Earlier this month, the Cornell Law School Federalist Society sponsored a debate about abortion between my friend and colleague, Professor Deborah Dinner, and Samuel Green, the President and General Counsel of Reason for Life, an organization that is helping people recognize “the evil of abortion” and asking people to support this mission in the following ways: donating money; praying “that the Lord guides and blesses our work”; and introducing the organization “to your church or Christian school/college.” Mr. Green defended the Mississippi abortion statute currently before the Supreme Court this term in Dobbs v. Jackson Women’s Health Organization. The debate was fascinating. In this column, I will focus on some of the things that Mr. Green said because they represent consensus views within the pro-life movement and thus reveal how he and other pro-life advocates understand pregnancy.
Science Tells Us that a Zygote is a Person?
During his presentation, Mr. Green said that the science is in, and a fertilized egg is a person. He explained that a zygote is human, it is alive, and it is distinct from the mother and thus not part of her body. No one could disagree with the premise: a fertilized egg is human, alive, and distinct. But does that make it a person, such that we ought to force an uncontroversial other person to endure pregnancy, labor, and delivery for that distinct human cell?
To challenge the relationship between the uncontroversial premise and the very controversial conclusion, Professor Dinner suggested that a cheek cell is also human and alive, though it is not genetically distinct from the “mother” of the cheek cell. If two partners were kissing, we would then likely have genetically distinct cheek cells of person A in person B’s mouth. Yet no one would claim A and B are committing a multiple homicide if they use mouthwash after kissing. Similarly, getting a tooth extracted, though painful to the “mother” of the tooth, does not constitute murder. So what makes a fertilized egg so different?
If you take a cheek cell and put it somewhere, it won’t grow into a human being, Mr. Green told us, thus distinguishing it from a zygote. His statement struck me as interesting for a couple of reasons. First, his position—and that of the pro-life movement more generally—is that a zygote is itself a person and accordingly need not fulfill its potential in any way to become a person. Note, however, that when asked to explain what makes a zygote (as opposed to a cheek cell) a person, Mr. Green invoked the fact that a zygote will grow into a human being. So which is it? Is the zygote sacred because it is already a human being (a question-begging claim, to be sure), or is it sacred because it will later grow into a human being? And if what makes it valuable is what it will become in the future, then why can’t a person remove it from her body now, before it becomes a human being, thus negating the future that makes it special now?
Contrast Mr. Green’s argument for the personhood of the zygote with his argument for the personhood of human beings at other stages of life. For those stages, he said a toddler is a person even though he will later become a teenager and later still an adult. Each stage of life is morally equal to every other stage. I agree with Mr. Green about that claim. But if people asked us why a teenager counts as a person, we would not say because the teenager will one day be an adult. If people asked us why a toddler counts as a person, no one would say because the toddler will be a teenager someday.
Even if the teenager in question were to die before reaching adulthood, moreover, we would still—and maybe even especially—value her life as equal in moral weight to that of any adult (or toddler). In the case of a zygote, however, it is necessary to invoke the future because a single cell (and even a mass of undifferentiated cells) just does not intuitively trigger the feeling that we are in the presence of a person. For similar reasons, if we come across a pool of sperm cells on the street, we do not weep and lament the tragic loss of life. Sperm cells are potential life but not persons, egg cells are potential life but not persons, and inserting sperm cells into egg cells does not magically change the moral calculus. The three kinds of cells all hold the potentiality of human life, but none should be mistaken for a human being. For similar reasons, if my friend told me he loved having a dog, and I said “Can you show me a picture of the dog?” I would be very confused if he then showed me a picture of a canine zygote or blastocyst.
Yet Mr. Green believes that human zygotes are human beings. Why? Maybe it is because he takes a religious approach to the definition of a person. In particular, he takes a Christian approach. I say this because I was once a religious Jew, and Jews do not regard a zygote as a moral person equal to its mother. Indeed, under Jewish law, a person equal to other persons does not exist until the head of the fetus has begun to emerge from the birth canal.
Anyone who truly believes that a clump of reproductive cells is an equal of a newborn baby would find the following hypothetical case a difficult dilemma. You are driving a car and find suddenly that the brakes do not work. You can turn the steering wheel and direct your car into a house where you know 10 frozen embryos live inside a freezer unit, preserved for infertile couples. Alternatively, you can take your hands off the steering wheel, and that will result in your car driving into a house where you know a family of ten (born) human beings live. Does this scenario pose an impossible dilemma? I suspect almost no one would think it does. The frozen embryos are little more than reproductive material that people could use to create a child where there was none before. The ten humans in the house are entitled to live, and anyone with a functioning conscience would veer away from their home, even if it meant destroying the embryos.
Putting a Zygote Somewhere
Recall that in distinguishing a cheek cell from a zygote, Mr. Green, relying on the potential of the latter to become a human being, said that if you put a cheek cell somewhere, it would not grow into a human. This framing of what pregnancy is all about struck me as rather inaccurate. It implies that you just put a zygote into a woman, and voila! It grows into a baby. Given that Mr. Green does not say anywhere that his ideal abortion prohibition would have a rape exception, it is appropriate, I suppose, for him to think of fertilization as putting a zygote into a woman, as a rapist might effectively do. But whether or not it results from rape, the pregnancy process is far more involved than just putting a zygote into a woman and watching it grow like a Ficus plant.
The zygote, in addition to eventually becoming the cell amalgamation that could later grow into a baby, also gives rise to a placenta. That is why the placenta has genetic material from the father as well as from the mother. Placentas are what take from the person who is pregnant and give to the growing fetus.
If the fetus needs calcium, the placenta draws calcium from the mother, and the same is true for protein, fat, and carbohydrates, as well as the other nutrients and oxygen the fetus might require, all via the umbilical cord. If we who love and want the children we create did not feel a sentimental attachment to the process of creating them, we would recognize the physiological relationship between mother and fetus for what it is: parasite versus host.
Our genes “want” us to survive and reproduce. Most of the time, there is no conflict between the conditions for survival and for reproduction. However, when we are pregnant, things happen to us that are not in our own best interests. In addition to our nausea and vomiting (which can last all day and beyond the beginning of pregnancy), gestation changes our immune systems to protect the growing fetus from immunological rejection (because it is foreign tissue). The changes can increase our susceptibility to various infections.
Progesterone increases our body temperature, often to uncomfortable levels. Some skeletal changes can produce back pain and sciatica, and our blood volume can increase as much as 100%. A foreign organism takes root in our bodies, and its soldier guard, the placenta, takes over much of our systems to divert resources to the organism and away from us. When we choose to make a baby, all the sacrifice may be worth it (particularly if we do not get preeclampsia or gestational diabetes). When we would choose not to make a baby, however, Mr. Green’s dream of a legal system that classifies the fertilized egg as a person with the right to occupy and redirect the functions of another person’s body and body systems for nine months and then tear its way out of that body looks a lot like a Thirteenth Amendment violation.
When the “somewhere” that you put an embryo is into a woman’s body, that woman ought to have something to say about it. But maybe the problem is simply that Mr. Green knows little about the reality of pregnancy and imagines it is just a little person who happens to be spending time inside a bigger person. He analogized pregnancy to taking care of a physically separate child and said that you may not put your child out in the snow because childcare is difficult. But childcare is different because it is a task that a mother can share with a father or another mother or surrender it altogether in adoption (as Mr. Green likes to remind those who favor abortion rights), while pregnancy for the moment is nondelegable once it has taken hold. That fact, not to mention the physiological burdens of pregnancy, do not seem to trouble Mr. Green.
It would be nice if we could trust our Supreme Court Justices to reject this simplistic and misogynistic view of pregnancy, a view in which pregnancy is simultaneously invisible (since there’s already a baby right at the beginning) and mandatory. Sadly, Mr. Green and his ilk appear to be winning the war on women. Blessed Be the Fruit.
