Pro-Life, Pro-Choice
119 pages
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119 pages
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In this provocative and accessible book, the author defends a pro-choice perspective but also takes seriously pro-life concerns about the moral value of the human fetus, questioning whether a fetus is nothing more than "mere tissue." She examines the legal status of the fetus in the recent Personhood Amendments in state legislatures and in Supreme Court decisions and asks whether Roe v. Wade should have focused on the viability of the fetus or on the bodily integrity of the woman.

Manninen approaches the abortion controversy through a variety of perspectives and ethical frameworks. She addresses the social circumstances that influence many women's decision to abort and considers whether we believe that there are good and bad reasons to abort. Manninen also looks at the call for post-abortion fetal grieving rituals for women who desire them and the attempt to make room in the pro-choice position for the views of prospective fathers.

The author spells out how the two sides demonize each other and proposes ways to find degrees of convergence between the seemingly intractable positions.


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Date de parution 01 juillet 2014
Nombre de lectures 0
EAN13 9780826519924
Langue English

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PRO-LIFE, PRO-CHOICE
PRO-LIFE, PRO-CHOICE
SHARED VALUES IN THE ABORTION DEBATE
BERTHA ALVAREZ MANNINEN
VANDERBILT UNIVERSITY PRESS
Nashville
© 2014 by Vanderbilt University Press
Nashville, Tennessee 37235
All rights reserved
First printing 2014
This book is printed on acid-free paper.
Manufactured in the United States of America
Library of Congress Cataloging-in-Publication Data on file
LC control number 2013034847
LC classification number HQ767.5.U5M34 2014
Dewey class number 179.7'60973–dc23
ISBN 978-0-8265-1990-0 (cloth)
ISBN 978-0-8265-1991-7 (paperback)
ISBN 978-0-8265-1992-4 (ebook)
For my daughters, Michelle and Julia, who have given me new eyes with which to view and interpret the world .
CONTENTS
Acknowledgments
Introduction and Background
1. Why Roe v. Wade ’s Argument Fails
2. Responsibility and Other Worries
3. Of Women and Fetuses: Battling the False Dichotomy
4. Pro-Choice, Not Pro-Abortion: Rethinking the Pro-Choice Strategy
5. A Pro-Choice Moral Framework
6. Respecting Fetal Life and Pregnant Women: Building upon Shared Values
7. The Forgotten Father: Men and Abortion
Conclusion
Notes
Index
ACKNOWLEDGMENTS
The production of this book would not have been possible had it not been for the combined efforts of so many people. I would like to first thank Michael Ames, my editor, for his indispensable comments, remarkable patience and good will, and dedication to seeing the book come to fruition, as well as Joell Smith-Borne, Meg Wallace, Dariel Mayer, and Silvia Benvenuto, who were instrumental in its production. I also owe much gratitude to Jackie Gately, who guided me through earlier incarnations of the manuscript and helped me edit it into its final form. Along the way I have enjoyed conversations with many colleagues who have influenced this writing: Nina Anton, Sasha Billbe, Andrew Brei, Monica Casper, Shari Collins, Ryan Ehrfurth, Bonnie Jean Kurle, Shannon Lank, Heather Libby, Kurt Liebegott, Sheila Lintott, Jack Mulder, Melissa Manchester Mulder, Nathan Nobis, Kate Padgett Walsh, Michael Paradiso-Michau, Leticia Sanchez, Maureen Sander-Staudt, Allan Sawyer, Kevin Sharpe, Marlene Tromp, Shalon Amber van Tine, and Eric Thomas Weber. My apologies to anyone I may have inadvertently left out.
As they often do, many of my teachers have also played an indispensable role. Martin Curd, William McBride, Patrick Kain, and Mark Bernstein all helped to sow the seeds that ultimately led here. Carmela McIntire and Lisa Blansett, thank you for keeping my love of writing and literature alive during my philosophical studies. And finally, thank you to Paul Draper who was my first and only bioethics teacher—and one of the best teachers I had throughout my entire college experience. Any suc cess I ultimately achieve has its roots in your guidance, patience, and mentoring during my youth and in subsequent years.
I would also like to thank the administration at Arizona State University’s School of Humanities, Arts, and Cultural Studies for their continued financial and emotional support. I am also very grateful to the Center for Critical Inquiry and Cultural Studies at Arizona State University for financially supporting the costs of producing this manuscript via their book subvention award.
Then there are my students, who keep my mind fresh and my heart fulfilled. Their questions and challenges over the years have helped shape all of my research in some way. They have taught me as much as I have taught them.
I would like to thank my family and friends, who have supported all of my academic endeavors and have kept me grounded, and especially my husband, Tuomas, whose support, friendship, and companionship has been invaluable throughout my education and career. And finally there are my children, Michelle and Julia, who were always there waiting for me when I got home after a long day of writing with hugs, kisses, and the energy, magic, imagination, and love that only comes with childhood.
INTRODUCTION AND BACKGROUND
My personal views about abortion have changed throughout the years. As a teenager, being the product of a Catholic home, I was very “prolife.” I believed that the fetus is a person from the moment of conception and that its right to life trumps the bodily rights of women. While I conceded (with hesitation) that abortions are permissible in cases when the mother’s life is threatened, I did not make any allowances for fetuses created through rape or incest.
In college I took classes in applied ethics and bioethics, and was introduced in each class to Judith Jarvis Thomson’s influential article “A Defense of Abortion,” in which she argues that even if the fetus is considered a person with all the moral rights thereof, this does not mean a woman can be compelled to gestate it. This is because no person’s right to life imposes an obligation upon others to make large bodily sacrifices in order to respect that right. After much inner turmoil, Thomson’s argument convinced me, and I spent the remainder of my college and graduate school career being very ardently “prochoice.” In my dissertation, I argued that embryos and fetuses possessed no moral standing until at least midgestation because it is only then that they acquire the necessary neural apparatus for conscious awareness, and that early- to midpregnancy abortions are no different from using contraception because both methods prevent the existence of a human person.
On Saturday, May 10, 2008—the day before Mother’s Day—I discovered I was pregnant with my first child. Twelve weeks later we had our first ultrasound, and I was in awe of how much was happening inside my body even though I could not feel it. As the technician talked to my husband and me and assured us that the pregnancy was progressing well, I watched my little fetus somersault around in my belly. I couldn’t believe she could do so much at such a young age. During the drive home I stared at my first ultrasound picture and heard a voice in my head that was utterly foreign to me given the beliefs I had held for the previous ten years: I could never bring myself to abort this fetus, and abortion, I found myself thinking, is certainly not akin to contraception.
The months that followed continually reaffirmed my newfound respect for fetal life; every kick, every movement, every reaction to her father’s voice incited a sense of awe. I realized that regardless of the myriad philosophical debates concerning fetal personhood, once I was pregnant very little of it mattered. Gestating my daughter did something for me that no amount of studying was able to do: it forced me to look at pregnancy, birthing, and abortion as real issues in the lives of real people, including both women and fetuses.
I was torn, so in my mind I recounted all the reasons I identified as prochoice. I still believe that abortion choice is an essential aspect of women’s reproductive freedom. In order for women to get ahead in terms of their education and careers they have to be free to obtain an abortion if they ever become pregnant before they are ready to become mothers. Raped women should not be forced to gestate a fetus that is a permanent reminder of the violence and violation they endured. Motherhood is such an identity-altering role that it must be one that women choose for themselves. Children should be born into a home where they are wanted and cared for, and to parents who are secure enough in their lives to provide for them materially and emotionally. The consequences of criminalizing abortion will not be an explosion of healthy babies being born to happy mothers, but rather the death of fetuses and women at the hands of illegal abortion providers—indeed, almost half of abortions around the world take place in countries with restrictive abortion laws. Finally, Thomson’s argument still rings true to me: I cannot endorse any policy that compels one subset of the population to give their bodies over in a physically demanding, intimate, and potentially dangerous way in order to sustain the lives of another subset of the population.
Nevertheless, I could no longer justify my position by dehumanizing fetuses, by writing them off as mere masses of cells and tissue that have no value. I forced myself to look at abortion pictures and videos because I could not continue to support something without facing its ugliest and most graphic side. It is hard to deny that even a late-first-trimester abortion destroys something that is human and looks like a very small and underdeveloped baby. And although I could not bring myself to believe that a human zygote or early embryo is equivalent in moral status and rights to a born child or to the woman who is gestating it, the line that demarcates when the fetus becomes an entity worthy of moral status is not at all obvious. There has to be a way, I thought, that these views can live in harmony. It must be possible to be prochoice and still believe wholeheartedly that fetal life is valuable.
I decided to take my struggles and ambivalence into my academic world, and the response, initially, was unfavorable. Although I remained a supporter of abortion choice, I expressed to several of my colleagues and peers my concern about the prevalence of abortion and the wanton attitude many (though certainly not all) abortion rights supporters take in regard to fetal life. Comments such as these have often attracted criticism. The most scathing instance of this was at a conference when I delivered a short essay suggesting that prochoice advocates should acknowledge that fetal life has value. My commentator, who participated in marches to legalize abortion in the 1970s, reacted very negatively. Acknowledging the value of fetal life, she maintained, would cause the women’s movement to regress and would disrespect the sacrifices made by women before me that had allowed me my liberation and the right to control my reproductive life. She said that if my suggestion were adopted, it would mean the downfall of the prochoice movement.
Similarly, when I confess that I am prochoice, I am immediately met with accusations that I endorse the killing of babies. I have been called a murderer, antibaby, antifamily, and proabortion. I’ve been told that I probably stand in front of abortion clinics and celebrate the killing of babies, that I would probably try to get pregnant just to be able to abort and see what it felt like.
My position, therefore, has struggled to find a home in traditional abortion polemics.
Because the conversations did not seem productive, I stopped trying to share my views with others and withdrew into the privacy of my own research. There had to be other women, other prochoice philosophers and academics, who felt as I did. Where were the articles and books that do not get assigned in typical applied ethics courses; essays that carefully navigate the difficult emotional minefield that is abortion without making it seem that the answers to the tough questions are abundantly clear?
I was surprised and happy to find a healthy body of literature from feminist philosophers, psychologists, and sociologists who are prochoice yet believe that intrauterine life is worthy of respect and that some instances of abortion choice have ambiguous dimensions. Examples of such essays abound throughout this book. One of the most influential for me is Frances Kissling’s “Is There Life After Roe ?” in which she encourages prochoice feminists to illustrate respect for nascent human life: “Why should we allow this value to be owned by those opposed to abortion? Are we not capable of walking and chewing gum at the same time; of valuing life and respecting women’s rights? Have we not ceded too much territory to antiabortionists by not articulating the value of fetal life?” 1
I decided to take these questions to my students. Only a handful of them clearly identified with one view over the other, and the vast majority of them, both men and women, were tired of the traditional abortion rhetoric. They did not feel like either side adequately captured their views. Students who supported abortion choice repeatedly pointed out that there is more to the conversation than just whether abortion should be legal. There are ethical dimensions to that choice and instances of abortion that can be classified as morally dubious that prochoice advocates seemed hesitant to discuss. One student put it this way: “If you get an abortion to take care of your kids, or finish school, I’m with you—I have your back. But don’t get an abortion and act like it’s just an operation—like you’re removing a mole or something.” Another student commented: “I don’t want to say that you can’t get an abortion, but there are times when I really think you shouldn’t . I don’t know if that makes sense.” It made sense to me, but the fact that this student and others had such a hard time accepting that such a view can be intelligible helped me realize that much philosophical literature on abortion is out of touch with these kinds of concerns.
What started in an ultrasound room five years ago has led me here. This book is my attempt to offer a philosophical justification of my current view on abortion: I defend a prochoice position and yet acknowledge that there is much more to the ethical debate than simply a question of rights.
I begin by calling attention to the myriad recent attempts to pass personhood amendments in various U.S. states in order to codify into law the view that from the time of conception embryos and fetuses are persons, with all the legal rights thereof. The intent of those who advocate passage of these amendments is to create sufficient controversy and opposition to force the U.S. Supreme Court to revisit Roe v. Wade and overturn it. For reasons I will explain, the arguments used in favor of abortion rights by the justices who decided Roe are indeed susceptible to collapse if the human fetus is granted the rights of persons. Pro-choice advocates need to be more vigilant concerning the repeated attempts to pass such amendments, and they should arm themselves with a defense of abortion rights that would survive scrutiny in the face of a successful state-turned-federal personhood amendment.
I then proceed to develop and defend Thomson’s moral argument in favor of abortion rights, but I also illustrate that her thesis has important legal implications. Thomson’s position, I believe, renders the abortion right impervious to personhood amendments, yet it also paves the way for the argument that supporting abortion rights need not entail devaluing the lives of fetuses. While I could never endorse a law or policy that would compel unwilling people to donate blood or nonvital organs to save the lives of those who need a transplant, this does not mean that the lives of those who are ailing are devoid of moral status and worth. Abortion can thus be defended by an appeal to bodily autonomy, and yet we can still respect fetal life and feel some degree of loss at its demise. An appeal to bodily autonomy does not mean endorsing a laissez-faire position on abortion rights that asserts a woman’s right to abort a fetus whenever she wishes, even in later gestational stages.
Next I explore many of the issues that have come up during my years of researching and teaching abortion ethics. I tackle the pervasive dehumanization and disrespect of both pregnant women and fetuses. Abortion choice supporters sometimes use terminology meant to detract from the fetus’s humanity (“uterine material,” “products of conception”), while abortion choice detractors sometimes regard women who obtain abortion as sexually promiscuous, irresponsible, callous murderers. Some abortion rhetoric dichotomizes women and fetuses, painting them as adversaries. This happens often through images in which fetuses are typically portrayed as free-floating infants, existing independently of the human bodies who nurture them. I propose ways in which abortion rights supporters can use images in a manner that stresses the interdependent relationship between the woman and the fetus and, in turn, contextualizes abortion as a very personal and emotional issue with important social causes and implications.
In every one of my classes where I teach abortion ethics, I make it a point to stress that prochoice is not synonymous with proabortion . Here I untangle the use of these terms, and provide evidence that those who support abortion choice do not necessarily tout abortion as a cause for celebration. I focus on the concerns of women who either have obtained abortions or support women’s ability to choose to do so, and yet regard fetuses as deserving of respect. This sentiment is increasingly prevalent among the younger prochoice generation, and it is vital that the prochoice community defend abortion in a manner that will resonate with them. Contrary to the worry that doing so will adversely affect abortion rights, the unwillingness to humanize the fetus is turning people away from the prochoice community. This is recognized even by members of the National Abortion and Reproductive Rights Action League (also known as NARAL Pro-Choice America): NARAL pollster Anna Greenberg encourages the prochoice community to “recognize the moral complexity” of abortion so the right to abortion will not, as journalist Sarah Kliff puts it, “fade away with postmenopausal militia.” 2
Next I make the case for a standard by which we can judge the moral dimensions of individual abortion decisions without encroaching on the right to obtain one. Throughout Leslie Cannold’s research on the similarities and differences in pro- and anti-choice women’s attitudes toward abortion, she notes that many in the former group wish to engage in a different kind of conversation that goes beyond the language of rights: “For many prochoice supporters, the thunder of many of these unanswerable questions has simply become too loud to ignore: are there ‘irresponsible’ pregnancies? Which reasons for having an abortion are bad ones? Does the fetus matter, how much, and why? Even if women have a right to choose abortion, is it always right for them to do so?” 3 Here, I provide a moral framework for addressing these sorts of questions by appealing to virtue and care ethics. These moral theories, in addition to being action-centered, are primarily agent-centered, so they take into account a person’s motivations, reasoning process, and the virtues or vices she is manifesting when acting in certain ways. Abortion decisions that manifest care, respect for fetal life, and responsibility can be deemed morally good, whereas abortion decisions that manifest callousness or irresponsibility would be deemed, at best, morally dubious.
This kind of judgment is not limited to abortion rights; many of the rights we possess can face similar scrutiny. We all have a right to free speech, for example, but surely there is a difference between exercising that right by spreading messages of love and acceptance and hiding behind the freedom of speech to advertise prejudice and hate. We all have a right to use our money in any legal manner we see fit, but it would be deeply wrong to taunt homeless people by waving our dollars bills in front of them. There is a distinction, therefore, between holding that we have certain rights, and maintaining that we are using those rights well.
Another theme that repeatedly arises in Cannold’s interviews is that an ideal society would illustrate respect for both fetuses and pregnant women by helping women who experience unplanned pregnancies to keep and raise their children if they so wish. This shared value can be a springboard toward some degree of convergence, and I discuss some ways to achieve this from a prochoice perspective. I first explore ways in which the prochoice community can embrace and care for women who feel loss or grief after an abortion. Such care dispels the stereotype that prochoice advocates regard abortion wantonly and fetal death as inconsequential. Acknowledging the validity of post-abortion sorrow simultaneously acknowledges the worth of what was lost.
Second, I address the manner in which some abortion rights detractors attempt to counsel women who are grieving after abortion in ways that only agitate them and exploit their heartache; providing a prochoice alternative to post-abortion grieving may better serve the emotional state of these women. In addition to quality pre- and post-abortion counseling, mourning rituals targeting loss of pregnancy due to abortion or miscarriage can be an incredibly useful tool to help women and men struggling in the emotional aftermath of their loss.
I also discuss empirical evidence that certain social programs, such as easy access to effective contraception and financial safety nets designed to care for women and children, can go a long way toward curbing the occurrence of abortion and helping struggling young and single mothers to step off the treadmill of poverty to which they are often tethered.
Years ago a male student confided in me that his girlfriend had obtained an abortion against his consent and that the loss of his child (as he put it) haunted him every day. Because of this conversation and more like it that I have had throughout the years, I believe prospective fathers’ concerns need to be taken more seriously, even though it is understandable that their concerns have been downplayed given the fear that men will regain control over the reproductive lives of women. I begin my discussion of men’s concerns by detailing the experiences of “waiting-room men” who accompany their partners to the abortion clinic. These stories illustrate that many men who acknowledge and accept that abortion remains a woman’s choice nevertheless suffer when abortions occur and yearn to be included in the conversation and given post-abortion counseling.
Of course, there are instances when a man favors an abortion and the woman does not. Philosopher Steven Hales argues that when a man favors an abortion but his partner chooses to bring the pregnancy to term and rear the child, the man should be granted a “right of refusal”—a right to opt out of all the social obligations and responsibilities that come with parenthood. This is meant to parallel a woman’s right to an abortion. Although Hales’s concerns should be taken seriously, his argument in favor of a right of refusal ultimately fails. The most difficult cases of disagreement, however, are like the one my student dealt with: when the prospective father wants to keep and raise the infant and the woman wants to abort. Although men should not be permitted to compel a woman to gestate, an appeal to virtue and care ethics helps us to consider how best to exercise the right to an abortion when the prospective father dissents.
Pregnancy and reproductive rights do profoundly affect the lives of individual women, but abortion is not solely a woman’s concern—any more than institutionalized sexism, rape culture, and domestic violence are. Although women are disproportionality affected by all these issues, the responsibility to address them falls on many shoulders. For example, because violence against women is typically perpetrated by abusive men, domestic violence is just as much a man’s issue as a woman’s. Abortion is also a man’s issue, a societal issue, a class issue, and an economic issue. If we are, as a society, truly concerned with understanding the prevalence of abortion, and if some of us are genuinely interested in curbing its occurrence, it is necessary to explore all of these aspects and to accept that responsibility for abortions extends beyond that of the individual woman procuring one. In this sense, it is a mistake to regard abortion as solely a women’s issue—it is a human issue.
As I was writing this manuscript, I struggled with what language I should adopt to refer to abortion choice supporters and detractors in a way that adequately respects their views. I have chosen not to use the term prolife because it implies that those who support abortion choice are anti-life. This certainly doesn’t describe me or any of my fellow abortion rights supporters. I wish that every pregnancy were embraced and every child wanted, that no woman were ever a victim of sexual violence or abuse, that our society were as pronatalist as it claims to be, and that educational and career opportunities were just as open to young and single mothers as they are to men and women without children. In other words, I would love a society that is as abortion-free as possible.
I have decided to use the traditional term prochoice to denote those who support access to abortion and “anti-choice” for those who do not. I recognize that this also has unfavorable implications. A colleague and good friend of mine who is against abortion rights takes issue with the term because he rejects abortion as even being part of the realm of permissible choices. It’s not that abortion is a bad choice, he tells me; it’s that he doesn’t think it should be a choice at all. Keeping this in mind, when I use these terms I mean them both as a short-hand way of denoting that there are people who favor abortion as a permissible reproductive choice for women to make, and that there are others, like my friend, who do not.
1
WHY ROE V. WADE ’S ARGUMENT FAILS
Embryos and fetuses are alive and human. This is a biological fact. But biological facts alone do not settle moral issues. The contentious issue is whether embryos and fetuses are human persons —that is, whether fetuses are proper subjects of moral status and moral rights, and, consequently, legal rights. This is not an empirical question: a closer look at fetal biology will not help us to determine whether a fetus is a human person. The question of what constitutes a person is a metaphysical, philosophical, and theological one. 1
Philosophers, ethicists, theologians, politicians, and everyday men and women all have beliefs concerning what it means to be a person. Leaders of the Catholic Church, for example, believe that all members of the human species, from conception until death, are persons. 2 On the other hand, philosophers Mary Anne Warren, Peter Singer, and Michael Tooley argue that a necessary requisite for personhood is the possession of certain cognitive capacities, such as self-consciousness, reasoning abilities, autonomy (the ability to self-govern and make rational choices), and moral agency (the ability to make morally significant choices). 3 For others, such as philosophers Jeff McMahan and L. W. Sumner, the basic capacity for consciousness is sufficient for some degree of moral status. 4
PERSONHOOD AMENDMENTS
Despite the lack of consensus, there have been various attempts to codify into law conservative views concerning fetal personhood. In 2011 Mississippi voters rejected, by a narrow margin, a much publicized personhood amendment that would have changed the state’s Constitution to grant personhood to fertilized eggs, embryos, and fetuses. On April 13, 2010, Nebraska lawmakers enacted one of the boldest challenges to Roe v. Wade since it was decided in 1973. The law, titled the “Pain-Capable Unborn Child Protection Act” (LB 1103), bans abortion after twenty weeks gestational age on the grounds that after this point in pregnancy a fetus is capable of feeling pain and would, therefore, suffer immensely if aborted. 5 The law includes an exception for the life or health of the pregnant woman, although it does not take mental health into account. 6 It is no coincidence that Nebraska is the home of LeRoy Carhart, who is one of the few physicians in the United States willing to perform late-term abortions. Carhart stepped up his practice after the 2009 murder of George Tiller, who was widely known for his late-term abortion practices.
The Nebraska law directly challenges Roe by enacting a new threshold for when states can prohibit abortion. Under Roe , abortion access cannot be denied by states (though it can be restricted) until the fetus achieves viability at a gestational age of approximately twenty-five weeks. The Nebraska law thus decreases the window for abortion by five weeks.
Supporters of personhood amendments have openly admitted their desire for the proposed policy to be challenged all the way up the judicial ranks to the U.S. Supreme Court in the hopes that the Court will overturn Roe . For example, Robert Muise of the Thomas More Law Center states that personhood amendments establish the “inviolable right of every innocent human being to life,” as well as defining “person” as a human being of any age, including “unborn offspring at every state of their biological development, including fertilization.” He explains that “the proposal establishes a constitutional principle; it does not enact criminal or civil legislation. And it establishes a constitutional principle that provides a direct challenge to the fundamental holding of Roe v. Wade .” 7 In reference to his state’s 2011 ballot initiative, Missis sippi governor Haley Barbour explained that the ultimate goal of the personhood amendment was not to outlaw abortion in Mississippi but to use the measure as a springboard to the Supreme Court. 8
The Mississippi and Nebraska efforts are only two in a series of attempts to challenge abortion rights within the last few years; most of these challenges have been in the form of proposed personhood amendments. In the 2008 election year, Colorado and Montana had propositions on their state ballots (Propositions 48 and CI-100, respectively) that, had they passed, would have expanded the legal definition of personhood to encompass newly fertilized eggs. Some residents of Georgia attempted to do the same in 2008, introducing a personhood amendment (HR 536) in the state legislature, but the issue failed to make it onto the Georgia ballot. Two years after the citizens of South Dakota rejected a change to the state Constitution that would have banned all abortions, in 2008 they voted on and rejected a revised version of the ban that would have made exceptions for rape, incest, and maternal health.
In addition to Nebraska, Alabama, California, Colorado, Florida, Michigan, Mississippi, Missouri, Montana, Nevada, and Virginia all attempted to pass personhood amendments in 2010. Although none were successful, more people voted in favor of the amendments than had before. The continual attempts to pass similar laws in previous election years indicate that this issue will likely be repeatedly raised. Indeed, the persistence of supporters of personhood amendments can be seen throughout the four decades since the legalization of abortion. National Right to Life made the first attempt at passing a person-hood amendment on the federal level, in 1975. In 1979 the American Life League proposed the Paramount Amendment to Congress, and in 1981, National Right to Life tried once more with the Unity Human Life Amendment. Since 2008, the American Life League has continually attempted to pass a federal personhood amendment.
The foundational assumption that underlies all these amendments is that abortion is legal only because fetuses are not considered persons. Therefore, a federal law that denotes fetuses as persons would render abortion tantamount to murder and subject to criminalization. 9 Let us take a look at whether this conjecture survives scrutiny.
WHERE ROE GOES WRONG
There are three ways we can interpret the right to abortion. First, abortion can be regarded as a mechanism to prevent unwanted parenthood in the social sense—in order to prevent subjection to the obligations and responsibilities that come with rearing a child. Second, abortion can be regarded as a mechanism to prevent parenthood in the genetic sense—in order to prevent the existence of an individual who is one’s genetic child. This distinction is important because abdication of social parenthood can be achieved by placing the infant for adoption. For some women, however, the thought of having a child in the world for whom she is not caring is unbearable. Therefore, they want to exercise their abortion right in order to prevent the existence of such a child altogether. Third, the right to an abortion can be interpreted as an instance of the broader right to bodily autonomy—the right not to be subjected to unwanted bodily intrusion. I argue that it is only in this third manner that the right to abortion can survive the challenges placed on it by a personhood amendment. Unfortunately, this is not the line of reasoning adopted by the Supreme Court justices who decided Roe v. Wade . Given the rationale underlying Roe , the right to an abortion would stand on tenuous ground if a federal personhood amendment were to pass.
In their defense of abortion rights, the Supreme Court justices appealed to a certain practice of reproductive autonomy: the right to refrain from procreation. The problem with this is that a successful argument in favor of abortion rights that is based on the right to refrain from procreation, whether in the social or genetic sense, is contingent on the premise that the human fetus is not a person, which is exactly the premise that the justices refused to address in any manner other than by appealing to legal precedent that denies fetuses the status of persons. The justices conceded that the “Constitution does not define ‘person’ in so many words” but that typically the term person applies “only postnatally. None indicates, with any assurance, that it has any possible prenatal application.” 10
Appeal to precedent may sometimes be a defensible manner of deciding an issue, but it is not always the best way. Precedent has been challenged and subsequently altered. Indeed, the Supreme Court has recanted some of its own decisions. For example, Brown v. Board of Education (1954), which outlawed segregation of public schools, overruled the Supreme Court’s decision in Plessy v. Ferguson (1896), which permitted segregation. Lawrence v. Texas (2003), which invalidated sodomy laws, overruled Bowers v. Hardwick (1986), which denied a right to sexual privacy. Moreover, assigning constitutional personhood to a group of individuals who previously lacked it is not new—such was the case for women and African Americans. As far as abortion is concerned, the justices refused to advance any argument of their own concerning whether the human fetus meets the definition of moral personhood, arguing that it was unnecessary in the context of the case for them to do so: “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at a consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.” 11 This leaves the constitutional status of the fetus open to future challenges, which is exactly what we are seeing now with the repeated attempts to pass personhood amendments.
When women and African Americans were accorded the status of constitutional persons, it was not that act that made them persons in the moral, and therefore legal, sense; rather recognizing them as constitutional persons came after the realization that these human beings were already persons in the moral sense but that society had, shamefully and for far too long, ignored or overlooked their moral status. In other words, moral personhood is antecedent to constitutional person-hood; the latter is meant to provide legal rights to a group of human beings after it is established that they are persons in the moral sense. The intent of those who support personhood amendments is to codify the moral belief that fetuses are persons into law so the ascription of constitutional personhood—and, consequentially, the overturning of Roe —can follow.
The justices who wrote the Roe majority opinion rejected the premise that abortion rights can be defended on the basis of bodily integrity: “It is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one’s body as one pleases bears a close relationship to the right of privacy previously articulated in the Court’s decisions. The Court has refused to recognize an unlimited right of this kind in the past.” 12 Instead, the justices defended the decision to grant women abortion rights on the basis of another interpretation of the right to privacy—one that grants women the opportunity to avoid the future burdens and demands of unwanted pregnancy and parenthood: 13
This right of privacy . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. 14
All the considerations brought up by the justices deal with the negative consequences of forcing women to have unwanted children, and most of these reference the burden of social parenthood. According to the justices, up until the time that the fetus is viable, women have a right to seek an abortion to avoid such burdens unfettered by the government, unless the abortion procedure is perceived as being more dangerous to her health than actual childbirth. 15
The right of all people to take steps to avoid procreation, whether in the social or genetic sense, is a common expression of reproductive liberty—one that has been repeatedly referenced in other cases concerning reproductive freedom. Indeed, this appeal to reproductive autonomy as justification for Roe is unsurprising; the decision was defended by Justice Harry Blackmun as the next logical step after Griswold v. Connecticut (1965) struck down a ban on issuing contraception to married couples and Eisenstadt v. Baird (1972) did the same with regard to unmarried individuals. In the latter case, the justices wrote: “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” 16
The justices further asserted this interpretation in Carey v. Population Services International (1977): “Regulations imposing a burden on a decision as fundamental as whether to bear or beget a child may be justified only by compelling state interests, and must be narrowly drawn to express only those interests.” 17 In Davis v. Davis (1992), the first embryo disposition case, the Supreme Court of Tennessee explicitly appealed to the right to privacy in order to defend its contention that procreational autonomy includes the right to refrain from procreation:
That a right to procreational autonomy is inherent in our most basic concepts of liberty is also indicated by the reproductive freedom cases . . . and by cases concerning parental rights and responsibilities with respect to children. . . . For the purposes of this litigation it is sufficient to note that, whatever its ultimate constitutional boundaries, the right of procreational autonomy is composed of two rights of equal significance—the right to procreate and the right to avoid procreation. 18
The validity of a right to avoid procreation has long been acknowledged, and I do not wish to contest it. My concern lies with whether this consideration can properly be used to defend a right to an abortion given the justifications provided by the justices who decided Roe.
The right to avoid procreation is best understood as the right to refrain from having children. While exercising this right does entail that you can prevent the existence of a child who would be genetically related to you, it does not entail that you can kill an already existing child if you decide, after her birth, that parenthood is not all it’s cracked up to be. You may be able to abdicate your role as a social parent by signing away parental rights and the correlative parental responsibilities, but once a child is born, she is acknowledged as a moral entity, a being with rights and interests of her own, and therefore she cannot be killed in order to uphold her parents’ right to abstain from procreation in either the social or genetic sense.
In Davis v. Davis , the Tennessee Supreme Court decided that when there is a conflict among genetic donors over the fate of surplus preembryos, 19
disputes involving the Disposition of preembryos produced by in vitro fertilization should be resolved, first, by looking to the preferences of the progenitors. If their wishes cannot be ascertained, or if there is dispute, then their prior agreement concerning Disposition should be carried out. If no prior agreement exists, then the relative interests of the parties in using or not using the preembryos must be weighed. Ordinarily, the party wishing to avoid procreation should prevail , assuming that the other party has a reasonable possibility of achieving parenthood by means other than use of the preembryos in question. If no other reasonable alternatives exist, then the argument in favor of using the preembryos to achieve pregnancy should be considered. 20
What is very telling is that the welfare of the embryos themselves is not a relevant factor in the decision; the disposal of the embryos is seen as relevant only insofar as it affects the interests of the genetic donors. Indeed, before the judges announced their final decision in this case, a fair amount of time was devoted to addressing the issue of whether embryos should be viewed as persons or property—that is, whether embryos should be seen as entities with legal and moral rights, including the right not to be killed, or whether they should be seen merely as possessions with no intrinsic rights of their own.
The Tennessee court agreed that embryos “cannot be considered ‘persons’ under Tennessee law; . . . Nor do preembryos enjoy protection as ‘persons’ under federal law.” 21 Although the court acknowledged that embryos ought not to be viewed as merely akin to any other type of tissue in the body, they did offer a reason why embryos should not be considered persons: “The preembryo is due greater respect than other human tissue because of its potential to become a person and because of its symbolic meaning for many people. Yet, it should not be treated as a person, because it has not yet developed the features of personhood, is not yet established as developmentally individual, and may never realize its biologic potential .” 22
The judges in Davis v. Davis comprehended that in order to consider whether embryo disposal is a legitimate exercise of the right to avoid procreation, it is necessary to antecedently determine whether frozen human embryos are entities deserving of rights. In addition to appealing to legal precedent, the judges offered additional reasons that embryos should not be considered persons—for example, that there are certain traits possessed by persons that embryos have yet to acquire. Such reasons can be scrutinized from a philosophical standpoint. Although the judges hesitated to refer to frozen embryos as merely property, for all intents and purposes this is exactly the status they accorded to them. If the embryos were regarded as persons, the right to avoid procreation could not extend to their destruction because the right to avoid procreation involves preventing the existence of persons who are one’s children, not destroying existing persons who are one’s children.
Given this, we can see that the arguments given in Roe do rely on denying fetal personhood. The justices admitted that they lacked the expertise to volunteer an argument that would settle this issue, and they were probably correct to think this. Yet in order to maintain a plausible argument that the right to avoid procreation entails the right to an abortion, it is necessary to settle it. Failure to resolve the issue of fetal personhood is the main reason the justification behind Roe fails. Especially given the repeated attempts to pass personhood amendments, the right to an abortion should not be so heavily dependent on denying fetal personhood.
If voters who hold fast to the moral belief that all fetuses are persons were successful in codifying that moral belief into law by passing a personhood amendment, litigators could quite fairly challenge the logic of Roe by asserting that the right to avoid procreation cannot justify a right to an abortion any more than it can justify a right to infanticide. Christopher Kaczor, who argues for fetal personhood, writes, “one cannot exercise the right not to remain a social parent at the expense of one’s progeny’s well-being; . . . the right not to be a social mother does not allow one to endanger or neglect the life of one’s progeny.” And from a genetic parenthood perspective, he writes, “the right not to remain a genetic mother does not include the right to kill one’s progeny. . . . There simply is no such thing as the right not to remain a genetic mother.” 23
Because the justices who decided Roe did not give adequate attention to the question of fetal personhood, it cannot be determined whether abortions are a legitimate exercise of procreative liberty. When he delivered the opinion of the Supreme Court, even Justice Blackmun conceded that if fetal “personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the [Fourteenth] Amendment.” 24 More telling is the response of attorney Sarah Weddington, who argued the winning side of Roe , to a question from Justice Potter Stewart: “If it were established that an unborn fetus is a person, with the protection of the Fourteenth Amendment, you would have almost an impossible case here, would you not?” She admitted that she “would have a very difficult case.” Advocates of personhood amendments have latched onto this and have maintained that passage of such an amendment would be a “silver bullet” to eliminate Roe v. Wade . 25 A successful argument in favor of abortion rights must therefore be made on alternative grounds.
THE MORAL ARGUMENT IN FAVOR OF ABORTION RIGHTS
In 1914, the New York Court of Appeals ruled that a physician cannot operate on a patient without her consent, even if the surgery is meant to benefit the patient. Judge Benjamin Cardozo, who issued the ruling, wrote that “every human being of adult years and sound mind has a right to determine what shall be done with his own body.” 26 This sentiment has been echoed repeatedly in subsequent legal cases.
In 1978, Robert McFall was diagnosed with aplastic anemia and needed a bone marrow transplant in order to survive. After a lengthy search, it was determined that his cousin, David Shimp, possessed matching bone marrow, but he refused to undergo the extraction procedure. McFall sued Shimp in the hopes that the court would compel him to submit to the extraction. The main ethical and legal question at stake was, “In order to save the life of one of its members by the only means available, may society infringe upon one’s absolute right to his ‘bodily security’?” The judges on the Tenth Pennsylvania District Court answered the question in the negative:
The common law has consistently held to a rule which provides that one human being is under no legal compulsion to give aid or to take action to save that human being or to rescue. . . . The rule is founded upon the very essence of our free society. . . . Our society, contrary to many others, has as its first principle, the respect for the individual, and that society and government exist to protect the individual from being invaded and hurt by another. . . . For our law to compel the defendant to submit to an intrusion of his body would change the very concept and principle upon which our society is founded. To do so would defeat the sanctity of the individual, and would impose a rule which would know no limits, and one could not imagine where the line would be drawn. . . . For a society, which respects the rights of one individual, to sink its teeth into the jugular vein or neck of one of its members and suck from it sustenance for another member, is revolting to our hard-wrought concept of jurisprudence. 27
The judges’ conclusion was not that McFall lacked a right to life or that his life was otherwise worthless. Rather the conclusion was that no person’s right to life includes the right to forcibly use another’s body for sustenance.
Judith Jarvis Thomson argues in favor of a similar thesis in the article “A Defense of Abortion” using her now famous violinist example. Imagine, she writes, that an ailing violinist needs to stay hooked up to your kidneys for a certain amount of time in order to survive a rare affliction. If you choose to unplug yourself, the violinist will surely die. According to Thomson, if you have not consented to this dependency relation, you are free to terminate it, even if doing so results in the violinist’s death. Thomson never denies the violinist’s right to life; rather, she questions what follows from such a right. It is not the case, she argues, that the violinist’s right to life necessitates that another person has an obligation to provide him with whatever he needs to survive. Analogously, even if the human fetus were considered a person from conception, it would not follow from this alone that another person, particularly a pregnant woman, would have an obligation to provide the fetus with whatever it needs to survive:
I am not arguing that people do not have a right to life. . . . I am arguing only that a right to life does not guarantee having either a right to be given the use of or a right to be allowed continued use of another person’s body—even if one needs it for life itself. So the right to life will not serve the opponents of abortion in the very simple and clear way in which they seem to have thought it would. 28
Thomson’s argument has been highly criticized (some of these criticisms will be addressed in the next chapter). Many have argued that for various reasons the violinist example is not sufficiently similar to typical cases of pregnancy—those that result from consensual sex. Nevertheless, her conclusion concerning how to balance competing moral rights in this regard is echoed in the court’s decision in McFall v. Shimp , which illustrates that her argument has important legal implications.
If we grant fetal personhood, two rights seem to be in conflict with each other when it comes to abortion—the same two rights that appear to be in conflict in McFall v. Shimp : the right to life (the right to not be unjustly killed) and the right to bodily autonomy (the right to not have one’s body intruded upon). The Pennsylvania court decided that there is no such conflict: although McFall indisputably possessed a right to life, this right did not guarantee him use of Shimp’s bone marrow. The same can be said about cases of unwanted pregnancies. Philosopher David Boonin argues that Thomson’s point “is not that it is sometimes permissible for you to violate the violinist’s right to life, but rather that the violinist’s right to life does not include or entail the right to be provided with the use or the continued use of whatever is needed in order for him to go on living.” 29 If this is correct, in order for anti-choice advocates to successfully make a case against abortion rights, they have to defend two key premises: first, that the fetus is a person with all the moral and legal rights thereof and, second, that the fetus’s right to life includes a right to use another’s body for sustenance, even against her wishes. The adoption of a state personhood amendment is a step toward codifying the first premise into law; the second premise, however, is difficult to defend.
Consider the vast number of people who perish every year around the world from hunger, homelessness, and dehydration. If these individuals have a moral right to whatever they need for survival, then they would have a positive moral right to food, shelter, and clean water. This means that others would possess a moral obligation to provide for these basic needs. If such an obligation exists, then we would say that individuals have a positive right to life, rather than simply a right to life in the negative sense. Negative rights are rights to be left alone; they impose on others a duty of noninterference. Freedom of speech and religion, for example, are negative rights because they impose on others an obligation to not interfere with what we wish to say or with our practice of a particular religion. Positive rights are rights to be provided with something; they impose on others a duty to ensure that those needs are met. A positive right to medical care, for example, would entail that someone, perhaps the government, has an obligation to provide us with that care.
Given this distinction, two questions need to be addressed. First, is the right to life negative or positive in nature? And second, if it is a positive right, does this mean that we are entitled to whatever we would need for our survival? In order to address the first issue, let us take a look at the “prevention principle,” a key concept in Peter Singer’s article “Famine, Affluence, and Morality.” Singer uses the prevention principle to argue that there is a moral obligation to provide the less fortunate with whatever is necessary for basic survival: “If it is in our power to prevent something bad from happening, without thereby sacrificing anything of comparable moral importance, then we ought, morally, to do it.” 30 To illustrate the validity of this principle, Singer asks us to imagine what we would do if we were to encounter a child drowning in a shallow lake, and all we would sacrifice by pulling her out is getting our shoes wet. It seems obvious, he maintains, that we have a moral obligation to rescue the child, especially because doing so requires very little sacrifice. Similarly, Singer argues, affluent individuals possess a moral obligation to forgo purchasing luxuries and instead to give money to help those who lack what is required to meet their basic needs, since this action also leads to saving the lives of others with very little sacrifice.
There has been much criticism of Singer’s position, and of the claim that humans intrinsically possess positive rights. Libertarians, for example, typically believe not that humans are born with positive rights, but that certain positive rights may be established by society through a mutually agreed upon contract. However, assuming that persons do possess some degree of a positive right to life would make the prochoice stance more difficult to defend because it paves the way for arguing that if a fetus is a person it may have a right to be given the only thing it needs for its survival: continued gestation in a woman’s womb. The next question is, Do persons have a right to whatever they need for survival? If so, how do would we define the limits of this right? At least one limitation, I suggest, is rooted in the moral theory of the German philosopher Immanuel Kant: although we may have a right to some of what we need for survival, that right never extends to the point that we can treat another human being as a mere means or a mere instrument. That is, one person’s right to life does not extend to the point where we can violate another’s person.
What does it mean to violate another’s person? Both Article 5 of the European Convention on Human Rights and Article 3 of the Universal Declaration of Human Rights emphasize that “everyone has the right to life, liberty and security of person.” “Security of person” can best be understood as the right of the individual to live in safety; to not have to constantly worry about such things as murder, rape, or assault. Violating another’s person, then, means violating the individual herself. Because of the intimate relationship between the person and her body, preservation of bodily autonomy is a key aspect of respecting the “security of person.” Violating my body is not equivalent to violating my house or violating my car; a violation of my body is a violation of me . As Leslie Cannold puts it, humans “don’t own their bodies . . . they are their bodies.” 31
A pregnant woman isn’t just housing a fetus; a fetus is not merely a tenant in her body. The faulty assumption that it is merely a tenant underlies many criticisms of Thomson’s argument. For example, Jeffrey Reiman argues that one of the reasons Thomson’s argument fails is that there is a prima facie (at first glance) moral obligation to provide care and assistance to vulnerable others. Prima facie obligations are conditional rather than absolute. To say that someone has a prima facie obligation to do x implies that although the obligation holds in general, there may be relevant circumstances in which the obligation to do x would not apply. 32 Suppose you find an infant, Reiman writes, on the front porch of your winter cabin during a storm and you are too snowed in to take the baby elsewhere for care. Reiman argues that you clearly have a moral obligation to take the baby inside the home, and you cannot excuse your decision not to do so by appealing to your property rights. Hence, Reiman continues, Thomson’s argument is flawed because we cannot simply appeal to a right to control our property as justification for abortion. 33 But Reiman misunderstands Thomson’s argument. A fetus does not occupy someone else’s property, it occupies a person. As Margaret Olivia Little writes, pregnancy represents a time of “ extraordinary physical enmeshment with another—a person whose blood is being oxygenated by another’s lungs, a person whose hormonal activity in turn affects another’s brain and metabolism, a person whose growing size enlarges another’s physical boundaries. . . . To be pregnant is to be inhabited . It is to be occupied . It is to be in a state of physical intimacy of a particularly thorough-going nature. 34
Christine Overall relays a similar impression of the phenomenology of pregnancy: “The experience of being ‘with child’ was sufficiently engrossing, disturbing, even overpowering at times, to persuade me that no woman should ever have to go through this experience—an experience that philosopher Caroline Whitbeck has suggested is akin to literally being possessed or taken over by another being—against her will.” 35 Moreover, along with the typical hardships and the changes that happen to a woman’s body during pregnancy, there is always the underlying danger that more severe physical ailments will occur. Little mentions the pregnancy-related psychosis some women experience and tells the story of her sister, “whose first-trimester ‘nausea’—actually gut-wrenching dry heaves every 20 minutes and three hospitalizations—was the equal of many an experience of chemotherapy.” 36 My own niece suffered from hyperemesis gravidarum (extreme and persistent nausea and vomiting) during both of her pregnancies, the second case being so debilitating that she endured many hospital stays during her first two trimesters. A colleague of mine permanently lost feeling in her right leg after a difficult labor and delivery following an uneventful pregnancy. Nevertheless, many women endure these hardships because they want the fetus to live within them and choose to be intimately enmeshed with their future child. Indeed, it is precisely the extraordinary level of physical and mental intimacy that comes with pregnancy that contributes to its power and beauty for women who have freely chosen it.
Sexual intercourse, Little mentions, can be beautiful and joyous when it is consensual, and terrifying and harmful when it is not. 37 The very same thing that makes sex beautiful can make it horrible: a willful conjoining of one’s body with another in love makes it wonderful, a forced conjoining of one’s body with another renders it traumatic. Pregnancy is no different in this regard; the physical enmeshment with the future child, which makes pregnancy so beautiful for women undergoing it consensually, can make it traumatic for a woman undergoing it forcefully.
Slavenka Drakulic’s S.: A Novel about the Balkans is a fictionalized account of crimes committed against women during the Bosnian war. In the beginning pages, Drakulic describes the emotions and thoughts of the title character, who is chosen to be an inmate in a “woman’s camp”: a brothel to service the soldiers of the war. She becomes pregnant after a particularly horrendous rape, just one of many that she experiences, and the reader peers into the mind of a woman who must carry such a pregnancy to term:
To her, this is not a child, it is a burden she is carrying in her stomach. Because she has been forced to do so. It is something that is stealing her cells and reproducing, feeding on her blood, on the air that she breathes. . . . She can feel it move and that disturbs her. The thrashing of a trapped animal striving for release keeps her awake. In the middle of the night she is alone with this unfamiliar hungry being residing in her womb. 38
There are, of course, relevant disanalogies. The brutal rape adds a traumatic dimension to the experience of compelled pregnancy that does not exist for women who engage in voluntary intercourse. Moreover, the fetus is not a violent aggressor, whereas a rapist is. 39 Nevertheless, the book gives readers an idea of what it must be like to undergo a pregnancy against one’s will.
To further support the point that forced pregnancy can be a traumatic instance of bodily intrusion, consider the opposite possibility: forced abortion. The following story is of one such instance in China, in adherence to the one-child policy (which restricts procreation to one child per urban couple, with some exceptions):
Liang Yage and his wife Wei Linrong had one child and believed that—like many other couples—they could pay a fine and keep their second baby. Wei was 7 months pregnant when 10 family planning officials visited her at home on April 16. Liang describes how they told her that she would have to have an abortion, “You don’t have any more room for maneuver,” he says they told her. “If you don’t go [to the hospital], we’ll carry you.” The couple was then driven to Youjiang district maternity hospital in Baise city. “I was scared,” Wei told NPR. “The hospital was full of women who’d been brought in forcibly. There wasn’t a single spare bed. The family planning people said forced abortions and forced sterilizations were both being carried out. We saw women being pulled in one by one.” The couple was given a consent agreement to sign. When Liang refused, family planning officials signed it for him. He and his wife are devout Christians—he is a pastor—and they don’t agree with abortion. The officials gave Wei three injections in the lower abdomen. Contractions started the next afternoon, and continued for almost 16 hours. Her child was stillborn. 40
One of the causes for revulsion in this story, aside from the raw suffering that parents who very much want their baby endure when forced to abort, is the blatant and horrifying violation of the parents’ autonomy and, even more, the violation of the women when they are forcibly held down and an abortion is imposed upon them. Not all coerced abortions are as blatant, but they are disturbing nonetheless; there are women who are manipulated into obtaining an abortion by their partners or even their parents, often under threat of violence. 41 The violation of a woman’s bodily integrity and her autonomous choice when it comes to her reproductive life is equally egregious in all its forms.
To argue in favor of a more active role for men in the abortion decision, Steven Levy presents a dialogue between two people who appear to be a woman and her physician, in which the patient tells the doctor about wanting an abortion, contrary to the spouse’s wishes. The surprise twist comes at the end, where it is revealed that the dialogue has actually taken place between a man and his physician. They decide that the woman will be given the abortion regardless of whether she wants it, and that her husband will forcibly bring her in to ensure that she gets it. Levy writes: Why does the situation appear different when we discover that Shelly is the father and Michael is the mother than when we think it is the other way around? If the same claims can be made on both sides, then why is the father’s consent not usually deemed necessary for an abortion?” 42 What is horrifying about the role switch is not just that one partner will be obtaining an abortion against the will of the other, but rather that a woman will be forcibly brought in and given an abortion against her will. This violation of someone’s body, of her person , is absent when a woman has an abortion without paternal consent.
All of these considerations support Thomson’s argument. Violation of a person’s bodily integrity and security is a grave thing, so a compelling argument is required to justify it. Forcing women to undergo the physical enmeshment and intimacy of pregnancy is one of the most grievous violations of the second version of Immanuel Kant’s categorical imperative that in all our dealings with each other, it is never morally acceptable to treat persons as mere means to some end. That is, we must not instrumentalize people or use them as tools for our personal goals and desires. 43 Once a woman has made a rational, autonomous decision to not gestate, compelling her to do so ignores her decision in this regard, treats her in a way to which she has not consented, and forces her into “intimacy of deep proportions.” 44 Constitutional scholar Donald Regan puts this excellently when he writes:
Pregnancy is painful. It involves a significant risk of death. It represents an intrusion into the most intimate parts of the woman’s body. . . . The woman who is compelled to carry a fetus she does not want is in effect being used as an incubator. She is being used as a physical object. . . . Laws forbidding abortion involve the requisitioning of the woman’s body by the state. . . . [The woman is] relegated to the status of a broodmare (for this is how the pregnant woman may well view the matter) by society at large. 45
Taking seriously the intimate and potentially intrusive nature of gestation is important in responses to anti-choice advocates who tout adoption as the obvious solution to cases of unplanned pregnancy. I have deep respect for birth parents who make the extremely difficult decision to place a child for adoption, as well as for the parents who adopt the infant. I have close friends who have surrendered a baby for adoption and others who have given a baby a home, and all have taught me that adoption can indeed be a wonderful and beautiful option. Nevertheless, a woman must decide of her own accord whether she wishes to use her body in this manner to sustain the life of another individual. Adoption can be a wonderful and noble choice, but it remains a choice nevertheless.
In spite of the shortage of organs available for transplant, society should not compel persons to donate organs to save the lives of others. Indeed, persons’ sovereignty over their body is heeded even after death: organs are removed for donation only if the patient consented to it before death or if the next-of-kin consents in the absence of knowledge about the patient’s wishes—even if this means that people die as a result of organ shortage. There is no denying that sick individuals in dire need of organ donation are persons, and there is no lack of sympathy for their situation. But as a society, we recognize that we have the moral imperative to treat all persons as ends in themselves and that all persons are intrinsically worthy of respect. And we recognize that this imperative applies even if respecting it in one person entails the death of another.
In the interest of meeting anti-choice advocates on their own ground, as Thomson also means to do, I will grant that the human fetus is a person and is entitled to all the same rights granted to persons. Moreover, I will grant that the right to life is positive in nature, so all persons have a right to be given some of what they need to ensure their survival. But even if this is so, fetal personhood is insufficient for concluding that a woman has a moral obligation to grant a fetus continued use of her body. Anti-choice advocates would need to argue that unlike any other person a human fetus has a moral right to use another person for sustenance even against the latter’s wishes. Anyone who defends this premise does not believe that fetuses have the same rights as all other persons, but rather that they have additional rights that no other persons possess.
FROM MORAL TO LEGAL CONSIDERATIONS
People’s moral stance on abortion is inevitably reflected in their practical decisions—about how to vote, for example, or what political activism to undertake—and this in turn affects the lives of real people, so it is necessary to explore the practical and legal implications of Thomson’s argument. The legal right to bodily integrity has been repeatedly affirmed by several courts, including the U.S. Supreme Court.
In the 1891 case Union Pacific Railway Company v. Botsford , Clara Botsford sued the Union Pacific Railway Company for negligence after an upper berth in a sleeping car fell on her head, causing damage to the membranes of her brain and spinal cord. The lawyers for Union Pacific Railway argued that they had a right to force her to be examined by their own lawyers—without her permission—so they could determine the severity of her injuries. The United States Supreme Court disagreed, ruling: “No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” 46
In the 1996 case Stamford Hospital v. Vega , the Supreme Court of Connecticut ruled that a patient, in this case a Jehovah’s Witness, has a right to refuse a blood transfusion even if one is necessary to save his own life, and that a hospital’s interest in preserving the lives of its patients is not sufficient to override the patient’s right to bodily integrity in this or any similar case. 47 The right to self-determination regarding medical treatment, in particular the right to refuse life-sustaining treatment, is well established. According to philosopher Bonnie Steinbock, the reason such a right is almost categorically respected is that “the purpose of the right to refuse medical treatment” is to protect persons “from the unwanted interference of others.” 48
Even in cases where one’s right to bodily integrity is seemingly at odds with another’s right to life, courts have ruled that preservation of the latter right cannot entail violating the former right. In the 1994 case Baby Boy Doe v. Mother Doe , the Illinois Appellate Court upheld a woman’s right to refuse to undergo a caesarian section, even if that refusal goes against the attending physician’s advice that normal vaginal delivery may be detrimental to the life and health of her baby. 49 But the clearest instance of a person’s right to bodily integrity being upheld over another person’s right to life is the previously discussed bone marrow transplant case, McFall v. Shimp .
Donald Regan presents what is tantamount to a legal version of Thomson’s argument. Pregnancy, he argues, is an instance of Good Samaritanism: requiring a woman to gestate requires her to act as a Good Samaritan. Compelling a woman to undergo pregnancy would violate the Constitution’s equal protection clause because it would force her to sacrifice her body, and possibly aspects of her health, in order to sustain another person—something the law does not ask of any man or nonpregnant woman. The law repeatedly sides with the preservation of bodily autonomy or bodily integrity because “for better or worse, our tradition assigns special disvalue to the imposition of pain or extreme physical discomfort and to actual invasions of the body.” 50 To force a woman to gestate a fetus would be to ignore, in reference to her, all the arguments that were used in defense of Shimp’s right to his bodily integrity:
It is a deeply rooted principle of American law that an individual is ordinarily not required to volunteer aid to another individual who is in danger or in need of assistance. In brief, our law does not require people to be Good Samaritans. . . . If we require a pregnant woman to carry the fetus to term and deliver it—if we forbid abortion, in other words—we are compelling her to be a Good Samaritan. . . . The equal protection clause forbids imposition of these burdens on pregnant women. 51
Regan does acknowledge that for some women, pregnancy and childbirth can be a “transcendent experience,” but, like Little, he emphasizes that this is the case for women who voluntarily choose pregnancy. The real question is “how burdensome it is for a woman who does not want a child. . . . Anyone who attempts simply to deny that there is an intrinsic horror to unwanted pregnancy lacks either imagination or compassion.” 52
Once parents decide to take the child home, they have assumed the responsibilities of caring for the child’s physical and emotional needs. Nevertheless, no parent can be obligated to submit to unwanted bodily intrusion if that is what is necessary to preserve their child’s life (though many parents, of course, would volunteer to do so). Regan notes: “It would be interesting to see a case in which the issue was presented of whether a parent has a duty to donate a needed organ to his or her child. My guess is that no duty would be found. . . . I would be surprised if any American court ordered even a parent-to-child bone marrow transplant, an imposition which (not to forget our ultimate purposes) seems more defensible than forbidding abortion in every respect.” 53 The U.S. Supreme Court has not, as of yet, been asked to adjudicate such a case; however, there have been real examples of genetic parents who have been asked (not compelled) to donate an organ to help save their dying child.
One example involves a U.K. man, Michael Shergold, who discovered when Hampshire Social Services contacted him that he had fathered a son in a previous relationship, and that the woman had released the baby for adoption without his knowledge. Social Services had called to ask if he would be willing to donate a nonvital organ to five-year-old Andrew, who would die without it. After finding out about his son’s existence, Shergold attempted to adopt him, arguing that his legal rights as a father were never properly terminated. His application was denied, and he is unable to have any contact whatsoever with his son. Shergold commented as follows:
To track me down, tell me I have a son I knew nothing about, throw my life into chaos then tell me I will never be able to see him is nothing short of disgraceful. . . . To know my son has been adopted against my consent by strangers rather than his blood family, where he would have had a loving home, has been bad enough. But to know that, if I don’t donate an organ, my son might not live long enough to know me has put me in the worst situation of all. 54
Like a pregnant woman, Shergold is causally responsible for the creation of a child, given his participation in voluntary sexual intercourse. Like a pregnant woman who does not wish to continue with the pregnancy, Shergold has only a biological connection to his child. (He describes a decision in favor of organ donation as giving to “someone who I don’t really know exists.”) Finally, like a pregnant woman, Shergold would have to allow his body to be used in a very intimate and intrusive manner in order to keep his biological child alive. However, unlike what should be required of a pregnant woman in the eyes of anti-choice advocates, Shergold was asked to donate his organ. Those who desire the eradication of abortion rights wish to force pregnant women to make a similar if not more intimate sacrifice. 55
Unlike the U.S. Supreme Court, the Supreme Court of Canada defended its decision to legalize abortion on the basis of the preservation of bodily integrity. In the 1988 decision R v. Morgentaler , the justices decided that “forcing a woman, by threat of criminal sanction, to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman’s body and thus an infringement of security of the person.” 56
Echoing Regan and the Canadian Supreme Court, constitutional scholar Robin West bases her hypothetical rewrite of Roe on similar principles. West first presents an argument for the unconstitutionality of forcing raped women to gestate. She then considers whether the same arguments apply to women who become “pregnant as a result of consensual intercourse” because they have “in some sense created the fetus, or at least contributed to the risk that the fetus would come into being.” 57 A parent who has agreed to take on the responsibility of caring for a child has no legal obligation to:
sacrifice any part of his physical body to do so. A parent is not required to donate even a milliliter of blood, much less a kidney, or bone marrow, even to save the life of his born child, and even though the parents of the born child quite willfully and consensually brought the child into the world . . . Furthermore, should the born child—perhaps a grown child—attempt to extract the blood or kidney from the parent by force, without the consent of the unwilling parent, perhaps by drugging him and strapping him to a gurney, the state would step in when called upon to help the parent ward off the child’s attack. The child, not the parent, would be charged with a crime. 58
In West’s argument, neither the moral nor the legal personhood of the child is contested. What is contested is whether the child’s right to life, whether positive or negative in nature, entails that another person can be forced to use her body to sustain the child, even if this other person is the child’s parent. Like Regan, West applies Thomson’s argument to the legal realm (she explicitly acknowledges her debt to Thomson), and she too argues that forbidding abortion would violate women’s right to equal protection under the law because then it would be the case that “ pregnant women alone must, by law, give their bodies over to the survival needs of others.” Criminalizing abortion reduces “the pregnant woman’s body to the status of chattel. And because this is a difference in treatment that cuts so deeply, I believe it is a difference that is unconstitutional under the Fourteenth Amendment.” 59
CAN THERE BE LIMITS?
Although abortions in the late second trimester or in the third trimester are comparatively rare, they do occur—often for reasons relating to maternal or fetal health. Dana Weinstein, for example, aborted a very much wanted daughter at twenty-nine weeks gestational age because her fetus was diagnosed with polymicrogyria, a brain abnormality that can cause a variety of severe health problems, including uncontrollable seizures and drastic developmental delays. When reflecting on her decision, Weinstein emphasizes that “we wanted her and loved her. . . . She was so sick that the decision was almost made for us.” 60 In some cases, women are unsure as to the gestational age of their pregnancies due to abnormal menstrual cycles, or opt to abort after their life circumstances drastically change—in another case study, a woman aborted a planned pregnancy at twenty-three weeks gestational age after her husband left her for another woman. 61
Admittedly, the idea of aborting a fairly developed late-second-trimester or third-trimester fetus is distasteful and morally problematic. The survival of preterm infants as young as twenty-five weeks gestational age has humanized fetuses in such a way that it is difficult to regard a late-second-trimester or third-trimester fetus as anything but a small infant. It is because later-term abortions are so disturbing that anti-choice advocates typically display pictures of aborted later-term fetuses to support their position. In response, prochoice advocates repeatedly remind us that most abortions (61 percent) take place within the first nine weeks of pregnancy, with 88 percent taking place within the first trimester, and only 1.5 percent after twenty weeks gestational age. 62
The fact that anti-choice advocates insist on focusing on rare later-term abortions while prochoice advocates insist on emphasizing on the much higher proportion of abortions that take place in early pregnancy illustrates that both sides recognize the undesirability of later-term abortions. This is reflected in the American public’s views on the issue. A 2003 Gallup poll reveals that 66 percent of Americans believe abortion should be legal in the first trimester, but that 68 percent believe it should be illegal in the second trimester, with the numbers rising to 84 percent believing it should be illegal in the third trimester. 63 Consequently, any argument in favor of abortion rights that stands a chance at garnering public favor must concede to some limitations on nontherapeutic abortions (abortions performed for reasons unrelated to fetal or maternal health) during the later stages of pregnancy.
Toward the end of her essay, Thomson hints at a possible way to defend a restriction on abortion after the fetus is viable:
While I am arguing for the permissibility of abortion in some cases, I am not arguing for the right to secure the death of the unborn child. It is easy to confuse these two things in that up to a certain point in the life of the fetus it is not able to survive outside the mother’s body; hence removing it from her body guarantees its death. But they are importantly different. I have argued that you are not morally required to spend nine months in bed, sustaining the life of that violinist, but to say this is by no means to say that if, when you unplug yourself, there is a miracle and he survives, you then have a right to turn round and slit his throat. You may detach yourself even if this costs him his life; you have no right to be guaranteed his death, by some other means, if unplugging yourself does not kill him. . . . The desire for the child’s death is not one which anybody may gratify, should it turn out to be possible to detach the child alive. 64
This is a vital component of Thomson’s argument because it clarifies how she conceives the right to an abortion: it is not the right to kill the fetus, but rather a right to evacuate it if the woman no longer wishes to provide her body for sustenance. This interpretation of the abortion right is the correct one to advance if one wants to defend it as a subcategory of the broader right to bodily autonomy. Suppose McFall had found an alternative source of bone marrow that would have helped him survive; certainly Shimp had no grounds to prevent him from obtaining that bone marrow, and he certainly had no right to demand McFall’s death if McFall could have survived without his aid. The same applies to pregnancy. In order to maintain that the right to an abortion is parallel with other people’s right to refuse to use their bodies to aid others, the same restrictions that fall on those people must fall on pregnant women.
This can be read as an argument in support of the Supreme Court’s decision to allow states to prohibit abortion after viability. Currently, forty-one states forbid abortion sometime late in pregnancy; twenty-one ban it at fetal viability, three after the end of the second trimester, and seventeen at a specific number of weeks gestation. 65 Before viability, there is no way for a woman to exercise her right to be free from unwanted bodily intrusion in a manner that could preserve the fetus’s life. The only relevant consideration, then, is to ensure that whatever procedure is used is best for the woman’s health.
After the fetus is viable, however, it may be possible to remove it from the woman’s body without killing it. 66 If it is possible to remove the fetus while preserving its life, Thomson maintains, we should, prima facie, take that course of action instead of one that guarantees the fetus’s death. 67 This, of course, must be tempered with considerations of maternal health: if a particular method of abortion is more likely to ensure fetal survival, but also more likely to put the woman’s life or health in serious jeopardy, then an argument can be made that preserving her health trumps preserving the fetus’s life.

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