On the Right to Get an Abortion

With the Supreme Court apparently ready to overturn Roe v. Wade and with various states imposing severe abortion restrictions, this is a good time to review why and when people have a right to get an abortion.

To preview and summarize my position: Before a fetus develops the physical capacity for consciousness, the fetus is not a person with a right to life, so abortion should be totally unrestricted at that stage. In fact, that is when most abortions occur.

After a fetus develops the physical capacity for consciousness, the fetus still does not have a right to use a woman’s body for its sustenance, so abortion should be allowed at any stage, unless the fetus can be delivered without imposing substantial additional risk and cost to the woman. So, for example, a woman carrying a nine-month-old fetus should not be able to get an abortion, unless giving birth threatens the woman’s health or life more than getting an abortion would. (I used to think that abortion should be legal before birth without any restrictions, but I’ve revised my position.)

A Problem of End Points

People who want to outlaw abortion from the moment of conception often show photos of relatively developed fetuses (usually a few months old) to emphasize the continuity between a fetus and a born child. For example, one of my friends recently posted the following imagery on social media:

Such activists never post photos of a very-young embryo, because it’s much harder to argue that something without organs is a person with a right to life. (WebMD has excellent images of a fetus at various stages.)

Not everyone who wants abortion restrictions wants to outlaw abortion from the moment of conception, of course. But many people do want to draw a bright line at conception and ban abortion even five minutes after conception, perhaps with some exceptions. (Note: Some people say killing a zygote, or allowing it to die, before it implants in the uterus does not count as an “abortion”; here I use the term more broadly.)

Some people who want to keep abortion legal want to draw a bright line at birth instead. But it is hard to argue that, in normal circumstances, it is okay for a woman to abort a fetus five minutes before birth.

Still, there is a very important difference between a fetus at any stage of development and a born child: The former is contained within the body of the pregnant woman, and it uses the body of the woman for its sustenance. So, contrary to the frequent claims of anti-abortion activists, a fetus just before birth is not identical to a born child—its physical relationship to the woman matters very much!

Prior to Consciousness There Is No Right to Life

A basic principle of a free society is that adults have the right to do whatever they want with their bodies and property, provided they do not violate the rights of others. Granted, our government very often violates people’s rights to autonomy, but it is wrong to do so. I’m just going to put that proposition out there without trying to prove it here. If you disagree with me, you should at least think that government ought not violate someone’s autonomy without a very good reason. (If you don’t even think that you’re just an authoritarian who doesn’t give any credence to individual rights.)

A basic argument for legal, unrestricted abortion at least in the first trimester starts with the observation that that an embryo or fetus that young does not have a sufficiently developed nervous system to be conscious. Before it gains consciousness or develops a nervous system capable of consciousness, an embryo or fetus does not have a right to life. Abortion at that stage, then, violates no one’s rights, so it should be legal, without restrictions.

Other stipulated stages for potentially restricting abortion are arbitrary. Various laws tie to a fetal heartbeat, but there is no reason to think a heartbeat conveys a right to life. (A person on an ECMO machine does not have a heartbeat yet has a right to life.) “Viability” depends largely on available technology. We can imagine a Star Trek scenario in which a doctor could “beam out” a just-fertilized egg and raise it in an artificial womb.

Rights do hinge in some sense on a person’s capacity for consciousness. That’s why, for example, it’s okay to take a “brain dead” person off of life support. You don’t necessarily have to be conscious to have a right to life—imagine someone in a deep coma—but you do have to have some physical capacity for consciousness. Below a certain age, an embryo or fetus has no such capacity. There’s going to be a grey area in which that capacity develops, but there is a clear-cut period when an embryo or fetus does not have that capacity, and a clear-cut period in which a fetus does. A just-fertilized egg cannot recognize its mother’s voice or experience pain; an eight-month old fetus can.

My claim, then, is that, during at least the first trimester, and until an embryo or fetus has a nervous system capable of supporting consciousness, abortion should be legal for any reason, without any restrictions. I further claim that there is no moral problem with getting an abortion at that stage. There is a moral problem with carelessly getting pregnant (or carelessly getting someone pregnant), but not with aborting an embryo or fetus before it develops the capacity for consciousness.

Why Abortion Matters

Sometimes opponents of legal abortion characterize abortion as a matter of “convenience.” But carrying a baby for several months, enduring the related health risks, and dealing with either raising the baby or putting the baby up for adoption, hardly are trivial matters. They impose heavy costs on the pregnant woman and often on her partner or family.

“Just don’t have sex,” some say. But sex is part of a normal and healthy adult life that can offer profound physiological, emotional, and social benefits. Many sexually active couples do not want to have a baby. Yes, people who do not want sex to end in pregnancy should use birth control. But birth control can fail. Women (and their partners) should be able to enjoy a healthy sexual life, even if they do not wish to become pregnant, without having to worry that they might be forced to carry a baby to term if they do get pregnant.

Addressing Counter Arguments

Often the argument against abortion entails the claim that even a young embryo or fetus is a potential person. I agree it is, but potential people do not have rights. Leonard Peikoff points out that, if we’re going to treat a potential person as a person, we might as well treat a potential corpse as a corpse. Treating a potential thing as the thing it might become doesn’t make any sense.

If a just-fertilized egg is a potential person, then so is the unfertilized egg and sperm before they meet. So are the nutrients that the adult person consumes to create or sustain the egg or sperm. In some sense a sandwich is a potential person, because an adult male can create sperm cells out of its nutrients, but I don’t know of anyone who thinks that’s morally important.

Some of the “arguments” for abortion bans are rhetorical gimmicks. For example, someone might say that a just-fertilized egg is a “human” because it has human DNA and a “being” because it is an entity; therefore it is a “human being” in the sense of a person with rights. That’s an equivocation.

Beneath almost all of the arguments that abortion at any stage, from the point of fertilization, is murder, rests an often-unstated religious premise that God ensouls a fertilized egg. Even on theological grounds, there is no reason to think that God always (or ever) chooses the moment of fertilization to ensoul an embryo. (If that were the case, then God, assuming he is all-powerful, would be the most prolific mass-murderer in existence, given that probably most fertilized eggs miscarry.) The broader point is that ensoulment is mystical nonsense and should play no part in law. We as human people do have “souls” in a naturalist sense. Our souls depend on our having the biological capacity for consciousness, which takes us back to my earlier point.

When Life Begins

Often proponents of abortion bans insist that “life begins at conception.” If we’re talking about a distinct organism, they’re right. A just-fertilized egg has the DNA code that will govern most aspects of the organism’s development. It is not like, say, a human skin cell in that respect. Theoretically, a scientist could use the DNA in a skin cell to create an embryo, but ordinarily a skin cell cannot develop into a person.

I am perplexed when some advocates of legal abortion say (something like), “We can’t know when life begins; hence, we should not outlaw abortion.” “Life” in this context seems to mean the life of a person with rights. But then why not just make the more-specific claim: “We can’t know when an embryo or fetus becomes a person with rights; hence, we should not outlaw abortion”? That sort of skepticism just doesn’t work. If we don’t know whether an embryo is a person with the right to life, and if that is the central issue, wouldn’t the uncertainty equally justify a ban on abortion, just to be safe?

My position is that it does make a difference that a fetus at some stage develops the capacity for consciousness. It also makes a difference that a fetus at any stage is inside a woman’s body and that it uses her body for its sustenance.

We can answer the question of when life begins in one of two ways. We can say that the cells that came together to create the embryo were alive, and that life extended back to the very first living thing on Earth, billions of years ago. In that sense, life had only one beginning (that we know of), and it continues to this day, through us and other living things. In that sense, life does not begin with the fertilization of an egg.

But if we’re talking about the life of a distinct organism, then the life of that organism begins at fertilization. But there is no good reason to think that a distinct human organism, just because it is alive, therefore is a person with with a right to life. At least the capacity for consciousness also is required. And, even if a fetus is a person with a right to life, we have to further ask whether it has a right to use a woman’s body for its sustenance without her consent.

Thomson’s Violinist

Let us agree that an ill and unconscious violinist has a right to life (assuming that the violinist is not brain dead). If you found that someone had drugged you to unconsciousness and hooked up your body to the body of the violinist, in order to use your kidneys to filter the violinist’s blood, would you have a legal right to disconnect? This is the question Judith Jarvis Thomson asks, and the answer obviously is yes. Another person does not have a right to use your body without your consent. The same principle applies to a fetus relative to the pregnant woman.

In his book Beyond Roe, David Boonin asks us to consider the case of McFall v. Shimp and of numerous hypothetical variations of the case. Here is the basic story. Robert McFall contracted aplastic anemia, a bone marrow disease. It turned out that McFall’s cousin, David Shimp, was the only marrow donor match available. But Shimp declined to donate his marrow to McFall. McFall sued Shimp, but a court ruled that the state may not force one person to let another person use his body. McFall died. The comparison to a fetus with respect to the pregnant woman is obvious. (In case the analogy is not obvious, Boonin goes to great lengths to make it so.)

A big problem with this comparison is that getting an abortion often is not just a woman “disconnecting” from the embryo or fetus. Sometimes, an abortion involves intentionally killing the embryo or fetus. If you were forcibly attached to the violinist, you could legally disconnect yourself but not dismember the violinist first, at least not gratuitously. If you had to kill the violinist in order to disconnect yourself, or if you had to kill the violinist in order to substantially decrease the risks of disconnection, maybe that would be okay. Those are harder cases to evaluate.

In his chapter “Cause of Death,” Boonin points out that the abortion pill with mifepristone and misoprostol causes a woman’s body to disconnect from and expel an embryo but does not directly kill the embryo. This pill is safe (relative to giving birth) but recommended only up to ten weeks of pregnancy. (See also Planned Parenthood’s fact sheet.) Abortions later than that typically do involve killing and then removing the fetus through “dilation and curettage.” There is an alternative, a hysterotomy abortion, that involves removing the fetus without killing it first, but it is more dangerous for the woman.

Let us return to the Star Trek scenario to help us think through these cases. Say a doctor could “beam out” the embryo or fetus, with zero risk to the woman, and successfully raise it to childhood. Further assume that plenty of people are available who want to adopt a child and who are willing and able to pay the related expenses. (Further assume, contrary to current law, that the woman does not have to worry about the child growing up and contacting her.) In that scenario, I’d say that a woman has a right to get an abortion only before a fetus gains consciousness. After that, given there is no risk or cost to the woman of putting the fetus up for adoption, I think the state properly may intervene to restrict abortion.

In the real world, though, carrying a child to term even in normal circumstances imposes substantial risks to the woman. My wife easily could have died from preeclampsia prior to giving birth had she not received excellent medical care. On the other hand, I can imagine realistic scenarios in which inducing birth would impose no greater risks on the woman than getting an abortion. So I am willing to say the state reasonably may restrict abortion, only if giving birth would be about as risky and costly for the woman, or less risky and costly, as getting an abortion. Given current technology, often getting an abortion is substantially less risky for the woman, so abortion hardly ever should be restricted. (Remember here that late-term abortions are rare.) If we develop technology that makes removing a living fetus from a woman substantially easier and less risky for the woman, then the same general principle would justify restrictions on abortion in relatively more cases.

Interestingly, my position brings me closer to the average U.S. position, which calls for legal abortion in the first trimester but restricted abortion in the third trimester. But I think people who say abortion should be illegal in all cases late in term just are not thinking seriously about the risks imposed to the woman of carrying a fetus to birth, which can vary dramatically case to case. A woman should be able to get an abortion at any stage if continuing to carry the fetus threatens her health or life.

Answering Objections

I do have some serious practical concerns about restrictions on late-term abortions of any sort. Who decides? Are we going to say that women who get an abortion in the relevant circumstances, and doctors who administer them, are subject to criminal penalties? If so, what sort of penalties? An anti-abortion prosecutor easily could make life hell even for a doctor who provided abortions in appropriate circumstances. However, it should be possible to create a legal system in which a doctor easily could document reasons to provide a late-term abortion in a way that would solidly protect the doctor from prosecutorial abuse.

The philosopher Ben Bayer takes the position that I used to hold, that individuation is what really matters, and a fetus does not become a person with rights until it is separated from the woman through birth. But I don’t think this answers the objection that, if a woman could about as easily, or more easily, give birth than have an abortion, then the fetus does have some moral status that should come into play.

Bayer’s position implies that if a woman wants to get an abortion five minutes (or a week) before she otherwise would give birth, even when giving birth would be about as safe or even safer for the woman, then government should have nothing whatsoever to say about that. Practically speaking, such a scenario is vanishingly rare. But I do think our principles should be able to account even for unlikely cases and for potential advances in technology.

Undoubtedly a born child is a person with rights deserving of government protection. I think that a developed fetus also is deserving of some government protection, when a woman getting an abortion would not substantially reduce a woman’s risks and costs relative to giving birth.

I’ll note here that I also think that government properly offers some protections to animals. For example, I think it should be illegal to torture a dog to death just for the hell of it. I don’t know if Bayer has a position on animal welfare with respect to government protections. But most people who are pro-choice do support some government protections for animals. It would be strange to say that a chicken deserves some governmental protections but that a developed fetus deserves no protections.

Summary

Most abortions take place early in the term, before the fetus has gained the capacity for consciousness. There is no (good) justification for any restrictions on abortion at that stage. After a fetus has gained the capacity for consciousness, a fetus still uses a woman’s body for its sustenance. The woman has a right to discontinue that physical, bodily support of the fetus. But, in cases when the woman could about as safely and easily give birth as have an abortion, the woman should do the former, and the government has an interest in protecting the fetus in such cases.

See also my May 24 article “Abortion and Individuation” and my July 2 article “Ayn Rand's Evolving Views on Late-Term Abortion.”