From Bioethics Briefings

Abortion

Framing the Issue

Abortion has been one of the most divisive and emotionally charged issues in American politics. At one end of the debate are those who regard abortion as murder, a despicable and heinous crime. At the other end of the spectrum are those who regard any attempt to restrict abortion as an egregious violation of women’s rights to make their own decisions about their bodies and what is best for them and their families. Most Americans are somewhere in the middle.

A 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 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.

Ethical Considerations Around Abortion

Public opinion on abortion falls into three camps—conservative, liberal, and moderate (or gradualist)—each of which draws on both science and ethical thinking.

Conservative

Conservative opposition to abortion stems from the conviction that the fetus is a human being, with the same rights as any born human being, 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 be 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’s 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 nonhumans (some animals or aliens) 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. On McMahan’s view, our lives do not start until our organism becomes conscious, probably some time in the second trimester. Early abortion, on 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.

Liberal

The pro-choice position on abortion is often referred to as the liberal view. Mary Anne Warren provides a classic statement of the liberal view. Warren does not dispute the conservative’s claim that the fetus is biologically human, but she denies that biological humanity is either necessary or sufficient for personhood and a right to life. She argues that basing moral standing on species membership is arbitrary, and maintains that it is the killing of persons, not humans, that is wrong. Indeed, Warren thinks that the conservative is guilty of a logical mistake: confusing biological humans and persons. 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, extraterrestrial aliens), 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 who are not considered to be persons.

In 1971, Judith Thomson gave a completely different pro-choice argument from the classic liberal one, in which she maintained that even if the personhood of the fetus were granted, for the sake of the argument, 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 which provides her with some reason to protect its life. However, she may have duties of care to others, such as her existing children, which would be more difficult to fulfill if she has another child. The typical abortion patient is already a mother, single, and low-income or poor. Although Little does not regard the fetus as a person, it is a “burgeoning human life,” and as such is worthy of respect. But abortion does not necessarily conflict with respect for human life. Many women regard bringing a child into the world when they are not able to care for it properly as itself disrespectful of human life.

Moderate

The moderate, or gradualist, agrees with the classic liberal that an early fetus, much less a one-celled zygote, is not a person, but agrees with the conservative that the late-gestation fetus merits some moral concern because it 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 one 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.

Fetal Development Timeline (pdf)

The Legal Perspective

In Roe v. Wade, the Supreme Court based its finding of a woman’s constitutional right to abortion prior to fetal 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 momentous personal decision for herself. It decided that there were none at all in the first trimester of pregnancy. In the second trimester, the state’s interest in protecting maternal health allows for some restrictions, so long as these are actually related to maternal health and not the protection of the life of the fetus. The state’s interest in protecting potential life becomes “compelling,” and trumps the woman’s right to privacy only after the fetus becomes viable, which in 1973 was somewhere between 24 and 28 weeks. Today, some premature infants are being saved as early as 22 weeks. However, it appears that, absent development of an artificial placenta, 22 weeks represents an absolute lower limit on viability. 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 prevailed 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 requirement that required 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. This qualification has not always been followed. In several states, doctors are required to tell women seeking abortions that having an abortion increases their risk of breast cancer. While not exactly a lie, this is certainly misleading. Having a full term pregnancy can reduce the risk of breast cancer, but having an abortion does not increase a woman’s risk of developing breast cancer. The Court also upheld a waiting period of 24 hours, as its intent is to make the abortion decision more informed and deliberate. Yet the actual effect of waiting periods is often to make abortion access much more difficult, especially in places where women have to travel long distances to find an abortion provider.

After attempts to overturn Roe failed, a new strategy of restricting abortions was developed. This strategy included outlawing particular methods of abortion, such as partial-birth 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.

Fetal Sentience

In 2010, Nebraska banned all abortion after 20 weeks, on the ground that the fetus at that stage can feel pain. Subsequently, more than a third of states 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 prohibited 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.

Are 20-week old fetuses sentient? This claim is rejected by the American College of Obstetricians and Gynecologists, which says it knows of no legitimate scientific information that supports the claim that a 20-week old fetus can feel pain. Other researchers think that while we do not know when fetuses become sentient, it might occur as early as 17 weeks. Utah became the first state to require doctors to give anesthesia to women having an abortion at 20 weeks or later. The law, which went into effect in May 2016, would 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, “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

Casey allowed states to restrict abortions based on a concern for women’s health, so long as the restrictions did not impose an undue burden on the choice. A key issue raised by the Supreme Court case 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 further 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 medical procedure with very low rates of complications and virtually no deaths. In fact, although childbirth is 14 times more likely than abortion to result in death, Texas law allows a midwife to oversee childbirth in the patient’s own home. Thus, the new law was a solution to which there was no problem.

The Fifth Circuit reversed the District Court decision. One of its more startling claims was that states are entitled to impose health-justified restrictions, which are not subject to judicial review. In a 5-3 decision, the Supreme Court roundly rejected this claim. Writing for the majority, Justice Breyer said, “. . . 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.

Despite new restrictions on abortion, the core principle of Roe and Casey–that the right to abortion is protected by the Constitution—was upheld. But that was soon to change.

The Change in the Composition of the Supreme Court

Between 1991 and 2020, five Justices openly hostile to abortion (Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Barrett) were appointed to the Court, making the 6-3 decision to reverse Roe possible.

The change in the Court’s composition emboldened several states to pass abortion bans much earlier than viability. One of the most restrictive, signed into law by Texas Governor Greg Abbott in May  2021, prohibits abortions after a fetal heartbeat is detected, usually after six weeks of pregnancy. About a year later, Oklahoma adopted a similar restriction and made illegal abortion a felony punishable by up to 10 years in prison. A bill introduced in Louisiana (House Bill 813) in May 2022 allowed criminal charges for murder to be brought against those who perform or have abortions. Its sponsor, Republican Danny McCormick, justified the bill by saying, “it is actually very simple: Abortion is murder.” Louisiana Right to Life did not support the bill, since their policy is that “abortion-vulnerable women” should not be treated as criminals. The group also called the bill unnecessary since Louisiana already had a trigger law that would outlaw abortion, except when necessary to save the life of the mother, if Roe were overturned. An amended version of HB 813, which removed the language about charging women having abortions with murder and exempted birth control from being outlawed, did pass the House.

Overturning Roe and Casey

Dobbs v. Jackson Women’s Health (June 2022). The case concerned a Mississippi law banning all abortions after 15 weeks gestational age except in medical emergencies and in the case of severe fetal abnormality. Characterizing the decisions in Roe and Casey as “egregiously wrong,” the majority held that:

“. . . Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”

With the overturning of Roe and Casey, the matter of abortion has been returned to the states. Most abortions are banned in 14 states, while protected by state law or constitution in 21 states. (For updates, see Kaiser Health News Abortion Policy Tracker.) Abortion providers and advocates have challenged abortion bans in many states as violating the state constitution or another state law.

In his concurrence, Chief Justice Roberts said that while he agreed with the majority’s conclusion to uphold Mississippi’s law, he would have preferred a narrower approach based on the principle of judicial restraint. Instead of “repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed applying the doctrine of stare decisis“, the Court could simply have rejected viability as the point at which the state’s interest in protecting potential life outweighed the woman’s right to terminate her pregnancy, and upheld Mississippi’s right to ban abortions after 15 weeks. The majority rejected this approach, in part because it “would only put off the day when we would be forced to confront the question we now decide. The turmoil wrought by Roe and Casey would be prolonged. It is far better–for this Court and the country–to face up to the real issue without further delay.”

Abortion After Dobbs

The claim that Dobbs will end the turmoil over abortion is dubious. Abortion rights activists have challenged trigger bans in a dozen states. Some have already been rejected by judges, but other cases continue. Most of the legal challenges nationwide seek to establish that state constitutions protect a right to abortion. President Biden has signed an executive order designed to ensure access to abortion medication and emergency contraception, leaving the details up to the secretary of health and human services.

Court cases have challenged the availability of medication abortion. Another issue likely to result in lawsuits is whether states can prevent their residents from traveling to other states to have abortions. Nor are legal battles necessarily limited to the states. Some anti-abortion activists are pushing for a federal ban on abortion, while some pro-choice advocates are pushing for a federal law to protect the right to abortion. Neither side has the 60 votes necessary, but that could change in the future.

The Supreme Court expressly noted that its opinion “is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth.” That leaves open the question whether states may confer legal personhood on embryos. May they punish women who have abortions under their homicide statutes, even executing them in death penalty states?

The extreme conservative position, taken by the official teachings of the Roman Catholic Church, regards even abortions necessary to save the life of the pregnant woman as illicit, since it is forbidden to kill one innocent human being in order to save the life of another. As of July 2022, all of the state anti-abortion laws and proposed laws make an exception for “medical emergencies,” but nothing in Dobbs requires states to make this exception. Moreover, the determination of what counts as a medical emergency can be extremely subjective. A pregnant woman may develop a condition that might be, but is not definitely, life-threatening. May a doctor perform an abortion in that case? Five women in Texas have filed a lawsuit saying that they were denied medically necessary abortions. Joined by two ob-gyns, they are seeking to clarify when abortion is permissible under state law.

Questions abound. How close to death must a woman be for doctors to act? Will doctors be willing to take the risk of possible jail time if they make a call that is later questioned?

Complications can arise in any pregnancy, but the inability to get an abortion for medical reasons is likely to impose particular burdens on pregnant patients with chronic illnesses and disabilities, including psychiatric conditions, diabetes, and heart conditions. Pregnancy may take years off their lives, but this would not be enough for them to get an abortion in states that provide an exemption only in the case of a “medical emergency” that “necessitate[s] the immediate performance or inducement of an abortion.”

Thus, Dobbs is likely to have a deleterious impact on the ability of doctors to care properly for their pregnant patients, as well as for some women who are not pregnant. The AMA condemned the decision as “an egregious allowance of government intrusion into the medical examination room, a direct attack on the practice of medicine and the patient-physician relationship, and a brazen violation of patients’ rights to evidence-based reproductive health services.” In the weeks after the Dobbs decision, there were reports of profound changes in other medical care, including for ectopic pregnancies and for women with lupus, which is treated with a medicine that can cause miscarriage.

There are no exceptions for pregnancies that result from rape or incest in Alabama, Arkansas, Florida, Kentucky, Louisiana, Missouri, Oklahoma, Ohio, South Dakota, Tennessee, or Texas. The rationale is that it is unjust to end a pregnancy because its father is a rapist. Those who favor exceptions for rape and incest regard it as equally unjust to force women to continue a pregnancy for which they have no responsibility.

The Impact of Dobbs Beyond Abortion

The loss of abortion rights is real and of great concern to many Americans, not only because of the impact this will have on the lives of women and their families, but also because a rejection of the constitutional right to privacy and substantive due process could have effects beyond abortion. On the face of it, the analysis in Dobbs applies to other rights that the Supreme Court has upheld, including the right of both married and unmarried couples to use contraceptives (Griswold v. Connecticut, 1965, and Eisenstadt v. Baird, 1972), the right to marry a person of a different race (Loving v. Virginia, 1967), the right to engage in private, consensual sexual acts (Lawrence v. Texas, 2003), and the right to marry a person of the same sex (Obergefell v. Hodges, 2015). None of these rights are mentioned in the Constitution, nor are they deeply rooted in this Nation’s history and tradition. This means, in the words of the dissenters (Breyer, Sotomayor, and Kagan) that “one of two things must be true. Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid-19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.”

The majority insisted that its decision “concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” But if other precedents fail the test for determining constitutional rights provided in Dobbs, why aren’t these cases also wrongly decided?

Same-Sex Marriage

In his separate concurring opinion, Justice Thomas forthrightly accepted this implication, saying, “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” Thomas, unsurprisingly, did not mention Loving, perhaps because he assumes that discrimination based on race is prohibited by the Fourteenth Amendment’s guarantee of equal protection. The dissenters, however, note that the right to marry someone of a different race was not protected at the time of the adoption of the Fourteenth Amendment any more than the rights to abortion, contraception, to engage in private, consensual acts, or to marry a person of the same sex.

While anti-miscegenation laws are unlikely to garner much public support, the same may not be true for LGBTQ rights protected by Lawrence and Obergefell. Some far-right Republicans have expressed an interest in ending same-sex marriage. Texas Attorney General Ken Paxton has said that he would defend the state’s defunct sodomy law if the Supreme Court were to follow Thomas’s suggestion and revisit Lawrence.

Contraception, IVF

It seems unlikely that there would be much enthusiasm in the states for banning contraceptives in general, although some conservatives might favor rolling back the sexual revolution that stemmed from the Pill. Presumably, that would satisfy the rational-basis test that the Court identified as the standard for abortion restrictions or prohibition. Moreover, some forms of contraception, such as IUDs, that prevent a fertilized egg from implanting, might be prohibited under laws like Oklahoma’s that define persons as human beings from conception onwards.

IVF could also be adversely affected by Dobbs, because of the routine practice of discarding embryos. This occurs for two reasons. First, the creation of excess embryos enables fertility doctors to implant only one or two embryos per cycle, and to freeze the remainders for future use. This protects women from having to go through the onerous process of egg retrieval in future pregnancies. Freezing embryos has also facilitated single embryo transfer for good-prognosis patients, which has resulted in fewer twins and higher-multiple births, which are riskier for both mothers and babies than singleton births.

Second, it is now routine in IVF to test embryos for chromosomal defects and to discard affected embryos. This improves the chances for a successful pregnancy since embryos with chromosomal defects are less likely to implant and to miscarry. At this point, embryos created in labs are not explicitly targeted by state laws that ban abortion. Trigger laws in most states are aimed at preventing the termination of pregnancy, not regulating IVF embryos. That could change. A spokeswoman for Students for Life Action, a large national anti-abortion group, says that they are looking at IVF: “Protecting life from the very beginning is our ultimate goal, and in this new legal environment we are researching issues like IVF, especially considering a business model that, by design, ends most of the lives conceived in a lab.”  Ironically, laws intended to prevent the termination of pregnancies might deprive infertile couples from having a successful pregnancy.

On February 16, 2024, the Supreme Court of Alabama held that frozen embryos are children with respect to Alabama’s wrongful-death statutes. Some have claimed that this will disallow the discard of embryos by IVF clinics, but that is not obvious. Wrongful-death suits must demonstrate negligence, not simply causing death. Nevertheless, the implications of the court’s decision are unclear, creating anxiety among IVF providers and patients. The University of Alabama health system is pausing in vitro fertilization treatments while considering the implications of the court’s decision.

Care for Miscarrying Patients

Another area of concern is the medical care given to women with wanted pregnancies who miscarry. In what is known as a “missed miscarriage,” the fetus dies in the womb but is not expelled from the woman’s body. In an “incomplete miscarriage,” not all of the fetal tissue is expelled. These situations can cause infection that poses a threat to the woman’s life. The medical options are waiting and hoping that the woman miscarries naturally or intervening medically with either a surgical procedure (D&C) or abortion medication to remove the fetus or fetal tissue. Because these interventions are also used in abortion procedures, outlawing abortion could have a chilling effect on what doctors are willing to do.

In states with abortion bans, there are reports of doctors declining to perform any procedure that could be seen as an illegal abortion. In some cases, women have had to wait to miscarry, which could take weeks. Not only does this impose added emotional stress on women who have lost a wanted pregnancy, but it could even cost their lives. This happened in Ireland in 2012. Savita Halappanavar, 17 weeks pregnant, was admitted to hospital after a miscarriage was deemed inevitable. When she did not miscarry after her water broke, she discussed having a termination with the attending physician. This was denied because Irish law at the time forbade abortion if a heartbeat was still detectable. While they waited for the fetus’s heart to stop, Savita developed sepsis and died. The case was instrumental in getting abortion legalized in Ireland.

So far, no woman in the U.S. has died as a result of restrictive abortion laws, but some have come close. An ob-gyn in San Antonio, Tx., had to wait until the fetal heartbeat stopped to treat a miscarrying patient who had developed a dangerous womb infection. The delay caused complications which required her to have surgery, lose multiple liters of blood, and be put on a breathing machine. Texas law essentially requires doctors to commit malpractice.

Landmark cases like Quinlan (1976) and Cruzan (1990) relied on a constitutional right of privacy and substantive due process. The rejection by the Court of these principles could threaten well-established rights of patients to refuse life-saving care and to stipulate their wishes in that regard in advance directives.

At this point, it is impossible to predict all of the effects of overturning Roe and Casey. This much is clear: the battle over abortion rights is far from over.

Bonnie Steinbock, PhD, a Hastings Center fellow, is professor emeritus of philosophy at The University at Albany/State University of New York.