- FROM BIOETHICS BRIEFINGS
Framing the Issue
Despite the 1973 ruling by the Supreme Court in Roe v. Wade that women have a constitutional right to make the decision to terminate a pregnancy, abortion remains one of the most divisive and emotionally charged issues in American politics. At one end of the debate over this practice are those who regard abortion as murder—a despicable and heinous crime. At the other end are those who regard any attempt to restrict abortion as a violation of women’s rights to privacy and bodily self-determination. Most Americans are somewhere in the middle.
The central philosophical question in the abortion debate concerns the moral status of the embryo and fetus. If the fetus is a person, with the same right to life as any human being who has been born, it would seem that very few, if any, abortions could be justified, because it is not morally permissible to kill children because they are unwanted or illegitimate or disabled. However, the morality of abortion is not necessarily settled so straightforwardly. Even if one accepts the argument that the fetus is a person, it does not automatically follow that it has a right to the use of the pregnant woman’s body. Thus, the morality of abortion depends not only on the moral status of the fetus, but also on whether the pregnant woman has an obligation to continue to gestate the fetus.
Public opinion on abortion falls into three camps—conservative, liberal, and moderate (or gradualist)—each of which draws on both science and ethical thinking.
Conservatives regard the fetus as a human being, with the same rights as any human being who has been born, from the beginning of pregnancy onward. Some conservative groups—such as the Catholic Church—consider the fetus to be a human being with full moral rights even earlier than the beginning of pregnancy, which occurs when the embryo implants in the uterus. The Church regards the embryo as a full human being from conception (the conjoining of sperm and egg). This is because at conception the embryo receives its own unique genetic code, distinct from that of its mother or father. Therefore, Catholic doctrine regards conception, not implantation, as the beginning of the life of a human being.
Although conservatives concede that the fetus changes dramatically during gestation, they do not accept these changes as relevant to moral standing. Conservatives argue that there is no stage of development at which we can say, now we have a human being, whereas a day or a week or a month earlier we did not. Any attempt to place the onset of humanity at a particular moment—whether it is when brain waves appear, or when the fetus begins to look human, or when quickening, sentience, or viability occur —is bound to be arbitrary because all of these stages will occur if the fetus is allowed to grow and develop.
A secular antiabortion argument given by Don Marquis in 1989 differs from the traditional conservative view in that it is not based on the fetus being human, thus avoiding the charge of “speciesism.” Rather, Marquis argues that abortion is wrong for the same reason that killing anyone is wrong—namely, that killing deprives its victim of a valuable future, what he calls “a future like ours.” It is possible that some animals have a future like ours. If so, then killing them is also wrong. This raises two questions about what it is to have a future like ours. First, what precisely is involved in this notion? Does it essentially belong to rational, future-oriented, plan-making beings? If so, then killing most nonhuman animals would not be wrong, but neither would killing those who are severely developmentally disabled. Second, at what point does the life of a being with a future like ours start? Marquis assumes that we are essentially human animals, so our lives start with the beginning of our organisms. But Jeff McMahan denies this, arguing that we are essentially embodied minds, and not human organisms. In McMahan’s view, our lives do not start until our organism becomes conscious, probably sometime in the second trimester. Early abortion, in his view, does not kill someone with a future like ours, but rather prevents that individual from coming into existence – in much the way contraception does.
Liberals, like Mary Anne Warren in her classic defense of abortion, do not deny that the fetus is biologically human, but Warren denies that biological humanity is either necessary or sufficient for personhood and a right to life. Indeed, Warren thinks that the conservative is guilty of a logical mistake: confusing biological humans and persons. She argues that species membership is an arbitrary basis for moral standing, and maintains that it is the killing of persons, not humans, that is wrong. Persons are beings with certain psychological traits, including sentience, consciousness, the capacity for rational thought, and the ability to use language. There may be some nonhuman persons (e.g., some animals), and there may be biological humans that are not persons, including early gestation fetuses, who have no person-making characteristics. By the end of the second trimester, fetuses are probably sentient, but even late gestation fetuses are less personlike than most mammals. Therefore, if killing animals is permissible, so is abortion, throughout pregnancy.
In 1971, Judith Thomson gave a completely different pro-choice argument, claiming that even if the personhood of the fetus were granted, this would not settle the morality of abortion because the fetus’s right to life does not necessarily give it a right to use the pregnant woman’s body. No one, Thomson says, has the right to use your body unless you give him permission–not even if he needs it for life itself. At least in the case of rape, the pregnant woman has not given the fetus the right to use her body. (Thus, Thomson’s argument, somewhat ironically for an article entitled “A Defense of Abortion,” provides those who are generally anti-choice with a rationale for making an exception in the case of rape, as do many pro-lifers–though not the Catholic Church.) Thomson maintains that whether a woman has a moral obligation to allow a fetus to remain in her body is a separate question from whether the fetus is a person with a right to life, and depends instead on the amount of sacrifice or burden it imposes on her.
In 2003, Margaret Little argued that while abortion is not murder, neither is it necessarily moral. A pregnant woman and her fetus are not strangers; she is biologically its mother. However, she may have conflicts of duties. For example, a woman’s relationship to her children who have been born goes beyond mere biological connection and imposes stronger obligations. For this reason, their interests may trump those of the fetus. At the same time, even if the fetus is not a person, it is a “burgeoning human life,” and as such is worthy of respect. Many women believe that bringing a child into the world when they are not able to nurture it would be disrespectful of human life. The main reason women choose abortion, according to Little, is that they think it would be wrong to have a child when they are not capable of being good mothers.
The moderate, or gradualist, agrees with the liberal that a one-celled zygote is not a human person, but agrees with the conservative that the late-gestation fetus is virtually identical to a born infant. Thus, the moderate thinks that early abortions are morally better than late ones and that the reasons for having them should be stronger as the pregnancy progresses. A reason that might justify an early abortion, such as not wanting to become a mother, would not justify an abortion in the seventh month to the moderate.
The Legal Perspective
In 1973 in Roe v. Wade, the United States Supreme Court based its finding of a woman’s constitutional right to have an abortion up until viability on two factors: the legal status of the fetus and the woman’s right to privacy. Concluding that outside of abortion law, the unborn had never been treated as full legal persons, the Court then looked to see if there were any state interests compelling enough to override a woman’s right to make this personal decision for herself. It decided that there were none at all in the first trimester of pregnancy. In the second trimester, states may impose restrictions intended to protect maternal health. The state’s interest in protecting potential life becomes “compelling,” and trumps the woman’s right to privacy only until the fetus becomes viable, somewhere between 24 and 28 weeks. After viability, states may prohibit abortion altogether if they choose, unless continuing the pregnancy would threaten the woman’s life or health.
Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) pitted the justices who wanted to reverse Roe against those who wished to preserve it. Neither side won, and the result was a compromise written by Justices O’Connor, Kennedy, and Souter. It upheld Roe’s central finding, that women have a constitutionally protected right to choose abortion, prior to viability, while rejecting the trimester framework. Casey held that the state’s profound interest in protecting potential life existed at all stages of pregnancy, not just after viability. States may enact procedures and rules reflecting its preference for childbirth over abortion, so long as these rules and procedures do not constitute an “undue burden” on the woman’s choice.
The Court interpreted the undue burden standard as permitting a counseling requirement directing doctors to provide information about the abortion procedure, the relative risks of abortion and childbirth, embryonic and fetal development, and available resources should the woman choose to carry to term, provided the information given to the woman is truthful and not misleading. The Court also upheld a waiting period of 24 hours, as its intent is to make the abortion decision more informed and deliberate. However, the Court struck down a husband notification provision, for two reasons. First, such a requirement may put women at risk. Second, requiring husband notification reflects and perpetuates a now unconstitutional understanding of the marital relationship. The husband’s interest in the life of the child does not permit the state to empower him with a “troubling degree of authority” over his wife.
When it became clear to those in the anti-abortion camp that Roe was unlikely to be overturned, a new strategy of restricting abortions was developed. This strategy includes outlawing particular methods of abortion, imposing time limits based on claims of fetal sentience, and imposing restrictions on clinics and doctors who perform abortions in the name of protecting maternal health.
Outlawing abortion methods
In 2003, President Bush signed into law a bill that banned a particular abortion technique, known to doctors as “intact dilation and evacuation” and to the general public as “partial-birth abortion.” The bill described intact D&E as a “gruesome, inhumane” procedure that is “never medically necessary to preserve a woman’s health,” in which a fetus is partially delivered alive and a physician performs “an overt act that the person knows will kill the partially delivered living fetus.”
The law, which included no health exception, was found unconstitutional in 2005 but was upheld by the Supreme Court in the case of Gonzales v. Carhart in 2007. The majority reaffirmed its rulings in Roe and Casey that, before viability, a state may not prohibit any woman from making the ultimate decision to terminate her pregnancy. At the same time, states may enact restrictions on abortion for the purpose of expressing its concern for potential life, as long as they do not impose a substantial obstacle to her seeking an abortion. The majority held that the Partial-Birth Abortion Act did not impose an undue burden on women seeking abortions in the second trimester, since there were other methods available to physicians, in particular, the standard dilation and extraction, in which the fetus is dismembered prior to being removed from the woman’s body.
In her dissent, Justice Ruth Bader Ginsburg described the ruling as “alarming,” and said that it “tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists.” For example, intact dilation and extraction may be safer for the woman–and more likely to preserve her future fertility–than standard dilation and extraction, because dismembering the fetus in utero might puncture her uterus. Ginsburg argued that decisions about whether a particular procedure is medically indicated should belong to the woman’s doctors, and not to the Congress of the United States.
Imposing limits based on fetal sentience
In 2010, Nebraska banned all abortion after 20 weeks, on the ground that a fetus at that stage can feel pain. Since then, 14 more states (Alabama, Arkansas, Arizona, Georgia, Idaho, Indiana, Kansas, Louisiana, Missouri, North Dakota, Oklahoma, Texas, West Virginia, and Wisconsin) have passed similar laws. In 2015, the Pain-Capable Unborn Child Protection Act passed the House of Representatives; the motion to consider the bill in the Senate was withdrawn. The bill prohibits a physician from performing an abortion after 20 weeks, except where necessary to save the life of a pregnant woman (excluding psychological or emotional conditions) or in cases of rape or incest against a minor.
Although such laws have not been challenged in court, they are clearly unconstitutional, since the Supreme Court has reaffirmed in Casey and Carhart a woman’s constitutional right to choose abortion, prior to viability, and 20-week old fetuses are not viable. Some premature infants are being saved as early as 22 weeks. However, it appears that, absent development of an artificial placenta, 22 weeks represents the absolute lower limit on viability.
Are 20-week old fetuses sentient? The American College of Obstetricians and Gynecologists says it knows of no legitimate scientific information that supports the claim that a 20-week old fetus can feel pain. However, some researchers think that fetuses might become sentient as early as 17 weeks. In March 2016, Utah became the first state to require doctors to give anesthesia to women having an abortion at 20 weeks or later. The law does not apply to women having abortions needed to save their lives, or in cases of rape or incest. An obstetrician-gynecologist in Utah, who spends half of a Saturday each month in an abortion clinic, protested in the New York Times, “You’re asking me to invent a procedure that doesn’t have any research to back it up. You want me to experiment on my patients.”
Protecting women’s health
As stated above, Casey allowed states to restrict abortions based on a concern for women’s health as long as the restrictions did not impose an undue burden on the choice. A key issue raised by Whole Woman’s Health v. Hellerstedt, decided in 2016, was how judges should evaluate such health-justified restrictions. The case concerned a 2013 Texas law that required any physician performing an abortion to have admitting privileges at a hospital not more than 30 miles from the abortion facility, and required any abortion facility to meet the minimum standards for ambulatory surgical centers. The district court said that the law was unconstitutional because of its impact on access to abortion in Texas. Many abortion facilities would be unable to meet these requirements and would be forced to close, thereby severely limiting access to abortion. Moreover, the law’s provisions were unnecessary to protect women’s health. Abortion is an extremely safe procedure with very low rates of complications and virtually no deaths.
Writing for the majority, Justice Breyer said that “the Court, when determining the constitutionality of laws regulating abortion procedures, has placed considerable weight upon evidence and argument presented in judicial procedures.” In other words, states may not simply assert that the restrictions are necessary, but must have factual evidence to show that they are. Moreover, the Court has an independent constitutional duty to review factual findings where constitutional rights are at stake. Presumably, this decision ends the strategy of seeking to limit abortion in the guise of protecting maternal health.
Bonnie Steinbock, PhD, a Hastings Center Fellow, is professor emeritus of philosophy at The University at Albany/State University of New York.