A Right to Abort a Full-Term “Fetus”?

Posted in: Reproductive Law

I have been pro-choice virtually from the moment that I learned what people meant when they said “pro-life.” I accordingly feel a bit awkward opposing pro-choice positions and corresponding arguments. Yet I cannot do otherwise in the face of the abortion bill that Delegate Kathy Tran recently sponsored in Virginia. One component of the bill rests on a rationale for abortion rights that people should categorically reject.


People commonly make the following argument for a right to abortion: an embryo or fetus is not yet a baby and therefore has no right to life. Absent a competing right to live, the woman’s interest in ending her pregnancy prevails. The argument essentially amounts to a claim that women have the right not to create a baby by taking their pregnancy any further. The position makes the most sense early on, before an embryo or fetus develops the capacity to experience pain or discomfort and even before it looks very much like a baby. As the pregnancy progresses, the claim that the fetus is not a baby—and that an abortion amounts to the prevention of a baby—becomes increasingly implausible. Later in pregnancy, one needs another argument.

A second argument for abortion choice relies on the fact that pregnancy makes considerable and intimate demands of a woman’s body, demands that society should not be able to force a woman to meet. No one is entitled to use another’s body, even when such use could be life-saving. We do not force people to donate a kidney to someone who needs it, and likewise, the position holds, we should not require women to donate the insides of their bodies for nine months. This argument, which I have developed elsewhere, justifies an abortion right even if we posit that a fetus at some stage has already become a person.

I have also encountered a third argument that seems like a variation on the second one. It holds that one has the right to kill anything and anyone that is living in and located inside one’s body. This position seems reasonable when the thing located inside one’s body has no separate set of interests or corresponding entitlements. If a benign tumor lives in your small intestine, you should have the right to remove it, even though it will not survive the removal. But this right probably turns more on your entitlement to bodily integrity coupled with the “thing” status of a tumor than it does with the location of the tumor or your right to kill whatever and whoever happens to be inside your body. When the fetus is highly developed, the third argument accordingly becomes less compelling.

For the vast majority of abortions, it may not matter which of the arguments one invokes, because any of them will do. Most women who terminate their pregnancies do so during the first trimester and, of those who do, most terminate in the first couple of months. If a woman is killing an embryo that cannot register sensations or feel pleasure or discomfort or pain, then she may be dealing with a living creature that has yet to qualify as “someone” rather than “something.” In addition, the pregnancy makes significant demands on the woman’s body, demands that she can invoke as a basis for ending the pregnancy. And finally (and least convincingly)—the life of the embryo exists inside the woman’s body and, on the third argument, its location gives rise to a right in the woman to decide whether it lives or dies.

The Virginia Abortion Bill

The distinctions among the three arguments become important in the case of late-term abortions, including those that occur during the third and final trimester of pregnancy. In Virginia, the House of Delegates recently considered a bill that would have liberalized the abortion law of the state. Among other things, it would have allowed a third-trimester abortion to happen if one doctor certified that continuing the pregnancy would kill the woman or impair her mental or physical health (rather than “substantially and irremediably” impairing her health, as existing law requires). Consider for a moment what the proposed provision could do.

It could allow a doctor who is about to perform an abortion during the last three months of a woman’s pregnancy to determine that his patient—who could in theory be at full term (37 weeks or later)—would suffer harm to her physical or mental health from continuing the pregnancy. The bill would eliminate the provision specifying a degree of harm, so it could be a slight harm. In other words, a doctor could approve an abortion for a woman at 37 weeks, provided the doctor made a finding that the woman would, if she finished her pregnancy and gave birth, suffer anxiety over having to care for an unwanted child. Alternatively, the doctor might be able to approve an abortion by finding that the woman wants to avoid the pain and injury involved in normal labor, pain that would be greater if the doctor delivered the full-term infant whole than if an abortion provider instead dismembered it as part of an abortion.

Now consider how the different justifications for an abortion apply to the scenario above. The first justification expires at the point when the embryo or fetus have progressed to the “baby” stage, a stage at which a person who approached the child outside of the womb and smothered him or her with a plastic bag would incontrovertibly be guilty of murder. The interest in avoiding having a child is one that everyone (including men) ought to have before conception and that women ought to have until the point at which there already is a child whose location happens to be inside the mother’s womb. At 37 weeks, we have a child already, so it is simply too late to justify an abortion decision on the basis of an interest in avoiding the creation of a child.

The second justification requires a kind of balancing of interests. Do women have an interest in avoiding the injuries commonly associated with labor and delivery? Yes, of course they do. But by the time one has a baby at term (indeed, even earlier than that), the baby’s interest in avoiding pain and death may outweigh the woman’s interest in avoiding ordinary birth injuries. Another way to look at the question is to observe that the woman has had a long time to “prevent” the child (for example, by having an earlier abortion) and has accordingly forfeited assertion of the interest by the end of the third trimester.

Some Responses

If I were defending the Virginia bill against the foregoing challenges, I would note that women who have abortions, no matter when in pregnancy, are generally acting to avoid having the child. That is, even when women invoke the bodily integrity interest, they are generally doing so instrumentally. The reason they want an abortion is primarily or exclusively because they do not want a child right now or with the particular man or for some other reason, not because they wish to escape the physical condition of pregnancy. To put the matter more crassly, they have an abortion because they want to kill the embryo or fetus and thereby avoid that embryo or fetus becoming the baby that they do not want.

Why would this response be helpful to defenders of the Virginia law? Because it means that we can ignore the real reasons that women have for terminating their pregnancies and rely instead on the legitimate interests that they have in an abortion, whether or not those interests are in fact motivating their choice. Perhaps a woman wants to terminate because she hates full-term babies. What matters is that she has a bodily integrity interest in avoiding the substantial internal burdens of pregnancy. She can invoke this interest even if her actual desire arises from a different source.

There is nothing special, moreover, about invoking a protected interest in one thing when the decision to act rests on a completely different (and unprotected) thing. Think about equal protection doctrine. Current constitutional law holds that the government generally may not distinguish between individuals on the basis of race. Some people might bring an equal protection lawsuit against a public university for preferentially selecting white applicants over minority applicants. Others might bring a lawsuit charging that their school engages in affirmative action, employing quotas to increase the number of minority applicants. In both cases, individuals invoke the right to equal treatment under law, even though one might be motivated by opposition to conventional race discrimination while the other might be motivated by the desire to perpetuate longstanding preferential access. Or both might be equally motivated by the desire to get into the school and could not care less about equality; their true motives do not bear on the strength of their respective cases.

The same is true for a woman seeking an abortion; her motive may be the desire to get rid of an unwanted child (the same motive that her boyfriend might have for desperately wanting her to have the abortion). But her bodily integrity interest, an interest that she alone has with respect to this pregnancy, still grounds her right to abort, whether she cares about her bodily integrity or not.

A Reply

If I were to hear this argument, I would say the following in reply: It is true that we get to exercise our rights for reasons that may have nothing to do with the basis for our having those rights. If your bodily integrity interest is sufficient to justify an abortion, then you can have the abortion for any reason, including a ridiculous or invidious reason. In the case of a full-term abortion, however, it seems plausible to say that there is no sufficient justification for an abortion, so long as the pregnancy does not seriously threaten the woman’s life or health.

If the woman no longer wants to remain pregnant, she can induce labor or have a C-section and stop being pregnant in short order. We ordinarily understand the bodily integrity interest in this context as an interest in not being pregnant against one’s will. The woman at term can fulfill that interest without killing what is plainly and incontrovertibly a baby.

Although abortion does result in the death of a baby (and in most cases, that death is the purpose of the abortion), the right to abortion—especially a late abortion—does not rest on a right to secure the death of the fetus; it rests on the right not to be physically occupied against one’s will. Unlike in the case of earlier abortions or dueling equal protection claims, then, the abortion at term is neither motivated nor justified by a reason weighty enough to allow for the deliberate slaughter of a baby about to emerge from his or her mother’s body.

A Different Argument and a Reply to That Argument

Hearing the argument about forfeiting the right to abortion by 37 weeks, I might suggest that the estoppel argument leads to a kind of reductio ad absurdum that contradicts the abortion right itself. If a woman forfeits her interest in avoiding ordinary birth injury by 37 weeks, why doesn’t she forfeit it much earlier, in the second or even the first trimester? Indeed, one could say that the decision to have sex, knowing that a pregnancy might result, forfeits the interest in avoiding ordinary birth injuries and in escaping an unwanted pregnancy more generally. Insisting on the “inside the woman’s body”/“outside the woman’s body” distinction has the benefit of drawing a relatively clear line.

Replying to the reductio ad absurdum argument, I would say that while people could invoke the estoppel argument for much broader limits on abortion, that fact alone does not invalidate the argument. An estoppel argument becomes more compelling as the person against whom one makes it has had many more opportunities to withdraw from the situation at hand. A woman who is at term has had every opportunity to avoid the stage at which she finds herself. In fact, barring unusual circumstances, every day of the pregnancy was in theory a day on which she could have terminated and avoided her current status. It therefore seems that the estoppel argument is not a slippery slope but rather a compelling reason for denying a right to “abort” at term.

A Final Response

Writing in the New York Times, Michelle Goldberg offered yet another response to attack the Virginia law: that almost no woman would seek an “abortion” at the very end of pregnancy, and if she did, no doctor would be willing to perform it. The fact that the law might in theory allow such an abortion therefore does not matter. It would be like a loophole in the law against incest that allowed an adult male to have sex with his great grandfather. The odds that any person would ever want to take advantage of the loophole are so slim as to make the omission irrelevant.

I believe that unlike the other arguments to which I have replied above, Michelle Goldberg’s argument is barely an argument at all. Yes, we can all imagine laws that inadvertently fail to cover a situation that is very unlikely to arise. We need not rush to amend such laws, because no one is plotting to violate them. But the bill in this case is quite different. It aims to lift pre-existing restrictions on late-term abortion. The fact that a woman can now “abort” at term with the permission of her abortion provider in the presence of threats of unknown size to life or health is not an oversight but part of a deliberate decision to liberalize the practice. I would agree that very few women and very few doctors would seek to terminate at term. But why enable even a few desperate people to do so?


For a long time after the Supreme Court handed down Roe v. Wade, it seemed unnecessary for pro-choice Americans to settle on a specific rationale for their position. The law said that women had the right to abortion until the point of viability, with various refinements along the way. Academics discussed competing theories for protecting the right in question.

Now that some states, such as Virginia, are moving to permit all abortions—including those that women undertake at the end of pregnancy on the basis of threats of unspecified magnitude to life or health—it becomes critical to know exactly why one believes in the right to terminate an unwanted pregnancy. Knowing why will help us determine when as well. And it will also help us navigate the state of the law when, as many expect, the US Supreme Court gives states greater leeway to decide whether and how much to restrict abortion.

I have explained here that if one rests on the non-personhood of an embryo or fetus, then one necessarily opposes an abortion at 37 weeks. And if “inside my body=only my business” is one’s rationale, then anything goes, but the premise is unconvincing. If, on the other hand, as I have proposed, the best rationale for abortion rights has to do with a woman’s bodily integrity, then when she can remove the sentient fetus or baby from her body without killing it, she must do exactly that, so long as doing so will not substantially risk death or serious injury.

We cannot mechanically apply a pro-choice bumper sticker to the circumstances of a third-trimester abortion. We should not follow in the path of the pro-life activists who fail to distinguish between a ball of cells and a newborn baby. By drawing rather than resisting rational distinctions, pro-choice theorists and activists can demonstrate convincingly that they hold a principled and coherent position, one that others might see fit to adopt.

Posted in: Reproductive Law

Tags: Abortion, Virginia

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