From Moral Issues that Divide Us
In vitro fertilization and stem cell research
What People Think
Human Soul and the Right to Life
Criterion of Personhood and the Right to Life
Potentiality Argument and the Right to Life
Biological Continuity Argument and the Right to Life
Balancing the Fetus’s and Woman’s Rights
Public Policy Issues
Supreme Court Decisions on Abortion
Common Arguments Pro and Contra
The Conservative Position
The Liberal Position
A Middle Ground
Reading 1: Roe v. Wade (U.S. Supreme Court)
A sixteen-year-old girl named Jenny got pregnant by her high school boyfriend. She kept the news from her father who was a stern Baptist pastor. Jenny was raised with the conviction that abortion was murder and, knowing her father’s condemnation of premarital sex, she couldn’t confess her pregnancy to him. Trapped by two unthinkable alternatives, she ignored the situation until it was too late and she secretly gave birth in her bedroom. She then panicked and felt that disposing of the baby was the only way to make her problem go away. She suffocated the baby by closing it in a plastic bag and then putting it in a garbage can outside of a fast food restaurant. Shortly after, a restaurant worker discovered the dead infant and reported it to the police, who successfully traced it back to Jenny. Investigators considered that the baby might have died naturally before it was placed in the bag. They gave Jenny the benefit of the doubt without pushing the matter too far. She was not charged with a serious crime, and was only required to go to counseling.
Stories like this unfortunately occur too often, and they illustrate how women of all child-bearing ages are trapped by unwanted pregnancies, often with no easy path to resolving their crisis. Abortion is an option, and one resorted to by about 1 million women each year in the U.S. But this is a controversial option and, in fact, probably the most contentious moral issue we have today.
Perhaps the biggest mistake when looking at the abortion question is to assume that all abortions are the same. We might think that they are all immoral, or, on the other hand, that they are all morally permissible. The fact is, though, that there are perhaps 100 distinct abortion scenarios that differ regarding the fetus’s age and health, the mother’s life and health, and possible adverse impact on society. Ideally, each one of these scenarios should be assessed on its own terms before making a moral pronouncement. We will begin by looking at some of these factors.
Understanding the nuances of the abortion controversy requires some factual knowledge about abortion practices themselves, and a good place to begin is with some terminology about stages of fetal development and methods of performing abortions.
The nine month, or 40 week, fetal development process is commonly divided into three trimesters. In the first trimester the male sperm and female egg merge and become a single-cell zygote; through cell division, by the third day it grows to about 16 cells. Within a week the cell cluster attaches to the woman’s uterus and forms into what is commonly called an embryo. By the second or third week, it reaches the stage of gastrulation, where it reorganizes into three layers and can no longer divide to form identical twins. By the fifth week its brain begins to form, its heart begins to beat, and it takes on some external features of vertebrate animals. By the eighth week it is capable of some motion and its eyes begin to form. At the beginning of the second trimester, at around 13 weeks, the embryo is from thereon referred to as a fetus and is about an inch and a half in size. As the fetus continues to grow, by week 16-20 the woman can feel some fetal movement, an event called quickening. By the beginning of the third trimester, at around 26 weeks, the fetus begins to exhibit regular brain wave patterns, and not just small bursts of brain activity. It is about 8 inches long and is sufficiently developed so that it could possibly survive premature birth, which is called viability. The fetus continues to grow throughout the third trimester, and by weeks 35-40, at around 20 inches, it is fully developed and ready for birth.
Only about half of fertilized human ova end in a live human birth, and unsuccessful ones miscarry, with miscarriage estimates ranging from 25% to 75%. Around three-quarters of these occur during the first trimester, and the majority of these fail to even implant, which is at such an early stage that the woman may have her period on schedule and not know that she miscarried. The high prevalence of miscarriages is the result of a natural screening process in the woman’s body, which rejects embryos that show indications of abnormalities. About half of these are genetic problems, and others are the result of low hormone levels in the woman. While the woman’s natural screening process filters out most genetically problematic fetuses, about five percent escape detection and ultimately result in the birth of infants with congenital problems, often very serious ones. The high rate of miscarriages itself has implications on the abortion debate, particularly regarding the abortion of seriously deformed fetuses. For example, one might argue that when the woman’s natural screening mechanism fails to detect a genetically problematic fetus, it is reasonable to intervene and terminate the pregnancy, just as the woman’s natural process would have if it was foolproof.
The term “abortion” as is typically used in the abortion debate refers to the intentional termination of pregnancy and expulsion of the embryo or fetus. Abortion methods vary, and may occur at virtually any point within fetal development.
The first possible pregnancy-termination method is the use of emergency contraception, commonly referred to as the morning after pill, which a woman might take within a few days of having intercourse. It consists of a drug containing high doses of hormones that disrupt the earliest stages of pregnancy in one of three ways. First, if the woman has not yet ovulated, it can prevent her from doing so while the sperm inside her is still active. Second, if the woman has ovulated, it can prevent sperm from fertilizing the ovum. Third, if the ovum is fertilized, it can prevent the zygote from implanting in the uterine wall, and thus prevent further development. It is only this third avenue that is a type of abortion, while the first two are types of contraception. The woman, though, is not in a position to know which of these is taking place. Emergency contraception is effective for only 72 hours after intercourse, and, consequently, if the woman is indeed pregnant, the zygote will at most be a microscopic cluster of cells. Emergency contraception is about 75% effective, and poses no risk to embryos which survive this method. The major practical disadvantage of emergency contraception is that it requires the woman to make a quick decision and have quick access to the drug. The reality, though, is that many women will not make such a decision and instead hope for the best. Further, access to emergency contraception may require a prescription, particularly for women under age 18, which in turn requires an appointment with a willing physician in a timely fashion.
If the woman misses the opportunity to use the morning after pill, the next possible method is an abortion-inducing drug called Mifepristone, more commonly known as RU486. Developed in France, and legalized there in 1988, it was eventually approved in the U.S. with much controversy in 2000, and is currently the mechanism for around one-fourth of the abortions in the U.S. Unlike emergency contraception, which at most prevents the Zygote from implanting on the uterine wall, RU486 can expel embryos that are already implanted. The drug functions by breaking down the uterine lining as it would during menstruation, thus expelling the fetus. While the window of opportunity for use of this drug is wider than that of emergency contraception, the timetable is still restrictive, and can be used only for about one month after the earliest point at which a woman could discover that she is pregnant through a pregnancy test. At the very most, the expelled embryo would be six weeks old. The practical disadvantages of RU486 are the same as those of emergency contraception. Even after one month the woman may still not be psychologically in a position to make the decision, and, again, timely access to a willing physician may be an obstacle.
Emergency contraception and RU486 both involve expelling embryos at very early stages. However, once embryos and fetuses grow in size, only surgical methods can be used to remove them, and the larger the fetus, the more intrusive the procedure is. The first of these surgical methods is vacuum aspiration, which can be performed at any time during the first trimester of pregnancy until week 12. One type of vacuum aspiration involves the use of a syringe to extract the embryo. The practical disadvantage of this approach is that it is a form of surgery, and although it is relatively safe with the whole procedure taking about 15 minutes, there is some risk of infection and uterine injury. At around $500, it is also more costly than drug-induced abortions. The next surgical method is dilation and curettage, which involves opening the cervix and scraping out the embryo with a curved instrument called a curette. It can be performed between 6 and 16 weeks of pregnancy. Use of this method is in decline now because of its higher costs and complication rate relative to the vacuum aspiration method. With fetuses between 15 and 20 weeks, a variation of this method is used called dilation and evacuation, which involves dismembering and removing the fetus piece by piece with forceps. A less frequently used method for fetuses older than 16 weeks is instillation, which involves injecting a chemical solution into the amniotic sac; the fetus absorbs it, causing it to die, and it is then expelled from the uterus.
Many of the above abortion methods are disturbing, particularly the later-term ones. For many people, such a sense of revulsion is enough to judge these abortion practices immoral. However, revulsion alone is not always a good indicator of an action’s moral worth. Consider, for example, the sense of revulsion that we might experience when witnessing similar abortion methods performed on pregnant animals, such as dogs, chimpanzees or elephants. There is something grizzly about the surgical procedures themselves that are inherently disturbing even when not performed on humans, and that must be factored into the equation. While there may be an important place for our emotional reactions when assessing moral controversies, they are not magical indicators of where the truth lies, and they should not override our more impartial reasoning on issues.
In Vitro Fertilization and Stem Cell Research
The abortion controversy directly impacts other issues in biotechnology, one of which is in vitro fertilization and stem cell research. In vitro fertilization, commonly referred to as test tube babies, involves fertilizing a human egg with a sperm outside the womb, typically in a glass container (“in vitro” meaning “in glass”). The procedure is a solution for women who for various reasons have difficulties conceiving. A woman is first given fertility drugs which stimulate her ovaries to drop several eggs. Up to ten of these are retrieved, injected with sperm, and, through cell division, each grows to contain about eight cells. After three-five days, up to three are implanted in the woman’s uterus, which increases the chances that at least one will succeed. The remaining ones are frozen in liquid nitrogen, where they can later be unfrozen and used by the mother in the future, thereby eliminating the financial expense of the first half of the in vitro fertilization procedure. If frozen properly, zygote clusters can last indefinitely, and one is known to have been successfully implanted after 13 years. When there is no longer a need for the remaining zygotes, they are destroyed. Currently there are around half a million frozen zygotes in the U.S.
While in vitro fertilization is now an established and largely reputable procedure, it still faces some moral opposition. One problem is with the creation of such a large number of zygotes, when, for one reason or another, only a small percentage will make their way to birth. Some of this problem might be counterbalanced by the fact that even normal pregnancies have an exceptionally high rate of miscarriages. That is, any attempt to get pregnant will involve a high failure rate. A second problem is that the large number of stored zygotes is largely a function of financial savings. It is more cost-effective to retrieve and fertilize 10 eggs at one time, than it is to do one on ten separate occasions. If creating frozen zygotes is something we should be cautious about, it seems wrong to create a surplus of them merely out of a desire for cost savings. A third problem relates to the decision to destroy the frozen zygotes when they are no longer needed, just as we might throw out a chair or a cup when we no longer need it. For the most part, the frozen zygotes are the property of the parents, which they can do with as they see fit.
A second issue in biotechnology that is closely related to the abortion controversy is that of stem cell research. Stem cells are a special kind of biological cell that in its current form has no specific function assigned to it, such as being a heart cell, brain cell, or bone cell. However, when placed in the right environment it can morph into any type of cell in our bodies. The specific kind of stem cell used in medical research is called a pluripotent stem cell, which suggests that they have the power to become many different things. Stem cells hold open the promise of curing the most devastating illnesses, such as Alzheimer’s disease. When placed in the brain, they sense their surroundings and can replace damaged brain tissue in the region. In and of itself, this is all good news. The controversy concerns where stem cells come from, and, as of now, the answer is human zygotes and embryos. Many come from unused frozen zygotes at in vitro fertilization clinics. The zygotes are around a week old consist of and 100 cells when they are adapted for stem cell research. Thus an otherwise promising course of research is compromised by the issue of the moral status of zygotes and embryos. This has impacted the availability of government funding of stem cell research, which is no small problem since the government is the main source of funding for most scientific research of all types. Almost weekly, though, advances are made in stem cell technology, many of which aim to produce them without deriving them from zygotes and embryos. So, the moral controversy surrounding stem cell research may soon be resolved by finding less controversial substitutes.
What People Think
The popular media often convey the impression that the country is radically divided between conservatives and liberals on the subject of abortion, where the two sides are engaged in an all out cultural war against each other. While that may be an accurate depiction of the attitudes of political commentators and members of abortion organizations, the nation as a whole appears to be more moderate about the issue and exhibits more overlap than we are often led to believe. Here, for example, are three national surveys which reflect this (from www.pollingreport.com):
Do you think abortion should generally be legal or generally illegal during each of the following stages of pregnancy? (12/27-30/12)
"In the first three months of pregnancy"
"In the second three months of pregnancy"
"In the last three months of pregnancy"
"In general, do you agree or disagree with the 1973 Roe v. Wade Supreme Court decision that established a woman's right to an abortion?" (1/5-9/17)
"There is a type of medical research that involves using special cells, called embryonic stem cells, that might be used in the future to treat or cure many diseases, such as Alzheimer's, Parkinson's, diabetes, and spinal cord injury. It involves using human embryos discarded from fertility clinics that no longer need them. Some people say that using human embryos for research is wrong. Do you favor or oppose using discarded embryos to conduct stem cell research to try to find cures for the diseases I mentioned?" (6/18-25/08)
The moral debate regarding abortion focuses on two distinct issues: (1) whether a human fetus has a right to life, and, if so, (2) whether the rights of the mother ever override the fetus's right. We’ll consider each of these in turn, beginning with several views about the fetus’s right to life.
Human Soul and the Right to Life
The issue of the moral status of a fetus is thousands of years old, and early discussions of it in both Greek and Judeo-Christian culture linked it with the concept of the human soul. The term “soul” in this traditional sense involves a mixture of both psychological and religious properties. From the psychological side, the soul can be that which gives the human organism life, or movement, or emotions, or rationality. Traditional speculations about the psychological aspects of the soul were not scientific by our current standards, and philosophers were unclear about whether the soul was physical or nonphysical, and whether the seat of the soul was in the head, the heart, or somewhere else. From the religious side, the soul can be that aspect of a human being that reflects God, or receives knowledge from God, or is a small part of God, or survives the death of the body and enters a heavenly realm. There is no uniform list of the religious features of the soul, and they depend upon the doctrines of specific faith traditions. Fortunately, we do not have to sort this out here. What is critical about the traditional concept of the soul for the abortion debate is when the human fetus acquires its soul. There were three main answers to this: at birth, at conception, and at some time in between these two.
Regarding the first, that the fetus acquires its soul only upon birth, this position was adopted by Stoic philosophers who held that, until birth the fetus must be considered part of the mother’s body. They argued by analogy that just as “the fruit of trees is considered part of the trees until it is fully ripe, then it falls and ceases to belong to the tree, so it is with the fetus” (Plutarch, Placita, 15). Their explanation for this was that the souls of both humans and animals are made of air, and the soul only enters a developed fetus upon birth when it takes its first breath. Using another analogy, they argued that just as a piece of hot iron is finalized only when plunged into cold water, so too when the fetus emerges from the warm furnace of the womb, it is engulfed with cold air and “immediately receives the power of movement and can utter vocal sounds” (Tertullian, Treatise on the Soul). The physiology of this Stoic explanation we would of course now reject. But the larger point of the Stoic position is that it is only upon birth that the developed fetus first takes on the human features of experiencing its surroundings and interacting with its environment. Humanity, then, emerges when we engage in the world. However, a critic may object that this is not a persuasive argument for the view that fetuses acquire their moral standing only upon birth. For, what we know now, and the Stoics did not know then, is that developed fetuses inside the womb do interact with their surroundings. A developed fetus can hear sounds, perceive its mother’s trauma, and physically respond to it. Thus, indicators of the human soul are present at least at some point prior to birth, and the Stoic’s extreme position fails.
The second position, that a human fetus acquires its soul upon conception, was defended by early Christian theologian Tertullian (155–240 CE). His main argument for this is that, just as death involves the separation of the body and soul, so too does life from conception involve the joining of the body and soul. According to Tertullian, we should “judge the events of a person’s earliest existence by those that occur to him at the very end of his existence” (Tertullian, Treatise on the Soul). Our entire human lifespan is marked off by something like two book ends that mirror each other, where the first combines the body and soul together, and the second separates them. Upon death, the split between body and soul is instantaneous, and so too, upon birth, the combining of body and soul is instantaneous, without even a microsecond where the conceived embryo exists without the soul. Ignore for the moment Tertullian’s claim that life and death are instantaneous events, a view that is not compatible with contemporary physiology. A critic may still challenge Tertullian’s assumption that life and death must mirror each other. It makes a tidy theory to say that they are parallel, but tidiness and symmetry are not necessarily proofs of a theory’s truth. It could be that life is immediate and death is gradual, or life is gradual and death is immediate. It may take only moments for a torrential rain to flood a valley, but weeks for the valley to return to normal. It may take thousands of years for topsoil to develop on a mountain, but only minutes for a landslide to wipe it all away. Nature does not always work with tidy bookends, and for all we know souls form gradually as fetuses develop, and are not fully assembled products right out of the box. Tertullian also had theological reasons for believing that fetuses acquire souls upon conception, but this particular argument of his does not look successful.
The third position is that fetuses acquire their souls at some time in between conception and birth. This is the view held by medieval Christian philosopher Thomas Aquinas (1225–1274), who maintained that the fetus receives the distinctively human component of the soul during the second or third month of pregnancy. This position is sometimes called delayed hominization. Aquinas’s position rests on a view developed by Aristotle centuries earlier that there are three levels to the human soul: the nutritive soul, the sensitive soul, and the intellectual soul. Human fetuses at first have only the nutritive soul, which allows it to take in nutrition and stay alive. For Aquinas, the fetus gets this directly from the father’s semen, which follows the natural mechanism by which life produces more life. Next, as the fetus matures, it naturally develops a sensitive soul, which allows it to have sensations. Finally, according to Aquinas, when the fetus forms distinct body parts, God implants the intellectual soul in the fetus, which perfects the previous two souls. The intellectual soul is what makes the fetus distinctly human, rather than being a mere animal. The timeframe in which the fetus takes form and receives its intellectual soul from God is around forty days into pregnancy for a male fetus and ninety days for a female one. This timeframe he also got from Aristotle who examined the shapes of miscarried fetuses. Thus, Aquinas concludes, “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” (Aquinas, Summa Theologica, 1ae Q. 18, Art. 1, 2).
Physiologists today would reject Aristotle’s antiquated theory of the three types of souls, and they would not even address Aquinas’s contention that at some point God implants a distinctively human soul in fetuses that perfects the first two. Still, the overall thrust of Aquinas’s theory has a contemporary feel: human identity emerges during fetal development as the fetus grows and takes shape. This is a theme that we will explore further in the sections that follow.
Criterion of Personhood and the Right to Life
Contemporary philosophers typically no longer discuss the issue of the fetus’s right to life by drawing on the concept of the soul. Rather, the preferred notion is that of moral personhood, and the issue is whether fetuses have moral personhood at any stage of pregnancy. To have moral personhood means that someone has a special moral worth that other people are required to acknowledge. We might think of all morally significant persons as members of a special moral community, where all such persons have moral duties, rights, and in general deserve moral consideration from one another. Membership in the moral community may not be restricted to just human beings. Of course, objects like rocks are not moral persons or members of the moral community since they have no special moral worth in and of themselves. But animal rights advocates argue that many higher animals do have moral personhood, such as chimpanzees, dolphins, dogs and cats. Also, when we think about the possibility of intelligent life elsewhere in the universe, we can envision that many alien life forms could have special moral worth and are moral persons. The critical question is, What is the specific feature of an adult human or chimpanzee or alien that makes it a member of the moral community? That is, what is the criterion of moral personhood? If we find that criterion, then we can see whether fetuses have it too, and thus determine whether they are members of the moral community with special rights, including the right to life.
Identifying the right criterion of moral personhood is a challenge, and let us consider a few possible candidates. Perhaps it is simply life: if you are alive, you have moral personhood. But this is too generous since it would include plant life, and we are not inclined to think that a stalk of celery has any special rights. Perhaps instead it is animal life. Members of the Jain religion from India believe that all living animals, even insects, qualify as persons and thus have a right to life. Jains frequently wear cloths over their mouths to avoid accidentally inhaling bugs, and they sweep paths before themselves to keep from stepping on insects. In our part of the world, though, this also seems extreme. Perhaps instead the criterion of personhood is consciousness, that is, having sensory experiences and awareness of one’s surroundings. Closely associated with this is the notion of sentience, that is, the ability to experience pleasure and pain. If consciousness or sentience were the criteria of personhood, then insects would most likely not qualify as persons. But even the criterion of consciousness may be too inclusive, since lower animals such as lizards and chickens are conscious and would thus qualify as morally significant persons.
A narrower criterion of personhood which is widely adopted by contemporary ethicists is the notion of self-awareness, or the ability to conceive of oneself as existing in time. A self-aware being understands that it has a past history, and that the events of its history are relevant to who it is now. It is unlikely that lizards and chickens are self-aware, and thus would not be members of the moral community. However, higher mammals such as dogs and chimpanzees are self-aware so, according to this criterion, they would be included. Yet an even narrower criterion of personhood is rationality, which would include the ability to develop a complex language, to make complex tools, and to understand the world around us. This would also rule out lower animals, and even many if not all higher animals.
Rather than seeking out a single criterion of personhood, an alternative approach is to group together a cluster of them from the above list that jointly identify and establish the moral personhood of someone. American philosopher Mary Anne Warren (1946-2010) suggests the following traits “which are most central to the concept of personhood”:
1. consciousness (of objects and events external and/or internal to the being), and in particular the capacity to feel pain;
2. reasoning (the developed capacity to solve new and relatively complex problems);
3. self-motivated activity (activity which is relatively independent of either genetic or direct external control);
4. the capacity to communicate, by whatever means, messages of an indefinite variety of types, that is, not just with an indefinite number of possible contents, but on indefinitely many possible topics;
5. the presence of self-concepts, and self-awareness, either individual or racial, or both. [Mary Anne Warren, “On the Moral and Legal Status of Abortion"]
She acknowledges that it is difficult to give precise definitions of these concepts and to recognize in which circumstances they apply to people, but feels that we all know approximately what they mean.
The criterion of moral personhood is an ongoing dispute. But regardless of which criterion or cluster of criteria we adopt, if a being exhibits the appropriate feature, then that being is a moral person and, consequently, a rights holder. Returning to the abortion question, we now ask: does a fetus exhibit any of these qualities during any stages of development from zygote onwards? Even human zygotes are alive, and early stage embryos exhibit animal life. But in our part of the world, mere “animal life” is not a criterion of personhood that we adopt. As to consciousness and sentience, during the last trimester of pregnancy fetuses do exhibit these features. But then so do chickens and lizards, and many of us would feel uncomfortable adopting a criterion of personhood that includes these creatures. As to self-awareness and rationality, fetuses do not have these features at any stage of development. Thus, when considering the features that fetuses actually exhibit at various stages of development, they do not have the ones that most of us would associate with personhood.
However, there are two strategies that attempt to locate personhood within even the most undeveloped fetuses: the potentiality argument and the biological continuity argument. We turn to these next.
Potentiality Argument and the Right to Life
According to the potentiality argument, even the most undeveloped fetuses are potentially self-aware and rational, and this qualifies them for moral personhood and, thus, for the right to life. While fetuses do not yet exhibit the psychological features of self-awareness and rationality, fetuses are uniquely organized so that, allowing nature to follow its course, they will in time develop them. In this way, “potentiality” means that a thing is naturally formed in such a way that it has the power to grow into a being of a certain sort. To some extent we rely on the concept of potential self-awareness and rationality with adult notions of personhood. There are times when even adult humans do not actually exhibit self-awareness and rationality, such as when asleep, or in a temporary coma, or drunk, or overwhelmed with emotion. But during those times when higher levels of consciousness defy us, regardless of how long they last, as long as we have the potential to later exhibit self-awareness and rationality, we would expect others to recognize our personhood. Similarly, we rely on the potentiality argument when determining that infants, who currently lack self-awareness and rationality, nevertheless have a right to life. They do so because they will naturally grow into those psychological states, and that potential grants them a moral standing in their current states. Thus, in the same way, fetuses and even the tiniest embryos qualify for personhood because they too will naturally grow into those psychological states.
Does this potentiality argument for fetal personhood succeed? There are three criticisms of it that we will consider. First, Peter Singer argues that the potentiality argument fails since rights that you have now do not apply retroactively to you in an earlier stage of your life. When Abraham Lincoln was 20 years old, he was a potential president of the United States, but that did not give the 20 year old Lincoln the actual rights that he would later have as a president. Similarly, while a fetus is potentially an adult human, it does not in its actual state have the actual rights right now that it will as an adult. Singer writes,
There is no rule that says that a potential X has the same value as an [actual] X, or has all the rights of an [actual] X. There are many examples that show just the contrary. Pulling out a sprouting acorn is not the same as cutting down a venerable oak. [Peter Singer, Practical Ethics]
In each of these cases, we treat beings based on the features that they actually possess, and not merely possess potentially. Thus, for Singer, the potentiality argument for fetal personhood fails.
A second criticism of the potentiality argument is sometimes called the sperm-ovum problem: when the notion of potentiality is pushed to its limits, it leads to the absurd position that human sperm and ova must also have personhood. Imagine that at 1:00 a woman has both an egg and sperm in her womb, and, letting nature take its course, at 2:00 the sperm swims into the egg and fertilizes it. According to the potentiality argument, the fertilized egg in her womb at 2:00 has personhood because it is potentially self-aware and rational. By the same reasoning, the unfertilized egg and sperm in her womb at 1:00 also have personhood because even in that state they too are potentially self-aware and rational. But this is absurd: an individual unfertilized egg and sperm do not have moral personhood and the right to life that goes along with personhood. Thus, again the potentiality argument for fetal personhood fails.
However, the defender of the potentiality argument has a response to both of these criticisms. Again, what we mean by “potentiality” is that a thing is naturally formed in such a way that it has the power to grow into a being of a certain sort. Lincoln at age 20 was not naturally formed to have the power become President: that is something that he had to work at. The egg and sperm by themselves are not naturally formed to have the power to become a person: that occurs only when the egg and sperm are combined. The sprouting acorn is not naturally formed to have the power become venerated in all occasions: it only gains that appreciation by us when it is placed in a park, arboretum or special environment. By contrast, an embryo is naturally formed to have the power to become a self-aware and rational person. The self-awareness and rationality that we have as adults is not based on any special circumstances; rather, it is something that we were naturally formed to grow into. With a proper understanding of the notion of “potentiality”, similar counter examples to the potentiality argument can also be averted.
But, a third problem with the potentiality argument is not so easily surmounted: fetuses are naturally formed for miscarriage almost as much as they are for full growth. While it is true that an embryo is naturally formed with a power to grow into a self-aware and rational person, this depends entirely on the natural conditions of the mother’s womb in which the embryo develops. The natural growth of the embryo is inseparably intertwined with the natural womb environment, and without that environment, there is no natural growth whatsoever. Outside of the womb, a fertilized egg has no more potential for growth into an adult human than does a skin cell removed from your arm. The womb environment, then, is an essential part of the fetuses natural growth. But, as we have seen, the woman’s biology is programmed to terminate pregnancies when the smallest problem arises with either the fetus or the mother herself, and this occurs in around half of all pregnancies. It is like a car alarm that is so sensitive that the slightest touch triggers it. With such high odds of a miscarriage, it is misleading to say that the embryo is naturally formed within the womb for successful growth. The brute fact is that nature does not care about the successful growth of every fetus, even normal ones, especially within the first trimester of pregnancy when three-quarters of all miscarriages occur. Scientists may someday create an artificial womb that has a lower rate of miscarriage; but that is human contrivance and not nature, and the argument from potentiality rests on what nature does. The most that can be concluded from the argument from potentiality is that, as pregnancy progresses, fetuses have a greater natural growth potential for self-awareness and rationality, and at a certain point they may gain personhood and the right to life that goes along with it.
Biological Continuity Argument and the Right to Life
The second approach to locating personhood in a fetus is the biological continuity argument. According to this view, personhood must begin at conception since, from conception to birth, biological development is so smooth and unbroken that there is no specific point at which the fetus radically becomes a different thing. Thus, no meaningful biological line of distinction can be drawn between embryos and adults that would confer personhood to adults, but not to embryos. Conception is the only meaningful point in development that signals the presence of moral worth. At the moment of conception, the organism is a new genome and a new entity capable of its own internally self-directed development. That feature remains the same throughout its entire lifespan. Consider, for example, a crystal cluster that you might buy at a rock shop. Some can be taller than a person with countless facets and protrusions, but they typically begin with a single microscopic nucleus, and progressively grow out from that into complex forms and shapes. Its development is smooth and continuous, and throughout the process it always contains the fundamental properties of a crystal. This is the type of progressive and unbroken development that we see in human growth, from conception to birth and beyond.
There are two problems with the biological continuity argument. First, there is no clear biological starting point that can be designated as “the moment” of conception; without that, no clear biological distinction can be drawn between even (1) a completely separate sperm and egg and (2) an adult human. Biologist David Barash argues that the fertilization process is a mutli-faceted one that takes place over time, and he describes several stages of the process once the sperm comes in contact with the egg. He concludes, “Paternal and maternal genes thus remain separate for at least 24 hours, and it takes an additional day or so before their combined influence directs cell function. There is, to repeat, no cymbal-crashing ‘moment’ of fertilization. Natura non facit saltum [nature does not make jumps]”. (David Barash, Natural Selections, 2007). The biological continuity argument is founded on a very picky point: there is no clear dividing line in fetal development that separates person from non-person, thus the fetus must be a person from the moment of conception. We now add to that the problem that conception itself has no clear starting point. So, if we really are going to be picky, fetuses begin as separate sperm-egg non-persons, and forever remain non-persons throughout their biological development on through adulthood. The moral of the story is that you cannot hold to a picky principle only when it suits you.
The second problem with the biological continuity argument is that it downplays several important developmental junctures along the spectrum from zygote to newborn that seem to be relevant to the moral worth of the fetus. In past centuries, long before the invention of fetal monitoring and ultrasound technologies, there were three common points of designation for personhood which anyone, without the aid of medical devices, could observe. The first was the point at which a fetus takes recognizable human shape. We have seen Aristotle’s view that this occurs at about 40 days for male fetuses and 90 days for female ones. The Catholic Church followed Aristotle’s position until the year 1875, when it adopted their current position that fetuses gain their souls at the moment that the sperm enters the egg. The second traditional designation of personhood was quickening, where by around week 16-20 a woman could feel the fetus move inside of her. The ability to move is an important feature of animal life, and thus quickening would be the first tangible indication of the presence of a moving and living thing within the woman. The third designation was viability, where by around week 26 the fetus could possibly survive outside the womb if born prematurely. Even without modern medicine, human experience reveals that some premature infants live, while others that are born too soon die. The fact that a fetus can survive outside the womb shows that it has reached the point in development that it is self-sustaining.
With the development of prenatal research and technology in contemporary times, other points of designation for personhood in fetuses have been proposed. There is the emergence of what is called the primitive streak, that is, the earliest structure of the vertebrae column, which designates it as a complex animal life form. There is also the point when the fetus’s internal organs are formed and begin functioning, which designates that the basic parts of its biological systems are in place. With the emergence of the nervous system, there is the capacity to have rudimentary conscious experiences, such as the sensation of pain. While the traditional and more contemporary points of designation differ in some respects, they share a common assumption that personhood emerges when a fetus takes on some important and noticeable human attribute. The various dividing lines are not arbitrary ones, but linked directly with an aspect of human life that we find morally valuable. The weakness of the argument from continuity, then, is that it fails to recognize these important dividing lines, some of which have been recognized by human societies for millennia.
So, do human zygotes, embryos or fetuses have the status of moral persons with a right to life? Considering the various problems surrounding the concepts of the soul, moral personhood, potentiality, and continuity, the answer is not as clear as we would hope. Most people would likely recognize the personhood of fully developed fetuses that can survive outside the womb: if we grant personhood to newborns outside of the womb, it makes sense to also grant this to mature fetuses on the inside of the womb that are essentially indistinguishable from newborns. At the other end of the spectrum, though, it is more difficult to recognize the personhood of a single cell zygote, or a small cluster of embryonic cells that have no discernable animal shape or function, and have a high rate of natural miscarriage.
Balancing the Fetus’s and Mother’s Rights
For the sake of argument, let us now assume that embryos and fetuses have a full right to life from the moment of conception. Even if we all agreed on this, the abortion debate would not be over. Questions then arise about whether the mother's right of self-determination overrides the rights of the fetus. It is the mother's body which is affected by the pregnancy, and it is her life, health, and emotional state that may be drastically impacted. These factors carry at least some weight. The most commonly accepted extenuating circumstances concern pregnancies that result from rape and incest, and those in which the woman’s life is at risk. Occasionally, though, some abortion critics take the hard line position that no extenuating circumstance overrides the fetus’s right to life, and thus all abortions are wrong. For example, in 2006 Nicaragua enacted a law banning abortion in all cases, including when a woman's life is endangered, and imposed a three to six year prison term on those who perform them. The law was influenced by the country’s religious conservatism, which is 85% Roman Catholic. Most people in our country and throughout the rest of the world find this position too extreme and recognize that there are at least some extenuating circumstances that justify abortion.
In a famous article on this subject, titled “A Defense of Abortion” (1971), American philosopher Judith Jarvis Thomson (b. 1929) argued that, even if we grant that fetuses have a fundamental right to life, in three specific situations the rights of the mother override the rights of a fetus. She makes her case drawing on three provocative thought experiments. The first pertains to pregnancies that result from rape. Imagine that you wake up one morning and find that you have been kidnapped, taken to a hospital, and a famous violinist has been attached to your circulatory system. You are told that the violinist was ill and, in an emergency decision, you were selected to be the host because only you had the compatible blood-type. The violinist will recover in nine months, but will die if disconnected from you before then. Clearly, Thomson argues, you are not morally required to continue being the host:
Is it morally incumbent on you to accede to this situation? No doubt it would be very nice of you if you did, a great kindness. But do you have to accede to it? What if it were not nine months, but nine years? Or longer still?
This, she believes, parallels the situations where a pregnancy results from rape and where the woman has to spend nine months in bed; thus, by parallel reasoning, the woman would be justified in having an abortion.
The second thought experiment pertains to pregnancies in which the woman’s life is at risk. Imagine that you and a baby are inside a small house; the baby then begins to grow at such an astounding rate that you are at risk of being crushed by it. There is no means of escaping, and the only option you have to save your life is to kill the baby. Thomson argues that you would be justified in killing the infant: “However innocent the child may be, you do not have to wait passively while it crushes you to death.” This does not require that I as a bystander and obligated to help the mother by killing the child, but, Thomson argues, “anyone in a position of authority, with the job of securing people’s rights, both can and should” assist the mother.
The third thought experiment involves pregnancies that result from contraception failure. Imagine that human beings were produced from seeds that blow around and then take root by implanting in the upholstery and carpets within houses. If you do not want children, you need to keep the seeds from entering your house, such as by installing window and door screens. This, then, is what you do, but it turns out that one of the screens is defective and has a small tear that enables a seed to enter your house and take root. Thomson argues that in this situation you would be justified in uprooting the people-plant since its presence in your house was unintentional and you made a good faith effort to keep it out. It is unreasonable, she maintains, for society to expect you to completely board up your windows and doors, essentially remaining abstinent:
Someone may argue that you are responsible for its rooting, that it does have a right to your house, because after all you could have lived out your life with bare floors and furniture, or with sealed windows and doors. But this won’t do-for by the same token anyone can avoid a pregnancy due to rape by having a hysterectomy, or anyway by never leaving home without a (reliable!) army.
Accordingly, if a set of parents “have taken all reasonable precautions against having a child, they do not simply by virtue of their biological relationship to the child who comes into existence have a special responsibility for it.”
Some of Thomson’s thought experiments may be more compelling than others. Nevertheless, the larger point behind them is that there are many extenuating circumstances surrounding pregnancies in which the rights and interests of the woman may outweigh the rights of the fetus, even if we grant that the fetus has personhood.
PUBLIC POLICY ISSUES
Some moral issues spill over into the political arena, and in many ways take on a life of their own, creating an ever-expanding set of controversies. That is especially so with the abortion issue. Countries around the world take different stances on the personhood status of fetuses and the permissibility of abortions. On the liberal side, in 2004, the European Court of Human Rights, which is Europe’s highest court to decide such issues, rejected an appeal to grant full human rights to fetuses. The Court concluded that “it was neither desirable, nor even possible. . . to answer in the abstract the question whether the unborn child was a person.” On the conservative side, Muslim law grants fetuses the status of “incomplete persons” (i.e., “zimma”), which means that it has rights, but is not capable of performing duties. In the U.S., the legal status of abortion at various stages of pregnancy was established in the Supreme Court case Roe v. Wade.
Supreme Court Decisions on Abortion
For most of U.S. history, abortion was governed by the laws of individual states. Some states were conservative and permitted abortion only in a few extenuating circumstances, such as whether the woman’s life was at risk. Others were more liberal and took into account the woman’s psychological condition. All that changed in 1973 with the landmark Supreme Court ruling Roe v. Wade, which established the Constitutional right of women to have abortions, depending on which stage of pregnancy they are in. During the first trimester, women can have abortions as they so choose without interference from their State government. During the second trimester, States can restrict abortion, but only if an abortion procedure poses a special health risk to the woman; the status of the fetus is not a consideration. During the third trimester, States can restrict abortions as they see fit in the interest of protecting the potential life of the fetus, as long as there is an exception to preserve the life and health of the woman. The Court’s decision was based on four basic points. First, throughout most of Western Civilization, laws regarding abortion were at least somewhat liberal. Second, the Constitution includes a right to privacy, which extends to women’s control over their bodies. On this issue Court writes,
The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as . . . 1891, the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. . . . This right of privacy . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. [majority opinion, Roe v. Wade, 1973]
Third, fetuses do not have a legal status as “persons.” Fourth, the status of a fetus becomes significant only when it becomes viable at the beginning of the third trimester. The Court writes, “With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb” (ibid).
When the Supreme Court heard their next major abortion case almost 20 years later in the case Planned Parenthood vs. Casey (1992), they reaffirmed the central components of Roe. That is, they recognized “the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State”. Although they downplay the phrase “the right to privacy,” which was so central in Roe, the rationale is fundamentally the same: abortion is an intimately personal matter for the woman that should not be decided by the state:
Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. . . . These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State. [majority decision, Planned Parenthood vs. Casey (1992)]
The main impact of the Casey ruling is that it allowed states to place some restrictions on access to abortion, so long as it does not place an undue burden or “substantial obstacle” in the woman’s pursuit of an abortion. Specifically, it permits states to impose a 24 hour waiting period and a requirement for parental consent for women under 18 years of age seeking abortions.
Although the Justices in Casey reached a decision, the Court was divided. Justice Antonin Scalia criticized the original Roe decision for having elevated the abortion controversy to the national level where it is more difficult to resolve than would be if left to each state to decide the issue for itself. “National politics,” he writes, “were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress, before Roe v. Wade was decided.” Scalia continues that the Roe decision “destroyed the compromises of the past, rendered compromise impossible for the future, and required the entire issue to be resolved uniformly, at the national level.” It also has forced the Supreme Court itself to be umpires in the abortion business. However, Justice Harry Blackman, who authored the original Roe majority opinion, attacked Scalia for being “uncharacteristically naive” for thinking the abortion issue would be more peacefully resolved if left to each state to decide for itself. He writes, “state efforts to regulate and prohibit abortion in a post-Roe world undoubtedly would raise a host of distinct and important constitutional questions” that would ultimately need to be resolved by the Supreme Court.
Conservative critics of the Roe and Casey decisions have regularly sought for ways to reverse it or at least reduce its effects. One effort has been to get more conservative justices on the Supreme Court who would revisit the issue and rule differently. While the Court’s ideology has shifted in the conservative direction in the decades since Roe, they have yet to overturn its basic position. Perhaps one reason for this, as some have speculated, is because the justices do not want to go down in history as radically redirecting a now well-established foundation of Constitutional law. Another conservative strategy has been to get Congress to enact a “Human Life Amendment” to the Constitution that would establish the legal personhood of fetuses from the moment of conception. Some versions seek an amendment that simply maintains that abortion is not a Constitutionally protected right, and that individual states have the power to regulate abortion for themselves. While versions of the bill are proposed every few years, none has been successful, and advocates themselves are doubtful that such a bill will ever become law.
Yet another strategy has been to have states enact laws that would curtail the operation of abortion clinics within their jurisdiction, particularly by imposing more severe and costly requirements on such clinics than are mandated with other medical practices. These have been nicknamed “TRAP laws”, an acronym for “Targeted Regulation of Abortion Providers.” For example, Texas enacted a law requiring that the building construction of abortion clinics meet the high standards of ambulatory surgical centers (including special regulations about the width of halls and doorways), which is a standard that typical doctors’ offices or outpatient clinics do not even meet. The law also required that physicians performing abortions have admitting privileges at a hospital within 30 miles from the location of performed abortions. The Texas law was challenged and eventually overturned by the Supreme Court in the case Whole Woman's Health v. Hellerstedt (2016). The court ruled that “Both the admitting-privileges and the surgical-center requirements place a substantial obstacle in the path of women seeking a previability abortion, constitute an undue burden on abortion access, and thus violate the Constitution.”
Still another strategy involves passing laws that require physicians to provide a woman seeking an abortion with physical details about their fetus’s development, and thereby discourage her from following through on her abortion plans. A South Dakota law requires physicians to tell the woman that abortion ends a human life. An Oklahoma law required women seeing an abortion to receive an ultrasound and a physician’s description of the fetus; this law, however, was later overturned as unconstitutional. Similarly, a “fetal pain” bill was proposed before the U.S. Congress that would require health care providers to read an informed consent statement to such women, notifying them that fetuses of a specific age can feel pain and that anesthesia for the fetus is available. Scientists are divided about the age at which a fetus can experience pain, but the average estimate is at around 25 weeks, about the middle of the second trimester. The bill has not yet passed. However, Arizona passed a fetal pain law criminalizing abortions after 20 weeks. This law was also over turned.
COMMON ARGUMENTS PRO AND CONTRA
The Conservative Position
Generally speaking, the conservative stance on abortion is that moral personhood begins at conception, and only in rare situations do the woman’s rights outweigh those of the fetus. As such, abortion is never justifiable except perhaps in cases of rape, incest, and when the mother’s life is at risk. Here are some of the more common arguments given in support of the conservative position.
1. The wrongness of intentional killing: abortion is the intentional killing of a potential person, and, except in rare situations, intentional killing is morally wrong. This is one of the stronger intuitions on the conservative side since it draws on a fundamental conception of all civilized societies that intentional killing is wrong. There are two main criticism of this argument. First, it presumes that the fetus has personhood at all stages of development, which, as we have seen above, is a matter of debate. Second, it sidesteps the issue of when intentional killing is justified. Societies typically permit intentional killing in cases of self-defense, war, capital punishment, and perhaps euthanasia. There may be at least some situations in which similar justifications apply to abortion.
2. The responsibility to protect the innocent: the fetus is an innocent being which cannot speak for its own interests, and, thus, society must actively defend the fetus’s interests. Again, the notion of defending the innocent is an important value in society. Criticisms here, though, are the same as with the previous argument. If a fetus does not have moral personhood, then it is technically not an innocent being in the moral sense of the term. Second, even if it is an innocent being, there are extenuating circumstances in which killing innocent people may be justified, such as civilian casualties in war and euthanasia.
3. Religious tradition: religious scriptures and traditions suggest that personhood begins at the moment of conception and that abortion is wrong. Much of the force behind the conservative view of abortion comes from religious tradition, perhaps more so than from the above two arguments which are more secular in nature. The strength of this argument is that religious traditions have been major sources of values in most societies throughout history, and such traditions have a built in authority. A criticism of this, though, is that religious traditions vary greatly, and have often supported values that today we reject, such as sexism, racism, and even slavery. Further, they are stipulated as truths which believers accept through faith, often without rational inquiry. While religious believers are entitled to submit to the authority of their tradition, it is less clear that people from other traditions should be compelled to accept that authority.
4. Women need to take responsibility: sexual activity has serious consequences, and women who choose to be sexually active assume the duty of bringing their fetuses to term if they become pregnant. Many of life’s activities involve taking risks, such as with dangerous sports, risky business ventures, and financial investments. In each of these cases we know the rules: we take our chances with the hope of some benefit, but we accept the consequences when things do not turn out as planned. Sexual activity is no exception to this. A criticism of this argument is that, even with risky activities that we engage in, society does not abandon us to our misfortunes. Injured athletes are hospitalized, bankruptcy laws assist us with failed business ventures. In at least some circumstances, abortion may be a reasonable safety net for women facing unwanted pregnancies.
The Liberal Position
The liberal position on the abortion issue is that moral personhood begins in later stages of fetal development, and the woman’s rights override those of the fetus’s in many situations. As such, abortion is always justified in early stages of pregnancy, and also in later stages when the mother’s life or psychological wellbeing is at risk. Here are four common arguments for the liberal position.
1. The woman’s right to bodily autonomy. Women have the right to control their bodies, and this applies to the effects that pregnancy has on them. This is the strongest intuition from the liberal side and it draws on a centuries-old conviction that people are entitled to a zone of freedom, which includes decisions about what happens to our bodies. A criticism of this argument is that all freedom has limits, and we do not grant free reign to people over their bodies. I am not entitled to cut out and sell my kidney on Ebay, just because it is mine. More significantly, I do not have free reign over my body when other people may be adversely impacted by what I do. I cannot, for example, wander into someone else’s house just because I feel like it. Most liberals agree that at some stage in fetal development the fetus obtains personhood, or at least potential personhood. At that point the interest of the fetus must be taken into account, and it might even override the interests of the woman.
2. The psychological impact of unwanted pregnancies: Many pregnancies can have long-term negative psychological impacts on women, and women have a right to be protected from such effects. The negative psychological impact of pregnancy from rape, for example, is especially great and many conservatives recognize this as an extenuating circumstance that justifies abortion. Defenders of abortion also note the sometimes devastating economic consequences that an unwanted pregnancy can have on a woman when she is without a family support system. Sometimes her entire educational and career path may be permanently derailed. A criticism of this argument is that it is hard to accurately gage the level of psychological trauma that a woman might experience from an unwanted pregnancy, particularly over the long term. A pregnant woman might overreact about how having a baby might affect her, and there’s no clear way to confirm or disconfirm her worry in advance. Further, this opens the door to justifying an abortion virtually anytime a woman expresses worries about the long term effects of having a baby, whether those worries are real or not.
3. The social impact of unwanted pregnancies: Unwanted children can have a negative impact on society as a whole, such as by increasing crime and contributing to overpopulation. One study suggested that crime in the United States dramatically decreased in the decades following the legalization of abortion in the early 1970s. A criticism of this argument is that similar reasoning could be used to justify rounding up and killing socially undesirable people within our cities. For example, it is reported that death squads in Rio de Janeiro have killed thousands of vagrant children who roam the streets, harass its citizens, and harm the tourist industry. Clearly such a social policy is unjustified for violating the children’s rights to life, regardless of the harm they cause to society. Similarly, even if unwanted pregnancies adversely affect society through crime and overpopulation, this may not be compelling enough to override a fetus’s right to life if it has moral personhood.
4. The danger of self-induced abortions: women who are desperate to terminate their pregnancies will often do so by unsafe means if no legal means are available. This position is exemplified by an activist Dutch organization called “The Women on Waves Foundation,” which created a floating abortion clinic and sailed to countries like Ireland and Poland where abortions were difficult to obtain. The foundation maintains that a woman dies every five minutes somewhere in the world because of an illegal or unsafe abortion. Some methods of self-induced abortion include attempting to remove the fetus with an object such as a metal coat hanger or knitting needle, intentionally injuring their abdomens to bring on a miscarriage, or taking high doses of drugs that are rumored to bring on miscarriages. A criticism of this argument is that there are other possible ways to reduce self-induced abortions besides legalizing all abortions on demand. Better social services for pregnant women, increased contraception use, and wider availability of the morning after pill might also effectively address the problem.
A Middle Ground
While it may be impossible to construct a middle-ground social policy on abortion that all people can agree upon in each of the particulars, there are nevertheless a cluster of issues that might be at the heart of a centrist position. First, even the liberal side recognizes that abortion should not be the first choice of how to deal with an unwanted pregnancy, and, when possible, the numbers of abortions should be reduced. Parenting classes and economic assistance might help some women make the transition to motherhood. Adoption services are also a good option, although both sides agree that it is wrong to coerce pregnant women into adoption, thus treating them like baby machines. Second, generally speaking, the more developed the fetus is, the more morally controversial the abortion is. Abortions within the first few weeks of pregnancy, before the embryo takes on shape and biological function, are less problematic. At the other end of the timeline, fetuses within the third trimester are functionally indistinguishable from newborns, which most liberals recognize. The real battleground is within the second trimester, while the fetus has human form and biological function, but cannot survive outside the womb. In the interest of political harmony, some conservatives might be willing to compromise on social policies that permit early first trimester abortions, while some liberals might be willing to compromise when it comes to policies that restrict abortions within the second trimester. Third, there is some middle ground when it comes to recognizing extenuating circumstances that might justify an abortion, with the most commonly recognized ones being rape, incest, and risk to the woman’s life. Concerns about the psychological wellbeing of the woman are more controversial, but even here a middle ground might be found by limiting these to the first trimester.
READING 1: ROE V. WADE (U.S. Supreme Court)
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 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. . . .
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. . . . 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. . . .
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. . . .
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. . . . 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. . . .
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.
Please answer all of the following questions.
1. Explain the terms “zygote,” “embryo,” “fetus,” “quickening,” and “viability.”
2. What are the main abortion methods?
3. What is in vitro fertilization?
4. What are pluripotent stem cells and where do most of them come from for research?
5. According to the Stoics, Tertullian, and Aquinas, when do fetuses get their souls?
6. What are some of the criteria of personhood, and what is Warren’s view of personhood?
7. What is the potentiality argument for fetal personhood?
8. Explain Singer’s criticism, the sperm-ovum criticism, and the miscarriage criticism of the potentiality argument for fetal personhood.
9. What is the biological continuity argument for fetal personhood, and what are the two criticisms of it?
10. Assuming that a fetus has a right to life, when, according to Thomson, might the fetus’s right be overridden?
11. Roe v. Wade has stipulations about the legal availability of abortions based on each of the three trimesters. What are those stipulations?
12. What was the main impact of Planned Parenthood vs. Casey on the legal availability of abortion?
13. Explain the terms “human life amendment,” “TRAP laws” and “fetal pain”.
14. What are the criticisms of the four conservative arguments against abortion?
15. What are the criticisms of the four liberal arguments in favor of abortion?
[Reading 1: Roe v. Wade]
16. According to Roe v. Wade, what was the English common law view of abortion?
17. According to Roe v. Wade, what were the positions taken on abortion in American law from 1821 until the 1950s?
18. According to Roe v. Wade, what are the three reasons given for the criminalization of abortion in the 19th century?
19. According to Roe v. Wade, what are some of the differing views of when life begins, and what view does the Supreme Court take?
20. According to Roe v. Wade, what is the court’s view of abortion regulation during each of the three trimesters of pregnancy?
[Question for Analysis]
21. Pick any one of the following views in this chapter and criticize it in a minimum of 150 words. Ancient theories of the soul by the Stoics, Tertullian and Aquinas; Warren’s view of personhood; the potentiality argument for fetal personhood; one the three criticisms of the potentiality argument; one of Thomson’s thought experiments; the human life amendment, use of TRAP laws; and fetal pain regulation.