ABORTION
From Moral Issues that Divide us, by James Fieser
Home: https://storage.googleapis.com/jfieser/160/Index.html
2008, updated 9/1/2024, CC BY-NC-ND 4.0
CONTENTS
Introduction
Background
Fetal Development
Abortion Methods
In vitro Fertilization and Stem Cell Research
What People Think
Ethical Issues
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
The "Future Like Ours" Argument and the Right to Life
Balancing the Fetus's and Woman's Rights
Public Policy Issues
Supreme Court Decisions on the Right to Abortion
Anti-Abortion Strategies
Abortion Laws Returned to the States
Conclusion
Study Questions
INTRODUCTION
Olivia's story here represents the average woman who has an abortion in the United States, as statistics here suggest (Sanger-Katz, 2021):
In their 20s (60%)
Non-white (66%)
Attended college but has not graduated (41%)
Below the poverty line (49%)
Never married, not cohabitating (46%)
Has one or more children already (60%)
No previous abortions (58%)
Abortion prior to week 10 (79%)
Had a surgical abortion (56%)
Voted for Biden in 2020 (68%)
But women of childbearing age from all demographic segments often face unplanned pregnancies in situations where there is no easy resolution. Abortion is one option, chosen by approximately 900,000 women annually in the U.S. roughly half the number at its peak in 1990. It is perhaps the most contentious moral issue of our time.
BACKGROUND
When discussing abortion, a common mistake is to assume that all abortions are identical, leading to the blanket judgment that they are either universally immoral or universally permissible. Abortion, though, involves a wide range of scenarios, each varying in critical factors such as the fetus's age and health, the mother's well-being, and the potential impact on society. Each scenario ideally requires an individual moral assessment. In this section, we will explore some of these factors.
Fetal Development
We begin with basic facts about fetal development and the associated medical procedures. A starting point is the terminology used to describe the stages of fetal growth and the methods used for abortion.
The fetal development process spans approximately nine to ten months, or 40 weeks, and is divided into three trimesters. In the first trimester, fertilization occurs when the male sperm and female egg merge, forming a single-cell zygote. Through rapid cell division, by the third day, it consists of about 100 cells. By the second week, this cluster of cells attaches to the uterus, developing into an embryo. By the third week, the embryo undergoes gastrulation, a critical stage where it reorganizes into three layers, signaling the point beyond which it can no longer divide to form identical twins. By the fifth week, the embryo's brain begins to form, the heart starts beating, and it takes on some external features typical of vertebrates. By the eighth week, it is capable of slight motion, and its eyes begin to form. The second trimester begins around the 13th week, and the embryo is now referred to as a fetus, measuring about an inch and a half. As the fetus grows, the mother typically starts to feel movement between weeks 16 and 20, an event known as quickening. By the start of the third trimester, around 24 weeks, the fetus develops regular brain wave patterns and could potentially survive outside the womb, a milestone known as viability. The fetus continues to mature during the third trimester, and by weeks 35-40, it is about 20 inches long and fully developed for birth.
Only about half of fertilized human eggs result in a live birth, with miscarriage rates ranging from 25% to 75%. The majority of miscarriages occur during the first trimester, often so early that the woman may not even be aware of it. This high miscarriage rate reflects a natural screening process, where the woman's body often rejects embryos showing signs of abnormality. This process acts as a protective mechanism, preventing the continuation of pregnancies unlikely to result in a healthy birth. However, around five percent of problematic fetuses evade this natural selection, leading to the birth of infants with congenital issues. This aspect of fetal development has direct implications for the abortion debate, especially in cases involving severely deformed fetuses. One might argue that if the natural screening process fails, intervention through abortion could be seen as an extension of this protective mechanism.
Abortion Methods
In the abortion debate, "abortion" typically refers to the intentional termination of a pregnancy and the expulsion of the embryo or fetus. Abortion methods vary, and can be employed at almost any stage of fetal development.
Emergency contraception, commonly known as the "morning-after pill," is a method used to prevent pregnancy after unprotected intercourse. It contains high doses of hormones that can work in three ways: delaying ovulation, altering cervical mucus to block sperm, or, less commonly, preventing a fertilized egg from implanting in the uterine wall. Medical professionals generally do not consider preventing implantation to be a form of abortion, as pregnancy is typically defined as beginning at implantation. However, some individuals might view it differently. Emergency contraception is most effective within 72 hours of intercourse, with certain types remaining effective up to five days, though with decreasing efficacy. A significant drawback is the need for quick decision-making and easy access to the drug, which can be challenging for many women.
If a woman misses the opportunity to use emergency contraception, the next option available is a medication-induced abortion using a drug called mifepristone, more commonly known as RU-486. This drug is typically taken in combination with a second medication, misoprostol, to effectively terminate a pregnancy. Often referred to as the "abortion pill," this method is about 97% effective when used within the first 70 days (10 weeks) of pregnancy. Medication abortion accounts for a significant and growing proportion of all abortions in the U.S., currently approaching half. Unlike emergency contraception, which prevents pregnancy before it begins, mifepristone works by blocking the hormone progesterone, which is essential for maintaining a pregnancy. Without progesterone, the uterine lining breaks down, and the embryo is expelled. While the window for using mifepristone is broader than that of emergency contraception, it is still time-sensitive and requires use within the first 10 weeks of pregnancy. Practical challenges to using RU-486 include the emotional weight of the decision, which some women may struggle with in this short timeframe, and the difficulty of accessing a healthcare provider who can prescribe the medication, particularly in regions with restrictive laws.
For pregnancies beyond the early stages, surgical methods are used. Vacuum aspiration is a common procedure during the first trimester, typically up to about 12-14 weeks. This method involves using a suction device to remove the embryo or fetus from the uterus. While this procedure is relatively safe and usually takes about 15 minutes, there are some risks of complications, such as infection or uterine injury. It is also more costly than early medication-induced abortions. Dilation and curettage (D&C) is another surgical option, often used for early pregnancy loss or abortion in the first trimester. It involves dilating the cervix and using a curette to remove tissue from the uterus. For pregnancies between 15 and 20 weeks, dilation and evacuation (D&E) is the preferred method. This procedure involves dilating the cervix and removing the fetus with surgical instruments and suction. While instillation methods, involving the injection of a chemical solution into the amniotic sac, were used in the past for later-term abortions, they have largely been replaced by safer and more effective methods like D&E in modern medical practice. Later-term abortion methods can be particularly distressing for many people, and for some, these feelings lead them to view such procedures as morally wrong. However, it's important to recognize that emotional reactions, while significant, do not necessarily determine moral truth.
In Vitro Fertilization and Stem Cell Research
The controversy surrounding abortion has significant implications for other areas of biotechnology, particularly in vitro fertilization (IVF) and stem cell research. IVF, commonly referred to as "test tube babies," involves fertilizing a human egg with sperm outside the woman s body, typically in a laboratory dish. This procedure provides a solution for individuals or couples who face challenges conceiving naturally.
The IVF process begins with fertility drugs that stimulate a woman s ovaries to produce multiple eggs. Up to ten eggs are then retrieved and fertilized with sperm. As the fertilized eggs divide, they develop into clusters of cells. After three to five days, up to three of these developing embryos are implanted in the woman s uterus to increase the chances of a successful pregnancy. The remaining embryos are usually frozen in liquid nitrogen for future use, which can reduce the cost of subsequent IVF cycles. Properly frozen embryos can remain viable for many years there s even a documented case of a successful pregnancy from an embryo that had been frozen for 13 years. When embryos are no longer needed, they are often destroyed. Currently, an estimated one million frozen embryos are stored in the United States.
While IVF is now a widely accepted practice, it still presents ethical challenges. One concern is the creation of a large number of embryos, many of which may never result in a live birth. This concern is somewhat tempered by the fact that natural pregnancies also have a high miscarriage rate, meaning that any attempt at pregnancy carries significant risks. However, the large number of stored embryos is also driven by financial considerations. It is more cost-effective to retrieve and fertilize multiple eggs at once rather than repeating the process several times. If creating surplus embryos raises ethical questions, it can be difficult to justify it solely based on cost savings. Additionally, ethical concerns arise when parents choose to destroy unused embryos, as this can seem to treat them as disposable property. Legally, these embryos are typically considered the property of the parents, who have the right to decide their fate.
A related issue in biotechnology that intersects with the abortion debate is stem cell research. Stem cells are unique because they do not have a predetermined function; they can develop into any type of cell in the body, such as heart, brain, or bone cells. The specific type of stem cells used in medical research are known as pluripotent stem cells, meaning they have the potential to become many different types of cells. Stem cells hold tremendous promise for treating devastating diseases like Alzheimer s, as they can replace damaged tissue when introduced into the body.
The ethical controversy surrounding stem cell research centers on the source of these cells, which are often derived from human embryos or zygotes. Many stem cells used in research come from unused embryos at IVF clinics. These embryos, typically around a week old and consisting of about 100 cells, are destroyed in the process of harvesting stem cells. Thus, a promising avenue of medical research is entangled with the moral debate over the status of embryos and zygotes. This ethical dilemma has influenced government funding for stem cell research, which is significant since the government is a primary source of funding for scientific research. However, ongoing advancements in stem cell technology are increasingly focused on finding ways to produce stem cells without relying on embryos, potentially sidestepping these ethical concerns. If successful, this could resolve much of the moral controversy surrounding stem cell research.
What People Think
The reasons women cite for seeking abortions are varied. Some are a matter of medical necessity for the woman s life, such as an ectopic pregnancy. It may also be a necessity for her physical health, even if her life is not at risk, such as severe preeclampsia. Some may be for reasons of fetal health, such as a diagnosis of anencephaly. Other motivations surround the manner in which the pregnancy took place, even when the life of the mother or condition of the fetus is not at issue. These include whether the pregnancy resulted from rape or incest, or if the woman is a minor. Others involve undue hardships, such as pregnancy resulting from infidelity, pregnancy that would disrupt the woman s education, career, or lifestyle. Additionally, some women may seek an abortion because they are not emotionally or mentally prepared to be a parent, or because they need to focus on other children they already have. Others might be when a woman cannot properly care for a newborn because of mental health issues, financial limitations, or the lack of a support system. Of the above reasons for having an abortion, the three most common ones are financial circumstances, timing, and partner-related problems (www.medicalnewstoday.com).
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 politicians, news 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 are national surveys which reflect this (from news.gallup.com):
Do you think abortion should generally be legal or generally illegal during each of the following stages of pregnancy? (5/2/2022)
"In the first three months of pregnancy"
Legal: 67
Illegal: 27
Depends: 6
Unsure: 2
"In the second three months of pregnancy"
Legal: 36
Illegal: 55
Depends: 7
Unsure: 2
"In the last three months of pregnancy"
Legal: 20
Illegal: 71
Depends: 8
Unsure: 1
"With respect to the abortion issue, would you consider yourself to be pro-choice or pro-life? (5/2/2022)
Pro-choice: 55%
Pro-life: 39%
Mixed: 4%
I don't know what the terms mean: 1
"Please tell me whether you personally believe that in general it is morally acceptable or morally wrong. How about medical research using stem cells obtained from human embryos??" (5/22/2022)
Morally acceptable: 63%
Morally wrong: 32%
Depends on the situation: 3%
No opinion: 2%
The surveys above suggest that the country is largely in agreement that abortions during the first trimester should be legal, and those during the third trimester illegal. The debate is mainly about the second trimester, and, even there, the majority sides with illegal. Note the discrepancy between those who consider themselves pro-life (39%) and those who believe that abortion should be illegal during the first three months of pregnancy (27%). One would think that the two percentages would be the same, that is, to be pro-life implies that one believes abortions should be illegal during the first three months of pregnancy. The difference, though, may be accounted for when considering that "pro-life" is a general label or stance that one might wish to take on, which may not always align with one's judgement about particular cases of abortion.
ETHICAL ISSUES
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 looks unsuccessful.
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 specific biological 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. For Aquinas, 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. The fetus starts out as a biological mass with no functional parts that are distinctively human, and as such resemble many early-stage animal fetuses. In time, though, a distinctively human form emerges with rudimentary cognitive functions. 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 there are 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, granting moral personhood to all animal life, including bugs, 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 critera 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 a question of ongoing debate. 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 human 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 we are 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 is unsuccessful.
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 PM 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 PM 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 is unsuccessful.
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 to miscarry 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 fetus's 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 healthy 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. But in early stages of pregnancy, the fetus's natural growth potential towards personhood is about as likely as a flip of a coin. We may still wish to err on the side of caution and presume that a particular early-stage fetus that we are examining will be a lucky one and indeed have that natural growth potential. This, though, is a presumption based on an ethical value that a society or social group might currently hold, and not one that rigidly follows from natural growth potential. Thus, the potentiality argument is suggestive, but not definitive.
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 multi-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 pregnancy timeline, 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.
The "Future Like Ours" Argument and the Right to Life
One of the more influential criticisms of abortion is that given by contemporary philosopher Don Marquis in his essay "Why Abortion is Immoral" (1989). His basic argument is straightforward: killing in general is wrong because it deprives an individual of a value-filled "future like ours" (FLO); most abortions, therefore, are immoral since they deprive fetuses of a similar future that contains value. The first step in Marquis' argument is to establish that the wrongness of killing a human being owes at least in part to the fact that it deprives that person of a value-filled future, similar to what you and I have. This intuition, he argues, finds support in our everyday experiences of why we view death as such a bad thing. First, we hold killing to be among the gravest offenses since it deprives the victim of more than what any other crime might possibly do. Whatever you value most in life, death permanently wipes that away. Second, young people with terminal illnesses state outrightly that their central tragedy is the fact that their future is being taken away from them. Third, many people believe it is morally permissible to mercy kill terminally ill people who are in chronic pain and request to die quickly. To the extent that such mercy killing is morally permissible, it is so precisely because the person lacks a future of any obtainable value. Indeed, the person in question has only the opposite: a life of unbearable pain with no prospect of survival. Applying this rationale to fetuses, we must all agree that the average human fetus has a value-filled future in the way that our futures value-filled. Therefore, all other things being equal, it would be just as wrong to abort a human fetus inside the womb as it would be to kill a human outside the womb.
Does Marquis' "future like ours" argument against abortion succeed? Here are two criticisms of it. The first problem is that his view is just a disguised way of asserting that fetuses have personhood. Marquis directly rejects personhood as a starting point abortion discussions on the grounds that "personhood theories of the wrongness of killing. . . . cannot straightforwardly account for the wrongness of killing infants and young children". That is, for whatever criterion of personhood you propose, such as rationality, if that criterion does not apply to fetuses, it will also not apply to the young who lack that cognitive state. Marquis believes that his "future like ours" argument avoids this problem since it would apply equally to fetuses or infants, insofar as they would both have the same valuable futures. However, while Marquis avoids the term "personhood" in his argument, he nevertheless implicitly relies on it since his criterion of "a future like ours" is just one more proposed criterion of personhood. For, he dodges the important question, what cognitive abilities must I possess to have the future that I do? Clearly, my future is not the same as that of a rock, or a tree, or a worm. It is instead a future defined by my cognitive abilities, which raises me above the level of lower animals. That special cognitive ability appears to be the capacity to conceive of myself as existing in time, which, as we've seen, is a common criterion of personhood among philosophers. That is, "a future like mine" is possible only because I have this criterion of personhood that I can conceive of myself as existing in time, and "a future like mine" is also valuable only because I have this criterion. When this underlying assumption is revealed, Marquis' criterion of "a future like mine" does not necessarily show the wrongness of abortion. For, a fetus does not have the capacity of conceiving of itself as existing in time in the that way I do.
The second problem with Marquis' view is that it is just the potentiality argument in disguise and, as such, it has precisely the same problems as the potentiality argument. For, the fetus only has a potential future like ours, not an actual future like we do right now. The future I have certainly holds out the prospect of being valuable. But that prospect is not a distant one that will only actualize several months from now. The value of my future is actualized immediately as each second passes. In each future second, I engage in my surrounding environment through the lens of my past memories and future anticipations, and from this I carve out a meaningful plan for my life. With a bit of luck, that plan will be a pleasant one. But, even if it involves sadness, frustration or pain, it still has value because in those very moments of suffering, I still have hope that it will be better. Thus, the value of my future consists in a cognitively high-level experience that occurs in each successive conscious moment that I am alive, and my future is not just some abstract set of events that come about in the distant months or years ahead of me. We may agree with Marquis that this continuously lived future is at least in part what gives me a right to life and makes it wrong for someone to kill me. But this is not the case with a fetus which lacks the cognitive abilities to experience a continuously lived future the way that I do. Instead, the fetus's future is only an abstract set of events that might occur much later in time. The fetus certainly has the potential to experience a continuously lived future, but, as we have seen, it is a potential defined by its reliance on the womb and its high rate of miscarriage. In short, the fetus has only a potential future like mine, not an actual lived future as I do, and that potential is insufficient to confer a right to life on it.
On the whole, then, the case for a fetus's right to life appears to be unsuccessful, since arguments from personhood, potentiality, biological continuity and "a future like ours" all have shortcomings. But the failure of these arguments does not necessarily mean that fetuses have no right to life. It's just that a convincing case has not yet been made for such a right. If we choose to believe that it has a right to life anyway, through something like an assertion of moral faith, that is our personal prerogative, and it is no more irrational to do this than it is to say that lower animals have some kind of right to life.
Balancing the Fetus's and Mother's Rights
For the sake of argument, let us now assume that embryos and fetuses indeed 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 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 hardline 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. She writes, "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 must 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."
The first two of Thomson's thought experiments may be more compelling than the third. But do any self-evidently succeed? The answer is no. Each of her thought experiments rests upon an analogy: a violinist biologically attached to a woman (rape); an ever-growing baby crushing a woman in her home (life at risk); people-seeds entering a tear in a window screen (contraception failure). By their very nature, no analogy is a perfect parallel to what is designed to represent. As the saying goes, all analogies break down at some point. Suppose that you oppose abortion in all three cases that Thomson discusses. You will undoubtedly be able identify a critical point of disanalogy between her three scenarios and the three cases of abortion. That is, your convictions will lead how you view the analogies, not the other way around. Consider the following possible disanalogies.
In the violinist scenario, the analogy fails to account for the unique biological connection between a mother and her fetus, even if the pregnancy is the result of rape. Unlike the violinist, the fetus is biologically related to the mother and is a natural part of her reproductive process, whereas the violinist s dependency was artificially imposed. In the ever-growing baby scenario, the two threats to life may differ. The threat of the baby is external and originates from an entity separate from the woman. In a life-threatening pregnancy, though, the threat originates within the mother's body as an integral part of her biological system. We might feel a stronger moral obligation to protect oneself from an external aggressor than from a condition arising from our own bodies, even if that condition poses a lethal threat. In the people-plant scenario, the house is inanimate property, where the owner has broad discretion over what enters and remains within that space. The pregnant woman's body, though, is not inanimate property but a living organism with a fetus symbiotically integrated into it, and the scope of her discretion regarding the threat from the fetus may not be exactly the same.
To simplify, the disanalogy in all three scenarios is between external factors and internal ones, and this distinction may alter how we perceive the moral obligations of the woman. Again, the mere presentation of these three analogies by themselves will not shed new light on one's abortion convictions. The reason is that abortion is a one-of-a-kind situation, with no close parallels that we can appeal to as precedents to definitively solve the issue one way or the other. This is why the abortion debate is so intractable. Nevertheless, what Thomson's analogies do successfully accomplish is the recognition that there may be 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. What these extenuating circumstances are will probably not be settled by logic, but by one's sub-culture and how embedded one is in it.
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. This 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, which, after a half a century was overturned by a new conservative Supreme Court.
Supreme Court Decisions on the Right to 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 when 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, however, 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 the 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 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.
Anti-Abortion Strategies
Conservative critics of the Roe and Casey decisions sought for ways to reverse them or at least reduce their effects. One effort was to get more conservative justices on the Supreme Court who would revisit the issue and rule differently. Another conservative strategy was 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 sought a more modest 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 were proposed every few years, none succeeded.
Yet another strategy was 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 were 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 involved 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 did not pass. However, Arizona passed a fetal pain law criminalizing abortion after 20 weeks. This law was also overturned.
Abortion Laws Returned to the States
In 2022, a new Supreme Court with a conservative supermajority overturned Roe vs. Wade in a 6-3 judgment. The case, titled Dobbs v. Jackson Women's Health Organization, involved a Mississippi law that banned abortions after 15 weeks with exceptions only for medical emergencies or severe fetal abnormalities. The majority opinion stated that "the Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision". As a result, the Court's decision returned the issue of abortion regulation back to individual states. Thirteen states immediately expanded restrictions on abortion through "trigger laws", that is, through anti-abortion legislation that was previously enacted by a state knowing it could not be enforced until a triggering event would put it into effect at a later time. The Dobbs decision was that triggering event. A dozen other states enacted abortion restrictions through either new legislation or ballot initiatives. Some of these restrict abortions after 12 weeks, and others ban abortion completely or with extremely limited exceptions. By contrast, sixteen have passed legislation to protect access to abortion. President Bided responded to the Dobbs decision by issuing executive orders that help assure access to emergency contraception and extend legal protection to women who seek out of state abortions.
The Dobbs decision has raised questions about further changes to laws pertaining to abortion and similar liberties. This issue was addressed in a U.S. Congressional Hearing titled "What's Next: The Threat to Individual Freedoms in a Post-Roe World" (July 4, 2022). In this, law professor Melissa Murray argued that the analytical framework of the Dobbs decision extends beyond abortion rights and affects other liberties granted by previous Supreme Court decisions that were based on the right to privacy. Accordingly, she argues, "the Dobbs decision invites reconsideration of Griswold v. Connecticut, which protects the right to contraception; Obergefell v. Hodges, which secures the right to same-sex marriage; Lawrence v. Texas, which protects the right to private, consensual sexual relations; and many other decisions in the Court's long line of substantive due process cases". Aside from what the Supreme Court might do, Representative Jerrold Nadler stated that there is evidence "Republicans and anti-abortion forces are determined to enact a nationwide ban on abortion the next time they control the political branches of the Federal government," that is, when Republicans again control Congress, the Presidency and the Supreme Court.
CONCLUSION
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. 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. 3. Religious tradition: religious scriptures and traditions suggest that personhood begins at the moment of conception and that abortion is wrong. 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.
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. 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. 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. 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.
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 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.
Aquinas, Thomas. 1485. Summa Theologica.
Barash, David. 2007. Natural Selections. New York: Bellevue Literary Press.
Marquis, D. B. 1989. "Why abortion is immoral." Journal of Philosophy, 86, 183-202.
Plutarch, Placita.
Singer, Peter. 1979. Practical Ethics. Cambridge: Cambridge University Press.
Tertullian, Treatise on the Soul.
Thomson, Judith Jarvis. 1971. "A Defense of Abortion." Philosophy & Public Affairs 1(1).
U.S. House of Representatives. 2022. Judiciary Committee Hearing, What's Next: The Threat to Individual Freedoms in a Post-Roe World. July 4, 2022.
U.S. Supreme Court. 1973. Roe v. Wade.
U.S. Supreme Court. 1992. Planned Parenthood vs. Casey.
U.S. Supreme Court. 2016. Whole Woman's Health v. Hellerstedt.
Warren, Mary Anne. 1973. "On the Moral and Legal Status of Abortion." The Monist 57(4).
Sanger-Katz, Margot. 2021. "Who Gets Abortions in America?" New York Times. December 21.
STUDY QUESTIONS
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 of the potentiality argument for fetal personhood.
9. Explain the sperm-ovum criticism and the miscarriage criticisms of the potentiality argument for fetal personhood.
10. What is the biological continuity argument for fetal personhood?
11. What are the criticisms of the biological continuity argument?
12. What is Marquis' "future like ours" argument for the fetus's right to life?
13 What are the criticisms of Marquis' argument?
14. What are Thomson's three thought experiments that explain when the fetus's right to life can be overridden?
15. What are the problems with Thomson's thought experiment analogies?
16. Roe v. Wade has stipulations about the legal availability of abortions based on each of the three trimesters. What are those stipulations?
17. What are the four points upon which the Roe v. Wade was made?
18. What was the main impact of Planned Parenthood vs. Casey on the legal availability of abortion?
19. Explain the "human life amendment," "TRAP laws" and "fetal pain".
20. What was the main impact of Dobbs v. Jackson Women's Health Organization on the legal availability of abortion?
[Short Essay]
21. Short essay: pick any one of the following views in this chapter and criticize it in a minimum of 100 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.