Abortion

Abortion (as humans are concerned) consists in deliberately ending pregnancy. At present, this amounts to killing a fetus either directly or by causing a miscarriage. No part in the abortion debate thinks that abortion is per se a good thing, and therefore nobody is pro-abortion (‘Hey, Mary, how about a nice abortion today after a good cappuccino?’); nobody wants to see the number of abortions increase. So calling supporters of a woman’s right to choose ‘pro-abortion’ is misguided, to put it charitably. (That a lot of people fall for it does not make it less misguided. If a view is misguided, company does not make is less misguided, just more common). So, the issue is not whether abortion is a good thing we want to have more of, but whether a woman has a moral right to abort the fetus.

Since all want to see the number of abortions diminish, an interesting issue is how to achieve this common goal. As usual, there is disagreement, the recipes going from more and better contraception and sex education to ‘have sex only if you want a baby.’ We won’t go into this.

Here are some basic facts about abortion in the US. Note that 61% of abortions occur before 9 weeks and about 80% before 10 weeks.

Biologically there are four main stages of an unborn human: zygote (from conception to 4-5 days); blastocyst (from 5 days to implantation in the uterine wall- about 9 days); embryo (from implantation to first sign of brain waves—about eight weeks); fetus (from about eight weeks to birth).  Often, in non-medical setting the term ‘fetus’ is used to cover all stages.

Some specifically religious considerations

· The scholarly consensus is that the Bible has no direct injunction against abortion. So, both those who say that on biblical ground abortion is prohibited and those who say it’s permitted, have to infer their conclusion. As usual, we get the battle of the Bible, with different people reaching different conclusions by appealing to different passages. The only thing that seems clear is that the Bible by and large values women less than men and children from one month to five years of age less than women; no mention is made of babies younger than one month or fetuses (Leviticus 27: 1-7). Consistently, in terms of counting people babies younger than a month are excluded (Numbers 3: 15-16).

· In agreement with this general devaluing, in early rabbinical Judaism a fetus is not a full human being and therefore its killing is not murder. Today, in spite of differences in Jewish Law abortion is permitted to save the life and health (physical or psychological) of the woman. There is no consensus whether abortion is permissible in the first trimester to avoid giving birth to a severely malformed baby, or in the case of rape or incest. However, by and large the Jewish position is pro-choice.

· Historically, by and large the Christian position has been that abortion in early pregnancy, although sinful, does not amount to murder. Much of the debate has been about hominization, namely, when the fetus is ensouled. Traditionally, this was tied to embryology, and the mainline view was that early abortion, up to quickening, is permissible. Today, Christians are divided. For example, mainline European protestant denominations allow abortion to preserve the life or health of the woman. After the 5^th century, Catholics did not consider early abortion as murder until 1869, when Pius IX stated that abortion is homicide and forbidden in all circumstances. Although this claim is not declared an infallible pronouncement –it’s a proper subject of theological discussion, it has been confirmed in 1930 and in 1974. However, the termination of the pregnancy is permissible in some cases; for example, a woman suffering from an aggressive uterine cancer may undergo chemotherapy that will result is miscarriage because the miscarriage is foreseen but not intended and it is not the means by which the cure is produced (This is an application of the doctrine of double effect).

Thought Question: should one consider embryology in deciding when ensoulment takes place?

Thought Question: how about slippery slope arguments, like: we cannot fix a precise point at which the fetus is ensouled, and therefore we must say that it’s ensouled at conception? [Hint: how about being bald?]

More general considerations

Two issues are typically discussed:
 a) is the fetus a person?
 b) if it is, how do we solve conflicting claims?

A) The status of the fetus.

1. An argument for the immorality of abortion which immediately comes to mind is this:
 i. the fetus is an innocent human being
 ii. killing an innocent human being is very wrong because s/he has a right to life
 iii. Hence, abortion is very wrong

Problem:

Premise (ii) fails to distinguish between being genetically human and being a person.  It is persons who have a right to life. Killing humans is very wrong insofar as they are persons.  That is, belonging to the species Homo sapiens is not per se morally significant unless it is connected with being a person. It’s an open question whether a human fetus is a person or not.

2. When is a being a person?  It is clear that one who is self-conscious and acts on the basis of one’s moral beliefs qualifies as a person (ask yourself when you would call a being from outer space a person).  Obviously, any normal adult human being qualifies as a person under these criteria, and no fetus does.  However, it is perhaps possible to relax the personhood criteria somewhat.  Feinberg claims that five necessary and sufficient conditions are embedded in the commonsense notion of personhood:

1. being conscious, e.g. aware of one's surroundings.
2. being conscious of itself, i.e. being able to think of oneself as oneself at least at a rudimentary level.
3. being able to reason and know, e.g. plan, understand at least at a rudimentary level.
4. being able to have emotions.
5. being a sentient being, e.g. feel pain/pleasure.

NOTE: (1)-(4) are less problematic than (5). Perhaps (1)-(4) are enough for personhood.

So, a being who actually has (1)-(5) is a person and therefore has a right to life.
NOTES:

• A person in the commonsense use of the notion needn't have moral duties insofar as needn't even have a rudimentary moral system.  For example, a normal 3 year old baby is a person under these criteria, but can hardly be thought of as having moral duties.
• A person in the moral sense needn't be one in the legal sense (the latter has legal rights/duties on the basis of positive law and can be non-living, e.g. a corporation).

Thought Question: Does a newborn satisfy (1)-(5)? At what point are (1)-(5) so relaxed as to be satisfied by some (many?) animals?

3. Proposed extensional equivalents of moral personhood.

• strict potentiality: all and only those beings which actually have (1)-(5) or have within themselves the capacity to develop into beings which actually have (1)-(5). This is the standard position of those who consider abortion murder.
  NOTE: Hence, while spermatozoa and ova don't qualify, the embryo does.

Thought Question: does the zygote qualify?

Problem:

It seems that beings which have (1)-(5) potentially are merely potential persons, and consequently have at best merely potential rights. But a potential right is not a right any more than a potential meal is a meal.  A 9-year old citizen has a potential right to vote, but we don't admit her in the voting booth.
Reply:
having (1)-(5) potentially confers not actual full rights, but actual weak rights which grow stronger the closer the subject comes to having (1)- (5).
Duplication: The argument moves from almost qualification to a right to a weak version of the right, and the move is illicit.  The day before inauguration the would-be president has no right (not even a weak one) to command the armed forces.
NOTES:

· There’s a lot of debate on this. Thought Question: What do you think?

· Although a potential right is no right at all, and hence not a weak right, pro-choicers typically argue that the closer the subject is to having an actual right, the more interest we should have in the preservation of the subject in the light of the right it almost has. (Think of the security around the president elect).

Thought Question: if zygotes are persons, should we seriously engage in avoiding natural miscarriages (about 65% of cases –we are lucky to be alive; most of us don’t make it)?  Should we monitor women of child bearing age to make sure they don’t engage in behavior that may result in natural miscarriage?

Thought Question: By some estimates, if we avoided natural miscarriages there would be about 15% malformed babies instead of about 2%. Would we have a moral duty to take care of them, given that we forced them to be born?

4. Suppose that the proposed extensions of personhood and rights beyond the actual possession of (1)-(5) fail and that one should accept actual possession of (1)-(5) as the criterion for personhood and rights. Then abortion is never murder.

Problems:
The requirement of actual possession of (1)-(5) seems too strong:

• A normal adult doesn't satisfy (1)-(5) when he's asleep.  But certainly a sleeping adult is a person.
  Reply: there are two levels of actuality, first and second.  First actuality consists in actually possessing a capacity (e.g. one knows French) without exercising it (one is asleep).  Notice that first actuality is different from mere potentiality.

• A neonate does not have (1)-(5).  Hence, he's not a person, and consequently infanticide seems justified, which is surely wrong. Moreover, on utilitarian grounds sometime infanticide might be morally required, for example with anencephalic babies.
  Reply:
  Infanticide is wrong not on the basis of right to life, but on basis of our interest in protecting the lives of potential persons. The same sort of considerations shows that although abortion is not murder, society may regulate it.

Thought Question: is this reply satisfactory? Often people have very strong intuitions about this.

• It seems impossible to relax the personhood criteria enough to include human newborns and leave out some animals like non-human primates.

B) The problem of conflicting claims
The only thing that everybody agrees on, is that woman has full rights of her own. So, if the fetus has right of its own, then abortion involves a conflict of rights. There are two main cases here:

1. The fetus as the right to life in virtue of being a potential person

2. The fetus has the right to life in virtue of being an actual, full-fledged, person.

Suppose for the sake of argument that (1) it true. Then we are faced with two individuals, the fetus and the woman, a potential person and an actual person. If rights accrue to one in virtue of one’s personhood, the rights of the woman have precedence.

Problem: Presumably, rights are on a sliding scale in terms of importance. For example, my right to life is more important than your right to property. So, does ‘some’ right to life the fetus has trump the full right to property the woman has? How about her liberty? How about her ability to pursue happiness?

Thought Question: What do you think?

Suppose for the sake of argument that (2) is true. That is, assume, for argument's sake, that the fetus is a person.  Then, we are faced with opposing rights of two full-fledged persons.  In this case, there are three basic rights on which the right to have an abortion has been based:

1. Property rights over one's body.
There are several ways of presenting this point. The main problem is that property rights are less important than the right to life of persons. Property rights cannot justify murder.

2. The right to self defense
The intentional killing of a person seems justifiable in cases of self-defense involving survival, maiming, rape, perhaps even severe beating. But pregnancy and/or having an unwanted child can bring severe harm to a woman (think of cases of rape, much too many children, very difficult pregnancy).
Problem:
the standard cases of self-defense involve killing an aggressor; but the fetus is not an aggressor (not even an innocent one).
Thought Question: is it justifiable (though regrettable) to kill the innocent shield of a threat? (Thomson’s case of the tank with the baby).

NOTE: Hence, the right to self-defense at most allows abortion only if a woman's life is at substantial risk.  However, abortion to have a happy life or to improve one’s welfare is not justified because one cannot kill an innocent person in order to be happy.

3. The right to bodily autonomy
In the case of Thomson's plugged-in-violinist, it would be supererogatory to remain plugged.  Hence, in cases of unwanted pregnancy, it would be supererogatory, though not morally obligatory, to bring the fetus to term (to remain plugged). The violinist has a right to life but not to my body, Thomson claims.

Thought Question: is your intuition the same as Thompson’s? What’s the problem of appealing to intuitions?
Problem:
There's a disanalogy between abortion and the violinist case; the woman, by voluntarily having sex, is often co-responsible for the existence of the fetus.  But voluntariness entails responsibility, and therefore the woman's responsibility toward the fetus will be proportional to the degree of voluntariness. 

Thought Question: Can you think of interesting cases? Rape? Failure of contraceptive? Being swept along in the passion of the moment?

NOTE: At most, bodily autonomy guarantees only a limited right to abortion.

C. A Different Approach

Perhaps the preceding analysis has centered too much on the notion of right. Perhaps we should say that killing a fetus is wrong because it deprives it of a future that the person the fetus would become would enjoy. (This is Marquis’ FLO position; he claims that this is the reason why killing someone is wrong in general).

Note that this sort of consideration often comes up when discussing the alleged evil of death.

Problems:

‘Would enjoy’ needs clarification. Anybody can become almost anything in principle, but it’s very unlikely a mine slave will get a life she will enjoy. So, should we say ‘might reasonably expect to enjoy’? If so, there are two consequences:

1. The closer a fetus is to birth, the less likely that it will be damaged or die, and therefore the more wrong it is to kill it. This sounds good because it captures a very widespread intuition.

2. Suppose the fetus has very few chances of becoming a person with a life s/he’ll enjoy. Then it would be more permissible to abort it than a prospectively luckier fetus? Do we really want to say that a fetus in a miserable slum is less ‘valuable’ than one in a posh neighborhood?

3. Suppose that the woman, by having the baby, will severely diminish her chances of an enjoyable future and all but guarantee a miserable life for her newborn, while by aborting she’ll greatly increase hers. Would then abortion be justified?

Thought Question: What do you think? Does FLO suffer from impersonality, a bit like Utilitarianism is alleged to by some of its critics? More generally, can we really avoid talk of rights?

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ROE v. WADE and other major Supreme Court decisions

Roe v. Wade

A. The principals

The appellant was Jane Roe (a pseudonym), who challenged the constitutionality of Texas Statutes Articles 1191, 1192, 1193, 1194 and 1196 concerning abortion.  Her lawyer argued that the interference of the State of Texas in Roe’s private life was:

• a violation of the legitimate use of police powers of the state.
• a violation of Roe’s right to privacy, which had been established in  Griswold v. Connecticut.  This was tantamount to violating her right to due process and equal protection under the law (14th Amendment).

The appellee was the State of Texas.  It argued that:

• the anti-abortion statutes represent a legitimate exercise of the  police power of the state
• the fetus is a person and as such is protected under these laws.

B.

In Roe v. Wade, the Court addressed the Texas Statutes and attempted to determine why these statutes had been passed, and whether there were good reasons behind them consistent with the state interest in the police powers.  The Court came up with three possible reasons for the statutes:

1. These laws may be the product of Victorian social concern to discourage illicit sex. (This reason was not used by Texas, but it is a possible one.)
   Response: This is not the proper concern of the state.
   
2. These laws may reflect the state’s interest in protecting citizens from unsafe medical procedures.

Response: Even if this was the purpose of the laws, today abortions performed with appropriate medical supervision are safe.  

3. These laws reflect the state’s interest in protection of prenatal life.    Some argue that the fetus is a human person from conception and therefore the state has a right to prohibit killing fetuses.  Others do not make this claim but claim that the state has an interest in the protection of potential human life.
   Responses:
•  There is some scholarly support for the claim that 19th century laws were not designed to protect prenatal life.
•  If the laws were designed to protect prenatal life because it is a human person, the laws do not make sense.  If the fetus is a human person, then why is the physician (or person performing the abortion) not guilty of murder? Why is the mother not an accomplice to murder?  Why is attempted abortion not attempted murder?

C. The argument of the Court

The argument of the Court rests on the idea that there are three important interests at stake.

1. 1. The woman's interests
   The woman has an interest and a right to privacy ‘whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the district court determined, in the Ninth Amendment's reservation of rights to the people.’ (The reference to the ninth Amendment –the people retain rights not mentioned in the Constitution, is to be taken in conjunction with the Court’s decision in Griswold v. Conn. (1965), which found a right to privacy for married couples implied by other constitutional rights and even preceding constitutional rights. Just before Roe these rights were extended to individuals).
   NOTE: However, the Court argued that no rights or interests are absolute.  The issue, then, was to determine when other interests are sufficiently strong to override the woman's interest in privacy and liberty.
   
2. The interest of the State in Health and Safety of Citizens.
   The Court recognized the interest of the state to protect the health of its citizens by regulating the practice of medicine.
   
3. The interests of the State in protecting potential human life.
   The court recognized the interests of the state in protecting potential human life.
    NOTE:
• The Court determined that a fetus is not a person under the Constitution.  The Court revised the use of the word "person" in the Constitution and in other legislation and never found it used as a reference to the unborn. It concluded that fetuses legally have not been considered persons.
• With respect to the claim that human life (human personhood) begins at conception (and therefore legally we should include fetuses as persons) the Court reviewed the controversy. It concluded that the woman's important rights to privacy and liberty could not be overridden by the adoption of a controversial theory of the beginning of human life.

D. Conflicting interests and the stages of pregnancy

1. First trimester

Since abortions at this early stage are extremely safe, the state has no compelling interest to regulate beyond its normal interest in protecting health.  Because of the nature of the fetus at this early stage, the State's interest in protecting potential life is also minimal.  Consequently, these other interests are not sufficiently strong to interfere in the privacy and liberty of the woman.

2. Second trimester

Since abortions become more risky at this stage, the state's interest in regulating them is stronger.  Hence, it can regulate, provided the regulation is reasonably related to the health of the woman.  The state's interest in protecting potential human life is also stronger, since the potential human is closer to becoming an actual human person.  However, that interest is not yet sufficiently strong to allow the state to interfere in the woman's privacy and liberty.

3. Third trimester

The woman's interest in privacy and liberty are as strong as before.  However, once the fetus is viable, the Court believes that the State may choose to regulate, even prohibit, abortion, as long as the life and health of the mother are not threatened.

E. The decision of the Court  

• Laws prohibiting abortions except those intended to save the life of the mother without regard for the stage of pregnancy and other interests, violate the Due Process Clause of the 14th Amendment, and are therefore unconstitutional.
• First trimester: no regulation is allowed during this period of time.  The decision is left to the woman and a qualified physician.  However, the state may regulate the medical practice of abortion.
• Second trimester: the State may regulate abortion in ways reasonably related to the health of the woman.
• Third trimester (from the point of viability): the State may regulate, even prohibit, abortion, consistently with its interest in the potentiality of human life, except where necessary in appropriate medical judgment for preservation of the life or health of the woman.

NOTES:

1. There is a potential conflict between the third trimester and the viability requirements, since technology pushes the moment of viability earlier and earlier.
2. In a related decision, the Court made clear that by "health" it meant both physical and psychological health.  

The decision was 7-2, with justices White and Rehnquist writing an emphatic dissenting opinion.

F. Further major developments

Webster v. Reproductive Health Services (1989)

Missouri placed restrictions on abortion by:

· Banning the use of public funds for abortion and abortion counseling unless the life of the woman was in danger

· Banning abortions in public hospitals and clinics, unless the life of the woman was in danger

· Forbidding public employees to assist in the performance of abortion, unless the life of the woman was in danger.

In a 5-4 decision, the Supreme Court did not overturn the law; however, it reaffirmed that provision limiting abortion in the second trimester are unconstitutional.

Planned Parenthood v. Casey (1992)

The Pennsylvania legislature amended its abortion control law in 1988 and 1989. Among the new provisions, the law required:

· Informed consent and a 24 hour waiting period prior to the procedure.

· The demand that a minor seeking an abortion required the consent of one parent (the law allows for a judicial bypass procedure).

· The demand that a married woman seeking an abortion had to indicate that she notified her husband of her intention to abort the fetus.

In 5-to-4 decision, the Court reaffirmed Roe, but it upheld most of the Pennsylvania provisions by imposing a new standard, namely, whether a state abortion regulation has the purpose or effect of imposing an "undue burden," which is defined as a "substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." Under this standard, the only provision to fail the undue-burden test was the husband notification requirement.

Gonzales v. Carhart (2007)

In 2003, the Federal Government passed the Partial-Abortion Act Ban, which prohibits a specific abortion procedure (intact dilation and evacuation) in which the fetus is pulled out feet first and then killed by crushing the skull to remove it.  Proponents argued that it’s a rare procedure amounting to killing a baby; opponents argued that the ban also prohibits a common procedure, dilation and curettage, and that it’s sometimes necessary to protect the life and health of the woman.

In a 5-4 decision, the Court determined that the ban is constitutional because consistent with Roe and Planned Parenthood.

Ultrasound Laws

In recent years, in the USA about 20 states have adopted, or are considering adopting, laws that require a woman seeking abortion to undergo ultrasound procedures to give her the opportunity to observe the fetus and hear its heartbeat. (As an example of such laws, here is the ultrasound law in the state of Texas).

In Texas, the woman may decline the viewing and hearing but not the exam. Apart from particular cases such as rape or certified severe malformation of the fetus, she is required to listen to an explanation of the status of the fetus. Usually, in early pregnancy (before 9-10 weeks), the ultrasound examination is carried out by inserting an 11 inch wand made of hard plastic in the vagina of the woman, what’s medically called a transvaginal sonogram. 80% of abortions are carried out before the 10^th week, which means that most women seeking an abortion will have to undergo this invasive procedure. No matter what the outcome, the woman has still a legal right to have an abortion; in other words, the examination is legally irrelevant to the right of the woman to have an abortion.

Notes:

· Such laws amount to the following: if you are a woman trying to exercise you legal right to have an abortion before 10 weeks, a right the Supreme Court has claimed to be rooted in the Constitution and which no State has any right to prohibit, you may be required to be vaginally penetrated whether your doctor believes this is medically necessary or not.

· Here’s the definition of rape according the World Health Organization: “physically forced or otherwise coerced penetration – even if slight – of the vulva or anus, using a penis, other body parts or an object.” (The definition is at p. 149 of this document, which also explains that threats about losing one’s job or getting a job count as coercion).

· Presumably, a woman who does not want to undergo a transvaginal sonogram will postpone abortion to about 12-13 weeks, by which time the ultrasound examination is typically carried out without the need of penetration of any body cavity.

Thought Question: how does the law sit with the idea that the later the abortion the more wrong it is?

Thought Question: Is the threat to prevent you from exercising a legal right unless…, amount to coercion? Note that a woman has no legal right to a job but the has a constitutionally based right to have an abortion. If so, does transvaginal sonogram in the law amount to state mandated rape? Is Texas a rape state? If so, what does this say about this country, its claims about freedom, and the status of women?