at all.
Source: U.S. House of Representatives, Committee on the Judiciary, subcommittee hearing on Pain of the Unborn, November 1, 2005.
Questions for Review
1. What does Wright say about current pain-reduction efforts with premature infants?
2. According to Wright, what are some of the physiological processes are in place by week 20 that enable a fetus to feel pain?
3. According to Wright, what is the scientific consensus about when fetuses can feel pain?
4. According to Caplan, what information must an informed consent statement about fetal pain contain?
Questions for Analysis
1. Would fetal pain be a serious moral concern if it wasn’t for its role in the abortion debate? Explain.
2. Assume that the intended goal of an informed consent statement about fetal pain is to have a woman change her mind about getting an abortion. Does this interfere with a woman’s legal right to an abortion? Explain.
3. According to Caplan, “it is exceedingly dangerous as history shows to try and bend science to serve political goals.” Would fetal pain legislation do this? Explain.