By Nancy S. Jecker
Controversy over abortion reached a fever pitch on May 2, 2022, when the leaked draft of a U.S. Supreme Court majority opinion was published by Politico. If the draft’s key points are reflected in the final ruling, this would strike down Roe v. Wade, a landmark decision that nearly 50 years ago established the right to choose an abortion.
Current constitutional law grants a right to have an abortion until a fetus becomes viable – in other words, until there is a reasonable probability it could survive outside the womb with care. Today, this typically occurs between the 22nd and 24th weeks of pregnancy.
The ruling in Roe v. Wade was grounded on the idea that the U.S. Constitution protects privacy, stemming from the 14th Amendment. However, the draft majority opinion, written by Justice Samuel Alito, argues Roe v. Wade should be overturned because the Constitution makes no mention of abortion.
While a final ruling is not expected before June 2022, the decision will not put to rest controversy over abortion. Why does the legalization of abortion continue to be hotly contested, nearly a half century after Roe v. Wade? This question is of great interest to me, as a philosopher and bioethicist, since I study philosophical problems that lie just beneath the surface of contemporary controversies like abortion.
Defining personhood
One underlying ethical concern is, “What is a person?” How people answer this question shapes how they think about a developing human being. When philosophers talk about “personhood,” they are referring to something or someone having exceptionally high moral status, often described as having a right to life, an inherent dignity, or mattering for one’s own sake. Non-persons may have lesser rights or value, but lack the full moral value associated with persons.
To be a person means having strong moral claims against others. For instance, persons have a claim to be treated fairly and a claim not to be interfered with. A healthy adult human being is often considered the clearest example of a person. Yet, most philosophers distinguish being a person from being human, pointing out that no one disputes the fetus’s species, but many disagree about the fetus’s personhood.
In current law, fetal viability is often used to mark the beginning of personhood. However, viability varies based on people’s access to intensive medical care. It also changes as medicine and technology advance.
Some state laws restricting abortion identify the presence of a “fetal heartbeat” as morally significant and use this as a basis for personhood. However, many living things have beating hearts, and they are not all considered persons. And as physicians point out, though they may use the term “fetal heartbeat” in conversations with patients, the fetus does not yet have a functioning heart that generates sound during early development.
Defining the limits of personhood is especially dicey due to its far-reaching consequences. Personhood carries implications for how we treat animals, ecosystems and anencephalic infants, who are born with their cerebral cortex and large parts of their skull missing. It also shapes the rights of people who will be born in the future, people with disabilities and individuals in a persistent vegetative state. Debates over personhood have recently extended to robots.
Personhood is also important for issues at the end of life, such as disputes over defining death. Physicians have disagreed with families over whether to declare a patient dead or continue to offer medical interventions. Philosophers have debated whether a person’s death occurs as soon as “higher” brain activity ceases – activity associated consciousness and cognition – or only after all brain activity ends.
When personhood begins
In short, there are plenty of reasons to figure out what personhood requires. Doing so demands wrestling with at least three common opposing views.
The first holds that fetuses qualify as persons from the moment of conception. Supporters say that from conception on, the developing fetus has “a future like ours,” and abortion takes that future away. A variation on this theme is that at conception, a fetus has the full genetic code and therefore the potential to become a person, and this potential qualifies the fetus as a person.
AP Photo/Christina Myers
A second view regards personhood as arising at some point after conception and prior to birth. Some people reason that a human being’s moral status is not all-or-nothing, but, like human development, a matter of degree. Others say that what matters is consciousness and other cognitive capacities, thought to develop late in the second trimester.
Finally, a third view maintains that personhood begins at birth or shortly thereafter, because this is when an infant first acquires a sense of themselves and an interest in their own continued existence. Another source of support for the third view is Enlightenment philosopher Immanuel Kant’s claim that what makes human beings morally special is their rationality and capacity to be autonomous.
Conflicts between persons
Which view about personhood is right? If a society can’t agree about personhood, another strategy would be to imagine that one’s opponent’s view is right, and consider the implications.
Suppose, for example, that fetuses are persons. Since pregnant people are too, how should conflicts between them be settled? Suppose a pregnant person’s life were in jeopardy: whose right to life prevails? Some hold that under these conditions, abortion is justified by appealing to self-defense, but others say killing in self-defense is not justified if the threat is “innocent,” without intention of doing harm.
Even when a pregnant person’s life is not in danger, some philosophers argue that a fetus’s right to life would not automatically override a pregnant person’s right to live their life as they wish. In a famous article, ethicist Judith Jarvis Thomson used the hypothetical example of someone extremely ill, who could only be saved by actor Henry Fonda touching their brow. Must Fonda attend to them? She argued no: a right to life is not usually understood as a claim to whatever one needs to stay alive. Instead, it requires not having one’s life unjustly ended.
When weighing rights, it is important to consider the toll exacted when people wishing to terminate a pregnancy are prevented from doing so. A decade-long study showed people in this situation suffered adverse health effects; were less likely to have money for basic living expenses like food, housing and transportation; and were more likely to remain with violent partners. Since the risk of dying from childbirth is much greater than the risk of dying from legal abortion, a ban on abortion is projected to increase maternal mortality.
The constitutional right to abortion will likely soon be settled. If the Supreme Court strikes down Roe v. Wade, this will raise yet more ethical questions – about fairness, for example, considering, that people living in poverty and members of minority groups would be among those most affected, and that a majority of Americans support abortion rights.
Only by shifting the conversation from politics and law to ethics will Americans start to reckon with what truly matters in abortion debates.
Nancy S. Jecker is Professor of Bioethics and Humanities at the School of Medicine, University of Washington.
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Kyndra Mulder says
Science has dispelled the argument that the unborn child is lump of tissue. We now know that an unborn child is human life. You may no longer argue the foregoing. So, now the argument is; whether that child is a human being? This is a ludicrous argument. If the unborn child is human life. the unborn children is a human being. This is called logic.
The truth is; the defense of abortion has become: I have the right right to kill a human being if it is inconvenient to me for that human being to live. That is the same mentality of Satan: I want to be God.
Pierre Tristam says
An unborn child at 8 months of gestation is not the same thing as a lump of tissue in the earlier parts of a pregnancy, and lumping the two together is inaccurate scientifically and legally. You are making a theological argument, which has no place in law, politics or science.
Kyndra Mulder says
Interesting. Do you have any reliable source for your information? Call it a theological argument if you choose but science is actually on my side. Do your research before you state your opinion as if it is fact.
Pierre Tristam says
Reliable information that there is a difference between a zygote and an 8-month fetus? That’s not even theology anymore. It’s baiting. I’m not interested.
Sherry says
Body autonomy is a critical component to the right to privacy which is protected by our constitution. . . as decided in Griswold vs Connecticut, Mc Fall vs Shimp (1978) and of course Roe vs Wade.
Consider a scenario where you the only person on earth for a bone marrow match for a child with sever Aplastic anemia, and that child will most certainly die without “your” particular bone marrow. If you decide that you do not want to donate your bone marrow to save that child . . . for whatever reason. . . the government cannot demand the use of your body for anything that you do not consent to. It doesn’t matter how flimsy your objection, or if the child is a genius or a saint you cannot be compelled to donate any part of your sacred body. This right is even extended to a person’s body after they die. . . if they did not voluntarily legally commit to donate their organs those organs cannot be legally harvested no matter how many lives could be saved. That is the LAW!
The use of a woman’s uterus to save a life should be no different than the use of her bone marrow to save a life. Therefore it should be a woman’s choice to carry out any pregnancy. Supporting that precedent is what being pro-choice means.
DaleL says
Invoking “Satan” and “God” is a religious argument. Science = scientific method, not the results.
Biologically, a fertilized egg consists of the blueprints, so to speak, of a potential person and the biological mechanism to produce a person in conjunction with a suitable environment (womb). The entire process is prone to failure and most fertilized eggs fail for various reasons to ever be born as a person. In most cases the failure occurs before a woman even knows she was pregnant.
To consider something that could be as the same as something which might in the future be, is irrational thinking. It borders on insanity. There is an old saying which applies, “Don’t count your chickens before they hatch.”
DaleL says
Correction:
To consider something that could be as the same as something which actually exists, is irrational thinking.
The dude says
“I have the right right to kill a human being if it is inconvenient to me for that human being to live. ”
Wait… are we talking about the stand your ground laws, white nationalist immigration policies, or GOP positions on childhood hunger here?
Jimbo99 says
Just me, but the moment a consensual conception occurs and that’s something that should not be interfered with. That’s when a life was created. Are there or should there be exceptions ? Rape or incest perhaps is certainly on the table for discussion, that’s a criminal act resulting in an unwanted pregnancy. Then there’s the life threatening conception & development that potentially results in the death of the mother. I don’t know what percentage of conceptions happen as “accidental” or just outright mistakes. Those folks come off as avoiding accountability & responsibility.
I find it amusing that the “experts” have differing opinions. I think the question needs to be asked directly to that panel of experts, in their specific case of their existence to this point in time of their careers & lives,
1. Do they believe they became a person, human being or whatever they identify as a life form at conception ?
2. Should anyone have had a “right” to have ended their opportunity to live and become whatever they wanted to chose to become ?
One would think they would fight for life instead of fabricating reasons why destiny/fate shouldn’t be allowed to play out without an intervention ?
This isn’t like the difference between choosing to let an egg become fried or scrambled on a plate at breakfast vs becoming a local grocery store roaster to feed the family with. If one defends the right of any child, why not at conception. Because conception is headed towards a birth, headed toward a childhood and eventual adulthood.
DaleL says
I appreciated this thoughtful article by Dr. Jecker. In the article she writes: “Even when a pregnant person’s life is not in danger, some philosophers argue that a fetus’s right to life would not automatically override a pregnant person’s right to live their life as they wish.”
Roe v. Wade was decided based on a presumed right to privacy based on a reading of the 14th Amendment. However, I think that the 13th Amendment would apply to the contention that a fetus’s rights do not necessarily override a pregnant woman’s right to freedom. “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States,…”
Forcing a woman, against her will, to carry a fetus for months to birth seems to me to violate the 13th Amendment unless pregnancy itself is made a crime.
As to a fertilized egg being a person, that is rather like considering an acorn to be an oak tree. That which can be, is not the same as that which is.