Ayn Rand thought that abortion should be legal at least early in the term, when almost all abortions occur. Her views on late-term abortion changed somewhat, ending up firmly on the position that abortion always should be legal until birth. By contrast, I now think some legal restrictions on late-term abortions probably are justified. Here I explore this development in Rand’s thought and further discuss the implications. (I mentioned a few details about Rand’s views previously. See also my first and second articles in what has become a series.)
The Scope of Late-Term Abortions
Practically speaking, if you think that abortion always should be legal early in the term (as I do), then you think that it should be legal in almost all cases. Guttmacher says that, in 2016, about two-thirds of U.S. abortions took place in the first eight weeks, while only 1.3% of abortions took place after the twentieth week. The CDC updates the stats for 2019 and finds that fewer than one percent of abortions took place after the twentieth week. These stats are imprecise because not all areas “reported gestational age,” but they’re the best available. I guess to keep reporting simpler, the CDC groups abortions into seven time frames: under seven weeks of gestation, seven to nine weeks, etcetera, and over twenty weeks. So I don’t have the breakdown for the number of abortions that take place after, say, 24 weeks.
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The timeline is important. Fetuses do not have the capacity for consciousness (so they cannot feel pain) until well after the twentieth week (see a Wikipedia summary, 2009 and 2014 articles on the development of consciousness, and a 2005 article on fetal pain). I have argued that there is no justification for banning abortion prior to a fetus developing the capacity for consciousness. Until that point, legal protections of the fetus properly are strictly extensions of legal protections of adults tied to the fetus. For example, it should be a crime to harm a woman’s young fetus without her consent, because she has a right to control her own body and to seek to carry the fetus to term. Practically speaking (given today’s technology), there is no way for an early-term fetus to survive outside its mother’s body; the youngest premature baby to survive was born at 21 weeks.
Here we are talking about a tiny fraction of abortions, then. Among those abortions that take place after the fetus has developed the capacity for consciousness, many involve risks to the mother’s health or life or fetal abnormality. Nearly everyone agrees abortion should be legal at any stage at least in cases where continuing the pregnancy would kill the mother, severely damage her health, or impose a high risk of those harms.
But just because (by my reckoning) most abortions properly are counted as morally unproblematic because they take place before the fetus develops the capacity for consciousness or because the mother’s health is at stake, doesn’t mean we should ignore the small minority of remaining cases. If it is true, as many people believe, that abortion at least in some contexts is murder or akin to murder, or at least a serious moral offense, those residual cases are very important.
Reasons for Late-Term Abortions
Why women get late-term abortions is an empirical matter. If we looked at all known cases and found no instances of morally troublesome abortions (however defined), then that would be a reason to not legally restrict late-term abortions. (Something being morally troublesome is a necessary but not sufficient reason to ban it.) There’s no reason to outlaw something that no one does.
The Christian conservative David French is among those who think that at least some late-term abortions are morally troublesome. He writes:
The Guttmacher Institute has looked at the reasons for late-term abortion, and the reasons are chilling. First, the top-line finding is clear: “[D]ata suggest that most women seeking later terminations are not doing so for reasons of fetal anomaly or life endangerment.” Instead, there were “five general profiles of women who sought later abortions, describing 80% of the sample.” These women were “raising children alone, were depressed or using illicit substances, were in conflict with a male partner or experiencing domestic violence, had trouble deciding and then had access problems, or were young and nulliparous [had never given birth].”
I’m not sure why French calls this a Guttmacher report; it’s a 2013 paper by Diana Greene Foster and Katrina Kimport. It is based on interviews with “272 women who received an abortion at or after 20 weeks’ gestation . . . at 16 facilities across the country in 2008–2010.” Some cases are worth a review:
Overall, 43% of women reported that not realizing they were pregnant delayed them in seeking abortion care. . . . For example, a 22-year-old white woman from Illinois discovered she was 23 weeks pregnant and had her abortion the same week. She said, “I didn't know I was pregnant in the beginning.” . . .
Having recognized their pregnancy, 37% of women reported that the process of deciding whether to have an abortion slowed them down. For some, difficulty deciding resulted strictly from indecision about what to do and a desire not to rush into anything. A 30-year-old Latina woman from California, who had her abortion at 23 weeks’ gestation, talked about being slowed down because she was “deciding whether or not to do it. I had to make sure I was okay with myself.” . . .
One in five participants said that disagreement with the man involved in the pregnancy over their decision to have an abortion slowed them down. . . . A 26-year-old Latina woman in New Mexico, who had an abortion at 28 weeks’ gestation, said, “I was afraid of my boyfriend finding out, and I went [to the abortion clinic] once he was in jail.” . . .
[Regarding Angel, a 24-year-old white woman from Maryland:] At the time of her abortion, she had a 10-month-old daughter, whom she cared for full-time while she looked for paid employment. Her husband had recently been incarcerated, leaving her with no household income. . . . She believed that having another child would compromise the care she could give her infant daughter: “I knew I couldn't continue with [the pregnancy]. My daughter isn’t even a year.” . . . She had her abortion at 24 weeks. . . .
Read also the stories of “Rose,” who “used amphetamines and had episodes of binge drinking” and who decided to get an abortion at 20 weeks; “Lesley,” who got an abortion at 20 weeks after leaving her abusive husband; “Amber,” a poor mother of two who “initially equivocated” about whether to get an abortion but decided to get one at 20 weeks after struggling to arrange and finance the procedure; and “Lana,” a 15-year-old girl who “decided on abortion immediately” when she got pregnant but who did not get one until 23 weeks.
These cases reveal, first, that late-term abortions often do not involve risks to the lives or health of the mothers, and second, that they do often involve women otherwise in severe distress.
Many of these abortions took place before week 24, when I doubt fetuses have the capacity for consciousness. There is a grey area, obviously. There is no magic moment when consciousness “turns on”; rather, we’re talking about something more like turning up a dimmer switch over days or weeks. (We can say that a just-born child is more conscious or has a higher level of consciousness than an unborn fetus.)
It is worth discussing (elsewhere) what support systems might have given these women the help they needed to get out of an abusive relationship, get a safe and early abortion, or carry the child safely in order to put it up for adoption.
French is not convinced that the reasons given for late-term abortions always are adequate:
There are times when, no doubt, [late-term abortion is] the product of an anguished decision in the midst of a maternal or infant-health crisis, but that is not the norm. There are too many casual killings, there are too many cruel decisions, and even most Americans who support abortion rights recoil from the ugliness of the procedure. Women aren’t uniquely virtuous. They’re human beings, and any given collection of people will contain some number of bad actors. In the context of late-term abortion, restraining their worst impulses isn’t an act of contempt, it’s an act of mercy for a child otherwise condemned to die.
Plausibly, at least some of these cases involve the unjustified abortion of a fetus, because the fetus probably has the capacity for consciousness and because there is no serious threat to the woman in carrying the fetus to term. We can’t reasonably write off such concerns as ungrounded in reality or as involving cases too rare to matter.
Rand’s Evolving Views
Ben Bayer’s new short book (a collection of essays), Why the Right to Abortion is Sacrosanct, is published by the Ayn Rand Institute (ARI) and best-represents that organization’s position. He summarizes:
“My body, my choice” has long been the rallying cry for abortion rights. But a woman’s body and choice remain hers even when the fetus is viable. Indeed her life is at stake right up until the point of birth. . . . The only interest and the only rights at stake here are those of the woman. This makes the right to abortion an unqualified absolute.
Bayer first quotes Rand, “A child cannot acquire any rights until it is born.” This is from Rand’s 1968 lecture, “Of Living Death” (reprinted in The Voice of Reason). The line in question can be found at marker 41:31 of the audio recording also published by ARI via YouTube.
Yet Rand did not always strongly stick to this view that the bright line is birth. The Ayn Rand Lexicon starts with the line mentioned and then quotes another line:
A piece of protoplasm has no rights—and no life in the human sense of the term. One may argue about the later stages of a pregnancy, but the essential issue concerns only the first three months.
This line is from Rand’s November–December 1975 Ayn Rand Letter (vol. IV, no. 2). The context is that Rand is encouraging readers not to support the 1976 presidential ambitions of Ronald Reagan on the grounds that “he opposes the right to abortion.” Rand does not here advocate restrictions on late-term abortions, but she at least grants that one may reasonably debate the matter.
Next the Lexicon quotes from the printed publication of Rand’s 1981 talk, “The Age of Mediocrity.” But there is a discrepancy between the print version and the original. Here is the print version:
If any among you are confused or taken in by the argument that the cells of an embryo are living human cells, remember that so are all the cells of your body, including the cells of your skin, your tonsils, or your ruptured appendix—and that cutting them is murder, according to the notions of that proposed law. Remember also that a potentiality is not the equivalent of an actuality—and that a human being’s life begins at birth.
Here is what Rand says in the original talk (marker 9:24):
. . .Remember also that a potentiality is not the equivalent of an actuality, and that a fetus may be regarded as a human being only when it is capable of surviving outside of and independent of the mother’s body.
These seem like two very different statements. The first clearly implies that abortion always should be legal until birth; the second seems to imply that some restrictions after “viability” might be warranted. There is some ambiguity in the statement. In an important sense, a fetus is “capable of surviving outside of and independent of the mother’s body” only when it is, in fact, outside of and independent of the mother’s body, i.e. “born.” So Rand does not here unambiguously endorse restrictions on late-term abortions. But she does seem to at least leave open the door to the possibility.
Why is there a difference between the two versions? Bayer explains the history in the 60th endnote of his book:
Some readers may notice a discrepancy between this statement and her formulation in the original talk, where she says this instead: “Remember also that a potentiality is not the equivalent of an actuality, and that a fetus may be regarded as a human being only when it is capable of surviving outside of and independent of the mother’s body.” The editor of The Objectivist Forum, Harry Binswanger, recounts the story of how Rand made the change. . . .
This is the text that Bayer quotes:
I asked her, “Don’t you think that there is a right to abort in the eighth or ninth month of pregnancy?” because the way one sentence was worded, it sounded like there might not be a right to abort in the eighth or ninth month when the fetus could live outside the womb. She said, “It’s fully formed then,” which is true; it can live outside. I said, “Yes, but isn’t your point here that there’s a crucial difference between the potential and the actual? It hasn’t lived yet.” And she said, “Yes, but it would be wrong to kill it.” I argued, ‘Well, are you saying it’s morally wrong but within the woman’s rights?’ So we discussed these kind of issues for a minute or two. Then she reached for the pen and decisively and dramatically scratched out the previous phrase, and wrote, in one stroke, this unambiguous statement: “a human being’s life begins at birth.’” (Scott McConnell, 100 Voices: An Oral History of Ayn Rand (New York: New American Library, 2010), 597.)
Binswanger’s account implies that Rand held, or came very close to holding, a “viability” standard fairly late in her her life; she delivered the speech in question in 1981 and died the next year. But then Binswanger persuaded her to firmly return to the birth standard that she’d previously advocated. [July 11 Update: Binswanger has published the relevant page with Rand’s hand-written changes.]
Ayn Rand Answers contains some of Rand’s other comments on abortion (placed selectively in chronological order; note that I have not checked the printed text against the original audio recordings):
[In reply to the question, “When does a human organism become an individual? At conception, at birth, or at some other time?”] “At birth. . . . The fact of birth is an absolute—that is, up to that moment, the child is not an independent, living organism. It’s part of the body of its mother. But at birth, a child is an individual. . . . Until the moment of birth, the child is physically the property of the mother. It is debated that at some time before birth the child becomes conscious. I don’t know; this is for science to determine. But what is not debatable is this: a human embryo does not even have the beginnings of a nervous system until a number of months (around three, I believe) into the pregnancy. At that point, the embryo is perhaps potentially conscious. And beyond this time, abortion becomes dangerous to the mother. . . . but before that point, there is no rational, moral, or semi-humane argument that could be made in favor of forbidding abortion.” (1967) [July 11 Update: The Ayn Rand Institute released audio of this passage.]
“A human being is a living entity; life starts at birth. An embryo is a potential human being. You might argue that medically an embryo is alive at six to eight months. I don’t know. But no woman in her right mind would have an abortion that late; it’s very dangerous for her. So nature is consistent with the interests of both.” (1971)
“I’d like to express my indignation at the idea of confusing a living human being with an embryo, which is only some undeveloped cells. (Abortion at the last minute—when a baby is formed—is a different issue.) . . . An ‘unborn child,’ before it is formed, is not a human, it’s not a living entity, it has no rights. The woman has rights.” (1974)
“I am in favor of a woman’s perfect moral right to have [an abortion] if she so decides. I think it is an issue to be decided by a woman and her doctor. I am in agreement with the Supreme Court decision on this subject.” (1976)
“[President Ford] says he recognizes the right of states to pass laws on abortion; but he is wrong: the right to abortion is in fact a fundamental constitutional right.” (1976)
“I regard abortion as the most important issue, because the anti-abortionists have such evil motives. They have no interest in human beings, only in embryos; they want to tie down a family to animal reproduction.” (1980)
It is interesting to see how Rand struggled with the competing standards of consciousness, viability, and birth. She seems to have changed her views quite a lot (to a viability standard) late in life before reverting to her earlier views. This hardly is surprising; abortion is a difficult issue. And the categories overlap substantially; generally a fetus that is not conscious will not be viable (at least with today’s technology), and birth presupposes viability and entails consciousness. Rand consistently held that abortion properly is legal early in the term.
Interpreting Rand’s Views
Some people baselessly criticize Bayer’s work. For example, a fellow named Kyle Ratliff has out an article, “The Ayn Rand Institute’s Disgraceful Misrepresentation of Ayn Rand on Abortion.” But Bayer develops the most consistent reading of Rand’s position taking into account her latest published views on the matter. (Bayer also thinks that position is correct.) That it is possible to draw out some remarks by Rand to support different conclusions does not show that Bayer misrepresents Rand; it shows only that Rand’s views changed somewhat over time and were not fully internally consistent. Why is it surprising that, over a fourteen-year span, Rand vacillated on some details regarding abortion, a difficult issue deeply entangled with medical science?
Bayer replies to Ratliff:
It’s of course true that it would be morally wrong to end many if not most late term pregnancies. Rand repeatedly says it’s a more dangerous procedure and not in her interest. Most women wouldn’t want to do this. But while most late term pregnancies shouldn’t be aborted, most late term abortions that actually happen are when the life of the woman is in danger or the fetus is not viable. Kyle himself appears to agree that in these cases, the woman should have a right to abort, AND that it would morally righteous to choose. But that’s why this whole issue is a red herring. We’re agreed there should be a right to do it, we’re agreed that when it actually happens it’s usually right. So where’s the disagreement?
Based on the evidence that French cites, it seems that Bayer is factually wrong about why most late-term abortions occur. Regardless, Bayer concedes that a) some late-term abortions are immoral and b) some are not related to the health of the mother or the viability of the fetus.
When what’s at stake is the life of a developed fetus with the capacity for consciousness, “some” matters quite a lot. If, as some people claim, killing such a fetus without good cause is murder or akin to murder, and if that ever happens, then we need laws against it.
Offhand I cannot find any support for Bayer’s (and Rand’s) claim that a late-term abortion normally is more dangerous to the woman than giving birth. Generally abortion is safer than giving birth, but obviously late-term abortions are more dangerous relative to early-term ones. The risks of abortion need to be weighed against the risks of giving birth; the maternal mortality rate in the U.S. was 17.4 deaths per 100,000 live births in 2018.
The upshot is that late-term abortions may be less-risky than giving birth for many women, or at least not substantially more-risky, and many women do get late-term abortions for reasons other than to protect their own health or because the fetus is malformed.
No Right to Bodily Support
Here is the basic problem with the “viability” standard, meaning that abortion restrictions are justified if a fetus could survive outside the woman’s body: Hypothetical viability does not change that the fetus is, in fact, inside the woman’s body at the moment in question. That the fetus could survive if the woman gave birth, doesn’t change the fact that the fetus exists inside the body of the woman and lives by her bodily support.
There is no magical incantation that can easily and harmlessly extract a fetus from a woman’s womb. Giving birth is a big deal. (I say this having witnessed a C-section operation.) It imposes significant costs on the woman. Forcing a woman to provide bodily support to the fetus and then to give birth constitutes an extraordinary imposition. If you want to give the state that sort of power, you’d better have an overriding reason.
At least once a fetus has the capacity for consciousness, the fundamental issue is not whether it is viable but whether the state properly may force the pregnant woman to provide bodily support to the fetus. (Before a fetus is conscious, the argument for such force is extremely weak.)
In my earlier article, “On the Right to Get an Abortion,” I discussed Judith Jarvis Thomson’s “violinist” example, the court case of McFall v. Shimp, and David Boonin’s extended discussion of that case and its implications. The upshot is that, regardless of the developmental status of a fetus, the state does not have the right to force a woman to provide a fetus with her bodily support, any more than the state had a right to force David Shimp to donate his bone marrow to his cousin Robert McFall.
One objection to Boonin’s line of argument is that, in most cases, the woman did something to help put the fetus in need of bodily support. Namely, she consented to have sex. (Obviously this objection does not apply to cases of rape.) But, Boonin replies (in part), if a woman did something to put the fetus in need of bodily support, she did so by doing something to create the fetus in the first place. It’s rather strange to say the state may force a woman to provide a fetus with bodily support because the fetus owes its very existence (partly) to the woman. It would be one thing (debatable) for the state to force Shimp to donate his bone marrow because (counterfactually) Shimp put McFall in the position of needing a bone-marrow transfer; it would be quite another for the state to force Shimp to donate his bone marrow because he is responsible for creating McFall’s life or for preserving McFall’s life long enough for him to need a bone-marrow transfer.
Here is how Boonin states this objection (in Beyond Roe): “If you do a voluntary act that causes someone to need your assistance, then you’re responsible for providing them with that assistance.” Boonin points out that there is a (big!) difference between causing “the neediness of an already existing person” and causing “the existence of a needy person.” That a woman helped cause the existence of a fetus inside her body hardly implies that the state therefore has the right to force her to continue to bodily support the fetus. She has the right to terminate that support. Notably, this right is independent of the broader morality of such action (people are welcome to try to persuade people not to get abortions and to fund alternatives).
Paradoxically, though, Boonin’s strong arguments in favor of legal abortion helped convince me that some restrictions on late-term abortions probably are warranted. Agreed: A woman has a right to terminate her bodily support of a fetus inside her body. But what if she can terminate that support by giving birth about as safely and easily as by having an abortion? In that case, assuming the fetus has the capacity for consciousness (as is the case late in term) and is otherwise healthy, what can be the argument for getting the abortion over giving birth? Indeed, it seems like the state then does have some interest in protecting the fetus. The main objection that I can see comes down to practical difficulties of the state intervening in a just way that does not, in fact, put some women at heightened medical risk. That’s a hard problem.
My position says abortion always should be legal early in term and in important contexts should be legal late in term, as in cases where the mother’s health or life are at risk. My position also accommodates the widespread view—one that Rand at least sometimes held—that a developed fetus has moral status beyond that of the mother. My position fits the facts and people’s usual moral judgments better than does Bayer’s birth standard. It does not rest on shaky claims about people’s reasons for late-term abortions or about the riskiness of them. I emphasize that my position is nevertheless very similar to Bayer’s position and yields the same results in almost all cases. But the exceptions matter.
Rand was mostly right about abortion. That she wavered in her views on late-term abortions and never fully resolved the relevant complexities hardly diminishes her insights on the topic. If it is a problem that Rand got it wrong on fewer than one percent of abortion cases, far and away the more pressing problem is that the Supreme Court got it wrong on more than 99% of cases.
Photo: Eduardo Merille
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I was with you right up to near the end when you said "... it seems like the state then does have some interest in protecting the fetus." That woke me up, because states don't have interests. Strictly speaking, states don't exist. Only people exist, and I can't see how any person other than the woman would have more standing in the decision to have an abortion or not.