From Bioethics Briefings
- Abortion was legalized in 1973, but the topic remains controversial.
- In recent years, several states, including Texas and Oklahoma, have passed abortion bans early in pregnancy.
- In a draft majority opinion that was leaked to Politico in May 2022, Supreme Court Justice Samuel Alito argued that Roe and a subsequent case, Casey (1992) were wrongly decided and should be overturned.
- A central ethical question in the abortion debate is over the moral status of the embryo and fetus.
- Opinions range from the belief that the fetus is a human being with full moral status and rights from conception to the belief that a fetus has no rights, even if it is human in a biological sense. Most Americans’ beliefs fall somewhere in the middle.
- Moral philosophers from various perspectives provide nuanced examinations of the abortion question that go beyond the standard political breakdowns.
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.
In the landmark case of Roe v. Wade (1973), the Supreme Court struck down all state laws prohibiting abortion. Roe has remained the law for the last 50 years. That may be about to change. In a draft majority opinion that was leaked to Politico in May 2022, Justice Samuel Alito argued that Roe and a subsequent case, Casey (1992), were wrongly decided and should be overturned.
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 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.
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.
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.
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 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.
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.
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 a 5-4 decision to reverse Roe a real possibility.
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.
The potential consequences of overturning Roe
The draft Supreme Court opinion, leaked in May 2022, that argued that Roe and Casey should be overturned pertains to Dobbs v. Jackson Women’s Health, which concerns a Mississippi law banning all abortions after 15 weeks gestational age except in medical emergencies and in the case of severe fetal abnormality. This is the first case the Supreme Court has taken in which a state is directly asking the Court to rule that there is no constitutional right to abortion.
The Court’s decision is not expected until late June or early July 2022. The threat to abortion rights is real and of great concern to many Americans, not only because of the impact this would have on women’s lives, but also because a rejection of the constitutional right to privacy could have effects beyond abortion. Whether these fears will be realized depends not only on whether Roe is overturned, but also the judicial basis for doing so.
If Roe were struck down, the matter of abortion would be returned to the states. It is expected that about half of the states would continue to allow abortion, while the remaining states would ban or restrict it.
The potential consequences to women’s lives and health are grave. Laws like Oklahoma’s that define persons as human beings from conception onwards might not only outlaw abortions, but also some forms of contraception, such as IUDs that prevent a fertilized egg from implanting, and standard IVF procedures, such as testing and discarding pre-implantation embryos found to have defects that make them unlikely to result in a successful pregnancy. In addition, doctors might be leery of performing abortions when necessary to protect the woman’s life or health. At present, all of the potential anti-abortion laws make an exception for “medical emergencies” but 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? Will doctors be willing to take the risk of possible jail time if they make a call that is later questioned?
A related issue 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 pose 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. Doctors may be afraid to perform any procedure that could be seen as an illegal abortion. This may incline them to opt for waiting for women to miscarry, which could take weeks. Not only would this impose added emotional stress on women who have lost a wanted pregnancy, but could even risk 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.
Some have voiced the fear that overturning Roe, and in particular the notion of a constitutional right to privacy, could have implications in other unrelated areas. Over the decades, the Supreme Court has ruled that the Constitution forbids states to enact laws against sodomy in consensual adult encounters (Lawrence v. Texas, 2003), to refuse marriage licenses to couples of different races (Loving v. Virginia,1967), or of the same sex (Obergefell v. Hodges, 2015). While a number of states might like to reinstate such laws, it should be noted that the Court’s decisions in these cases were based, not on a right to privacy, but on the equal protection and due process grounds. Several legal experts have suggested that the right to abortion might have been better defended on these grounds as well.
Bonnie Steinbock, PhD, a Hastings Center Fellow, is professor emeritus of philosophy at The University at Albany/State University of New York.
- Linda Greenhouse and Reva Siegel, “Casey and the Clinic Closings: When ‘Protecting Health’ Obstructs Choice,” Yale Law Review 125 (2016): 1428-1531.
- Bonnie Steinbock, Life Before Birth: The Moral and Legal Status of Embryos and Fetuses, 2nd edition (Oxford University Press, 2011).
- Ronald Dworkin, “The Court and Abortion: Worse Than You Think,” New York Review of Books, May 31, 2007.
- Margaret Olivia Little, “The Morality of Abortion,” in Christopher Wellman and R.G. Frey, eds., A Companion to Applied Ethics, Blackwell Publishing, 2003.
- David Boonin, A Defense of Abortion. New York, NY: Cambridge University Press, 2002.
- Jeff McMahan, The Ethics of Killing: Problems at the Margins of Life (Oxford University Press, 2002).
- Susan Dwyer and Joel Feinberg, eds. The Problem of Abortion. Belmont, CA: Wadsworth Publishing Co., 1996.
- Sidney Callahan and Daniel Callahan, eds. Abortion: Understanding Differences. New York, NY: Plenum, 1984.
- Kristin Luker, Abortion and the Politics of Motherhood. Berkeley, CA: University of California Press, 1984.
- Don Marquis, “Why Abortion Is Immoral,” Journal of Philosophy, April 1984.
- Donald H. Regan, "Rewriting Roe v. Wade." Michigan Law Review, August 1979.
- Mary Anne Warren, “On the Moral and Legal Status of Abortion,” The Monist, January 1973.
- Judith Thomson, “A Defense of Abortion,” Philosophy and Public Affairs, Winter 1971.
- Ethics and Abortion Resources from The Hastings Center
- Bonnie Steinbock, PhD
- Thomas H. Murray, PhD
- Maggie Little, BPhil, PhD