The right of abortion is one of the most contentious political and legal issues in the United States today. It is being discussed a great deal today because of recent legislation in Texas (analyzed here) and because of the upcoming Supreme Court docket in which a major case from Mississippi will be heard in December. In this essay we do not even pretend to offer solutions to this conflict. Instead, we frame questions that we suspect the proponents of each side of the debate might find hard to adequately answer—questions that at the very least may require serious thought about the assumptions on which some arguments about abortion are based.
We note several caveats and framing considerations up front.
We do not raise questions that directly address the theological grounds for opposing or supporting the right to have an abortion, although our discussion may have ramifications for those beliefs.
Although we are both constitutional scholars, in this essay we do not purport to engage in a thorough constitutional analysis that carefully evaluates constitutional text, history, structure, judicial precedent and the like; our purpose and audience here indicate a different approach.
Many of our questions are framed in hypothetical terms. We know that the facts in some of these questions as we describe them are unlikely to occur in the real world, but (in keeping with the traditions of law professors, which we are) we think these questions have value in focusing analysis on particular issues and helping people refine their own intuitions and positions.
Abortion is a very emotional issue for many people. It is for us too. This essay, however, seeks to be dispassionate and thus may seem dryly mechanical in its language. We do not intend to disparage in any way the emotional experiences of people on any side of the abortion debate. However, we think the questions we raise have value for discussion even though they are posed in abstract and somewhat logical terms.
We are trying to focus on the core existential issues raised by the debate about abortion. To do that, we are assuming that externalities surrounding unwanted pregnancies or difficult family situations that can be mitigated by social intervention will in fact be mitigated. For example, for our purpose today we assume that society is willing to step up to the plate and take responsibility for providing for the adoption of unwanted children, for high-quality foster care for children whose material needs far exceed what their parents can provide for them, and/or for adequate subsidies for food, medical care, education, shelter and child care for the children of indigent families. We know, of course, that this is not the case in today’s world.
We are both men who have never been and will never be pregnant. We nonetheless hope that we have something helpful to offer on these matters.
Some proponents or opponents of abortion rights ground their arguments on one or the other of two discontinuous events. By this we mean that for many abortion opponents, conception is the critical event. Until conception occurs, conduct preventing pregnancy is permissible contraception. But once conception occurs, terminating a pregnancy is abortion and can be prohibited. For many proponents of abortion rights, birth is the most (though perhaps not only) relevant discontinuous event. Terminating a pregnancy during the gestation period is a permissible exercise of the right of reproductive autonomy, but after a baby is delivered, that right no longer applies. We make use, in our hypotheticals, of these triggering events to probe attitudes about their absolute centrality.
Questions For Pro-Life Advocates About the Equivalence of a Fertilized Egg and a Delivered Baby
We begin with questions about the centrality of conception. The core argument here by opponents of abortion is that after conception the fertilized egg—the conceptus, or fetus—is a baby. For moral and rights purposes, fetuses are equivalent to delivered babies and deserve to receive the same protection against harm that the state would provide to babies after they are born. The interests of the pregnant person do not outweigh these interests after conception any more than they would outweigh a baby’s interests and rights after birth. We recognize that even if one moves away from this contention of equivalence, one still might believe that conception is important in that it creates a fetus which has immediate and increasing moral value. The issue we explore is simply whether the immediate result of conception is the equivalent of a delivered baby.
We offer two questions regarding this axiom of equivalence.
- Assume the following: There is poisonous smoke in a neo-natal unit of a hospital. In the unit, there is a two-week-old baby in a kind of incubator machine on which the baby is dependent. If the baby is removed from the machine, or the machine stops functioning, the baby will die. The baby cannot survive continued exposure to the smoke (although the baby’s death would be painless), but the machine and baby can be carried out of the room safely. Also, in the unit is a machine in which a fertilized egg is stored. The fertilized egg is similarly dependent on the machine. If it is removed from the machine, the egg cannot survive. The egg also cannot survive continued exposure to the smoke, but the machine can be carried out of the room safely. X enters the room. She cannot carry out both machines. She can save only the two-week-old baby or the fertilized egg.
Is the decision X must make the equivalent of the terrible choice she would confront if there were two babies in the kind of incubator machines we describe? (We assume that in the case of delivered babies the fact that one baby may be months older than the other would be morally irrelevant.) Is saving the fertilized egg or the newborn baby a terrible, but morally equivalent decision? Or is there a difference between the two that justifies the decision to protect one more than the other?
- Assume that someone is one month into a pregnancy and receives the tragic information that the fetus being carried has a terminal illness. The fetus may survive in the womb for another three months, but there is no chance for survival beyond that time. May an abortion be performed in this circumstance? We assume that in the case of delivered babies or infants, the fact that a baby had a terminal illness would not justify medical intervention to end the baby’s life. Does the fact that the fetus in our hypothetical will never have the opportunity to live outside the womb change the analysis or does the equivalence of fetus and newborn require an equivalent prohibition against medical intervention?
Another question for abortion opponents relates to the hypothetical impact of an abortion ban on the decisions of people to conceive and bring delivered babies into existence. Assume 100 people who want to become pregnant are informed that because of their age or heredity there is a 2% chance that their babies would be born with very serious birth defects. The birth defects could be detected very early in the gestation period. Each of these people would choose to go forward with a planned pregnancy if an abortion were legally available once it is known that the baby would suffer from these serious birth defects. They would all decide not to become pregnant if abortion were unavailable. Thus, for this cohort of people, 98-100 babies who would have been born will never come into existence if all abortion is prohibited. Does this consequence have any relevance to whether these women should have the ability to obtain an abortion?
Questions For Pro-Choice Advocates About, Among Other Things, the Contention That Abortion Rights Continue Until Birth
Third-trimester abortions are rare and controversial. They virtually always involve some change in, or some new information about, the condition of the fetus or the pregnant person. Assume it is determined that the fetus has very serious birth defects a few weeks prior to the due date of delivery, or that the fetus becomes seriously ill with a marginally treatable, but not curable, illness at this time. Some advocates of abortion rights contend that the pregnant person retains the right to have an abortion in these circumstances until the delivery of the baby. They argue that in these tragic circumstances, the extraordinarily difficult decision whether to terminate the pregnancy belongs to the individual, not to the state.
One question regarding this position is this: Assume that during the delivery of a baby, unforeseen complications result in the baby being born with very serious disabilities or medical problems that are the equivalent of the birth defects or illness described in the previous paragraph. The only difference is that these medical conditions come into existence or are identified just as the baby is delivered. Are the circumstances here equally tragic as previously described? If they are, does the tragic nature of these circumstances support giving the pregnant person the right to end the baby’s life immediately after birth? If not, (and we think not) why should the tragic nature of these circumstances justify pre-birth abortion but not the post-birth termination?
A related set of questions is addressed to those who concede that abortion rights do not extend to birth, but that there should be a right to a pre-viability abortion. What, precisely, makes viability—the ability to live outside the womb—a controllingly relevant factor? The fact that a fetus is theoretically capable of surviving if it is removed from the pregnant person’s body does not alter the reality that the fetus exists within that body and removing a fetus at the point in time of viability would involve massively intrusive intervention into autonomy and bodily integrity. Moreover, if we are focusing our attention on the development of the fetus in determining either fetal rights or the interests of the state in the continued survival of the fetus, does viability correlate with fetal characteristics which are associated with personhood or a right to life? Respiratory problems, for example, may render a fetus non-viable until late in the gestation period. If a late-term fetus is fully developed a week or two from delivery, is it less of a person (or does the state have less of an interest in a baby being born alive) because at that late stage of the gestation period, the fetus would suffer respiratory failure if birth occurred at that time?
These questions raise another issue. If viability is not a controlling factor in determining the scope of the right to have an abortion, what does set the parameters of the scope of this right? The constitutional case law, Roe v. Wade and Planned Parenthood v. Casey, both focus on the developmental status of the fetus; as fetal development progresses, the state’s interest in the life of the fetus becomes increasingly compelling and capable of overriding the individual’s decision. Interestingly, both Roe and Casey seem to suggest that aside from the medical risks of having an abortion, the pregnant person’s interest remains static and unchanging throughout the gestation period. Yet does that seem correct? To answer this question, it is necessary to describe the component interests that taken together justify a person’s right to have an abortion in the first place, something the Court has never done with precision. What exactly might those interests be?
We suggest three interests. (Although we do not contend that this is an exclusive list, it is necessary to identify at least some of these interests in order to continue with the questions we are addressing.)
One interest is bodily integrity and autonomy. We do not think this requires additional explanation. Another interest involves the psychological and emotional condition and independence of the pregnant person. Here, that person’s interest involves avoiding the psychological and emotional consequences of giving birth and then placing a baby up for adoption or in foster care. It also involves avoiding the psychological bonding that develops between the pregnant person and the fetus being carried. A third interest is the recognition that access to abortion protects the pregnant person’s interest in sexual autonomy free from the fear of an unwanted pregnancy.
Based on these interests, our question is whether these interests, rather than being stable and unchanging, may decline throughout the gestation period. With regard to the interest in bodily integrity and autonomy, the issue here would be whether there is a meaningfully greater degree of interference with bodily integrity if we compare childbirth to a very early abortion than would be the case if we compare a very late-term abortion to delivering a child. Can one argue that the later the abortion, the less this choice protects the pregnant person from significant physical burdens?
If we focus on psychological well-being and independence, can one argue that as the gestation period progresses the bond between the pregnant person and fetus becomes increasingly powerful? Late in the pregnancy, any decision that sunders this bond before or after birth will have difficult psychological consequences. If a pregnancy is terminated early after conception, before those bonds have developed to a significant extent, the psychological consequences are arguably substantially less severe. Accordingly, can one ask whether the pregnant person’s interest in avoiding these psychological effects declines as the gestation period progresses?
One might also ask whether the pregnant person’s interest in sexual autonomy free from the risk of an unwanted pregnancy and birth becomes less salient if the decision to have an abortion is not available later in the gestation period. If someone knows, for example, that abortion is available up to five months after conception, would the availability of abortion later in the pregnancy contribute in any significant way to the pregnant person’s interest in sexual autonomy?
If this analysis has some merit, does this suggest that in discussing the parameters of the scope of the right to have an abortion, courts should be looking at both the developmental changes in the fetus (which support an increased interest in continued life over time) and the declining interests in having an abortion of the pregnant person as the pregnancy progresses? Should courts be considering the intersection of these two changing interests of the fetus and the pregnant person, rather than just the former?
Our final question focuses on the issue of personhood. Under the Court’s analysis, a fetus does not become a person for constitutional purposes until a baby is born alive. What this means, if we understand the Court’s analysis correctly, is that the pregnant person has constitutional rights regarding the pregnancy and the state has an interest in the developing life, but the fetus has no rights bearing identity. Thus, the interests of the fetus are entirely dependent on the decisions of the pregnant person and the state.
Our thought experiment here assumes that a state wants to reduce the amount of money it spends on providing resources to the children of indigent families. Accordingly, it offers poor pregnant people a subsidy, say $10,000, if they elect to have an abortion. The state doesn’t care whether the abortion occurs early or late in pregnancy. It will save money by paying for an abortion rather than subsidizing the food, medical care, shelter and education of additional indigent children. Should this scheme be constitutional? Is there a way to challenge its constitutionality without recognizing the personhood of the fetus at least at some point during the gestation period?
In setting out the questions in this essay, we do not pre-judge any answers that might be offered. Instead, we simply (and deeply) believe there is value in considering and discussing some of the core issues about abortion rights as part of a civil dialogue about abortion—in a debate where true dialogue is rare.