Believing that the U. S. Supreme Court’s 1973 Roe v. Wadeabortion decision is hanging by a thread, states are positioning themselves to fill the legal void that would result if the Court overruled Roe. In place of a nationally recognized right to an abortion up until fetal viability, the question whether there are to be abortion rights at all would be returned to the states. Some, like New York, are moving to enlarge abortion rights in that event. Others, like South Carolina, are poised to limit them sharply.
A favored device in some anti-abortion states is to declare, as a matter of law, that a fetus, from the moment of conception, is a person entitled to the same rights of due process and equal protection that all other persons enjoy. Because a fetus, being a person, has a right to life like all other persons, some states taking this approach believe that a fetus’s right to life bars all abortions, because, as the author of a South Carolina anti-abortion bill said, abortion is the “shedding of innocent blood.” Other states would permit abortions only to save the mother’s life. So confident is the author of another South Carolina bill that he’s got all this right that the bill makes performing or undergoing an abortion where the mother’s life isn’t at risk a felony.
If the issue of abortion is on the verge of being taken out of the courts and returned to the voters’ legislative representatives, it’s worth asking what guidance our considered moral intuitions can give us about the legal protections fetal persons should have.
In 1971, two years before Roe v. Wade, Judith Jarvis Thomson of the Massachusetts Institute of Technology published a searching examination of the assumption animating the personhood movement. She accepted the premise that the fetus is a person and teased out its implications, some of which are especially relevant now.
Some, though not all, personhood advocates believe, like the South Carolina legislators, that abortions to save the life of the mother are morally permissible and should be legal. But in all other cases, including pregnancy resulting from rape, abortions should be barred, the personhood proponents believe, as a violation of the fetus’s right to life. As former Congressman Paul Ryan, R-Wis., famously put it, the “method of conception” doesn’t compromise the fetus’s right to life.
Why is a woman whose life is at risk entitled to an abortion but a fourteen-year-old pregnant as a result of rape by her father isn’t?
Taking the at-risk mother first, our intuition that abortion to save her life is morally permissible is based on her right of self-defense. Having the same self-defense right as the rest of us, she’s not morally required to wait passively for a toxic pregnancy to kill her. And health care professionals are morally permitted to support her in the exercise of her self-defense right.
So far, so good. But if the fetus is a person with the same right to life as everybody else, then it has the same right of self-defense as the mother. And if third parties may intervene in support of the mother’s exercise of her self-defense right, they may do so for the fetus.
If that’s the whole story, then we’re at moral stalemate. If only the mother or the fetus but not both can survive, it’s not at all obvious which one the law should protect. Legislating personhood for the fetus doesn’t automatically tip the scales in favor of the unborn.
We might think that it’s the innocence of the fetus that gives it a stronger claim to survival than the mother. But that can’t be right either and taking a closer look at our self-defense right shows why. If we grant that people have a right of self-defense, then the right to life obviously can’t be the right not to be killed no matter what. It can only be the right not to be killed unjustly, that is, in violation of your rights. So if you’re trying to kill me and the only way I can save my life is to kill you first, I don’t violate any right of yours if I succeed. I’m just exercising my self-defense right.
But that’s true even of innocent threats. Had Jared Loughner been so deranged that he thought he was brandishing a cucumber when, at a political event in 2011, he shot then-Congresswoman Gabrielle Giffords, D-Ariz., surely we wouldn’t think he’d been killed unjustly if dispatched by police at the scene, even though he wasn’t responsible for what he was doing.
Now if the right to life is the right not to be killed unjustly, that explains why the mother’s self-defense right takes precedence over the fetus’s self-defense right in the case of a toxic, life-threatening pregnancy. The right of self-defense extends to defending ourselves even against people who’re innocent threats. If the only way we can save our lives is to take theirs, doing that doesn’t violate of any of their rights.
So the states that are prepared to allow abortions to save the mother’s life seem to be on firmer ground than those looking to ban all abortions. That more rigorous position doesn’t seem to square with our moral intuitions about these things.
But what about pregnancy resulting from rape? If as ex-Congressman Ryan observed, the “method of conception” doesn’t impair the fetus’s right to life, why should a fourteen-year-old pregnant rape victim have a legal right to an abortion? If her pregnancy doesn’t threaten her life, she can’t invoke her self-defense right to justify an abortion.
It’s tempting to think that what’s controlling here is the principle that the right to life is a right to everything needed to sustain life. If that’s a sound principle, then pregnant fourteen-year-old rape victims are out of luck.
Think about this, though. Suppose you come home from a trip to the grocery store and find slumped over your kitchen table a bedraggled person in obvious distress. He feebly waves a piece of paper at you and when you read it you learn to your horror that a FEMA operative has hacked your internet-enabled front door lock, and deposited this poor wretch, a Hurricane Michael victim, in your kitchen. The document goes on to say that your “guest” is in such a fragile state that his only chance of survival is room, board and medical care provided by you for the next nine months. But that’s not all, if you so much as let this person out of your sight, except when you’re both asleep, he’s done for. So if you sign on for this rescue, you and your charge will be joined at the hip, figurately if not literally, for the next nine months.
What are we to say about this? Following Thomson’s line of thought about a similar example, it would be spectacularly kind of you to take this guy on. Maybe it would even be callous of you to refuse. But your refusal would violate no right of his even if it ensures his death. After all, he has no right to be where he is, at your kitchen table close to breathing his last. Certainly he has a claim on your charity, but charity isn’t something that anybody is due as a right. He has no right to nine months room, board and all the rest unless you’ve agreed to it.
What this thought experiment suggests is that even if a fetus has a right to life, it doesn’t have a right to everything it needs to sustain life. And in the case of rape, it doesn’t have a right to the use of the mother’s body and blood supply. That isn’t a right she’s given it. It might be callous of her to refuse to carry it to term. But she violates no right of the fetus if she refuses, even if that ensures its death.
So if abortions to save the life of the mother or to spare pregnant rape victims aren’t ruled out by the fetus’s right to life as a person, just declaring that the unborn have a right to life from the moment of conception doesn’t seem to afford the burst of moral and legal clarity that advocates of these measures think it does. If a fetus is a person, then somewhere between life-saving abortions and vacation-saving abortions, there’s a moral line we shouldn’t cross. But legislative bodies may not be the best venues for figuring out where the line is.