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Underdefined Terms in the Abortion Debate

photograph of pro-life protest signs in front of Supreme Court

With the Supreme Court’s ruling in Dobbs v. Women’s Health, debates about the regulation of abortion will likely become an even more contentious issue in the coming days – a sentence which would have seemed absurd even just a few years ago. State legislatures may now attempt to outright ban abortion, which would likely lead to highly publicized, intense debate on the issue.

My purpose in this and the subsequent article is not to advance a view on abortion or the regulatory limits the state ought to place on it. Instead, my goal is to consider some concepts central to the abortion debate and demonstrate that they are used sloppily in public debates about abortion.

The hope is that, by illuminating these concepts, we may perhaps gain some clarity into why it feels like this debate has made little to no progress in the nearly 50 years since Roe v. Wade.

Indeed, polling suggests that for nearly thirty years a slight majority of Americans have consistently felt abortion ought to be legal in most cases, while those who think abortion ought to usually be illegal make up somewhere in the high thirties to low forties of participants polled.

Before beginning, it may be worthwhile to put my biases on the table. I think that a right to access abortion is implied by a general right to bodily autonomy. However, I am not a legal scholar and cannot discuss in depth what legal rights substantive due process guarantees, or whether we even ought to adopt that standard.

Nonetheless, I find the reasoning in the majority’s opinion deeply troubling. The opinion, authored by Justice Samuel Alito, argues that abortion rights are not explicitly guaranteed by the Constitution. Further, the majority state that a right to abortion it is not “deeply rooted in this Nation’s history and tradition” as the procedure was illegal in most states until the “late 20th century.” However, plenty of other things seem obviously inappropriate for the state to regulate yet fail to pass these criteria; a right to marriage is not named in the Constitution, and interracial marriage was illegal in most states until the mid-20th century, with 16 hold-out states until Loving v. Virginia, a case decided just six years before Roe. Although it is worth noting that the majority opinion attempts to differentiate abortion from other purported rights grounded in the right to privacy, like interracial marriage, same-sex marriage, and access to contraception. (I will discuss more on this point later.)

Through my discussion, I will refer to those who are against the legalization of abortion as “anti-abortion” advocates, while calling those who support the legalization of abortion as arguing for “reproductive choice.” This is to avoid the way in which identifiers like “pro-life” may be normatively loaded.

I begin by focusing directly on some concepts which are the heart of debates about the morality of abortion. My next column focuses more directly on overlooked concepts involved with debates about its legality.

Humans & Persons

Generally speaking, the position of anti-abortion advocates gets its support from a very simple argument:

1. Killing is wrong.
2. Abortion kills a zygote, embryo, or fetus.
Therefore, abortion is wrong.

Line 1, while very intuitive, quickly runs into issues. Namely, not all killings are obviously wrong. For instance, most people see no moral problem with killing an animal to eat it, or exterminating unwanted pests in the home.

So, one might specify line 1 by changing it to 1’) Killing a human is wrong. However, even this may still be questioned. 1’ puts significant pressure on the second premise. A zygote is human in the sense that it has human DNA. But as a bundle of cells, it is no more human than, say, a tumor. Embryos and fetuses begin to resemble humans in their physical shape. So perhaps they might meet the criteria for being human, while a zygote does not.

But being a living being that looks human or has human DNA does not seem to grant “moral status” – having standing such that your interests are given equal moral importance to the interests of others.

Being human seems neither necessary, nor sufficient. Science fiction and fantasy are littered with non-humans who seem to deserve the same moral status as humans; some fans felt aggrieved that Chewbacca did not get a medal at the end of the first Star Wars film.

Further, imagine a hospital in a triage situation. Suppose that a new patient arrives who needs immediate care. Call her patient K. If patient K receives the care she needs, she will make a complete recovery. If not, she will quickly die. However, the only way to free up the resources necessary to treat patient K is to cease treating a different patient. Call her patient M. Patient M has suffered total frontal brain death. Although patient M’s body still performs vital functions like maintaining breath and heartbeat, there is no chance that she will ever regain consciousness or perform higher cognitive functions again.

Should the doctors halt patient M’s treatment to save patient K’s life? Most would think yes.

This is not to say that patient M deserves no consideration. But rather, when patient M’s interests conflict with patient K’s interest, it seems like patient K’s ought to win out. This means that patient K has a higher moral status than patient M.

This example in particular suggests that having full moral status requires more than being a living human being. Namely, it requires having certain psychological capacities – things like the ability to form a self-concept, to think rationally and to develop a plan for your life. This is why beings like Chewbacca deserve the same consideration that we do, despite the fact that they lack human DNA.

While zygotes, embryos, and fetuses are human in the sense that they are members of the human species, they seem to lack these psychological capacities. Thus, they lack what is required for what some call personhood in the moral sense, or moral personhood. Thus, even if their interests deserve some moral consideration, they may not deserve as much consideration as those of a clear moral person – in particular, a pregnant person.

However, it should be noted that some may ground full moral status in things other than possession of certain psychological capacities. For instance, some religiously motivated anti-abortion advocates may claim that a human has full moral status from the moment of conception onward due to the possession of something like a soul. Of course, unless their interlocutors share the belief in a soul, this move may simply bring the discussion to a halt.

“Potential Lives”

So, some anti-abortion advocates might change their rhetoric. They could instead claim that zygotes, embryos, and fetuses have elevated status because of their potential, rather than their current capacities. In criticizing the dissenting opinion, Justice Alito notes that the dissenters do not acknowledge “the States’ interests in protecting fetal life.” Elaborating further on this, he briefly states that comparing the decision in Dobbs to decisions in Griswold, Eisenstadt, Lawrence, and Obergefell relies on a false analogy – abortion “destroys a potential life” but contraception, sodomy, and same-sex marriage do not, claim the majority. (Although it is worth noting that Justice Clarence Thomas, in his concurrence, writes that the court should reconsider its due process precedents, specifically naming Griswold, Lawrence, and Obergefell.)

But this idea of a potential life is quite vague. Eggs in a bird’s nest are potential lives. Unless these are eggs of an endangered species, the state does not seem to have an interest in regulating our conduct towards them. So surely the majority means potential persons – the idea here being that because personhood is of moral significance, then having the potential to be a person must also be morally significant.

However, “potential person” is still too vague. Taken on its face, everything from a fertilized egg onward is a potential person. But it need not stop here. All it takes to begin a process that will eventually result in a person is to have a single sperm cell and a single egg cell. So, these two cells may be potential persons. This would lead to some absurd consequences – if the state has an interest in protecting potential persons, then they would have an interest in banning products like contraceptives or procedures like vasectomies. But surely, at least for now, this is not what the Court suggests.

As a result, we may wish to introduce a more fine-grained distinction about potentiality. Stephen Buckle distinguishes between potentiality in two senses – the potential to produce and the potential to become.

A single sperm and egg cell are potential persons in the sense that they may produce a person; they’re the necessary “raw ingredients” to start a process that eventually can result in a person. However, they themselves do not become a person. Instead, they produce other entities that become a person.

The power to become instead deals with what Buckle calls “distinct individuals which preserve their identity over time.” Thus, even a fertilized egg would not have the power to become a person. According to Buckle, preserving identity over time requires having some kind of unifying structure which makes one a distinct individual.

But the exact nature of this identity preserving unifying structure is an open question. Some might argue that identity is a matter of being the same living organism. Others claim that it is a matter of spatio-temporal continuity; that if we could plot your location over the course of time, the result would be an unbroken 4th dimensional “space-time-worm” where each “slice” is your location at a moment in time. I’ve noted elsewhere that psychological factors play a role in our identity.

Thus, there are multiple candidate answers to the question of what has the power to become a person. If our identity consists in being a human organism, then the power to become a person emerges at the point when the embryo becomes a fetus – after the cells have differentiated, taken on functions, and the overall structure of the organism is set into place. If we are instead space-time-worms, then our identity stabilizes as early as fertilization. But if our identity is a matter of psychology, then we may not develop the power to become persons until much later, perhaps not even until after birth when our experiences start shaping our future attitudes and behaviors.

As a result, the sense in which we call something a “potential life” has great bearing on what policies we should favor. If we mean those things which have the power to produce a person, then what behaviors the state has an interest in regulating would be very far reaching – any time that we are not reproducing as much as possible, we are destroying or at least preventing a potential life. But if we instead mean that a potential life exists only when something has the power to become a person, then we are stuck having to answer the question of what preserves our identity over time before we can answer any questions about whether a fetus has the potential to become a person.

What If a Fetus Were a Person?

POV photograph of blood donor with another patient in blurry background

The recent Supreme Court draft opinion leak indicates that Roe v. Wade will soon be overturned. If this happens, the legality of abortion will no longer be a constitutional affair; it will become a decision for politicians and voters. And both sides of the debate have wasted no time making their cases.

The legal status and the moral status of abortion are, of course, separate issues (some think, for example, that abortion is morally wrong but ought to be legal to reduce the harm associated with illegal, unregulated abortion). But the new political fight over abortion’s legality has also brought the moral debate back into the spotlight.

Moral disagreements about abortion are typically about how we morally conceptualize the fetus.

Pro-life advocates often claim a fetus is a ‘person’ or at least a ‘human being’ or a ‘baby’. On the pro-choice side, it is common to use biological terms such as ‘zygote’, ‘embryo’, and ‘fetus’. To talk of killing a person, a human being, or a baby sounds, at first glance, terrible. Talking of terminating a pregnancy or aborting a fetus, on the other hand, sounds much less morally dubious.

These are not just empty word games; the difference in word choice reflects a deeper moral disagreement – disagreement about the moral status of a fetus: Does it have the same rights as any other person? Or does it merely have the same rights as other clumps of cells?

But I want to sidestep this familiar impasse and instead ask a different question:

What if a fetus were granted the same moral status as an ordinary adult human being? What would the ethics of abortion be then?

The answer might seem very obvious. If a fetus is morally equivalent to an adult human being, it would seem wrong to kill it in just the same way that it would be wrong to kill an adult human. But things are not this simple.

The philosopher Judith Jarvis Thomson imagined the following case:

You wake up in the morning and find yourself back to back in bed with an unconscious violinist. A famous unconscious violinist. He has been found to have a fatal kidney ailment, and the Society of Music Lovers has canvassed all the available medical records and found that you alone have the right blood type to help. They have therefore kidnapped you, and last night the violinist’s circulatory system was plugged into yours, so that your kidneys can be used to extract poisons from his blood as well as your own. [If he is unplugged from you now, he will die; but] in nine months he will have recovered from his ailment, and can safely be unplugged from you.

Is it morally permissible to unplug yourself, even though it will surely cause the death of the violinist?

It would certainly be morally admirable to stay plugged in. But it seems like someone who stayed plugged in for nine months would not merely be doing their moral duty; they would be going beyond their moral duty. It would be like jumping on a grenade to save your comrades: more than anyone could reasonably expect. Moral philosophers call these kinds of actions, that are so morally good that they go beyond moral duty, “supererogatory” acts. Refusing to perform these kinds of morally heroic acts is morally permissible. And refusing to stay plugged in also seems morally permissible. We couldn’t blame someone for refusing the violinist, and walking away to continue their normal lives. It’s your moral right to choose to leave.

This is interesting because we all accept that the violinist has the right to life. “Everybody must refrain from slitting his throat, everybody must refrain from shooting him” writes Thomson, “and everybody must refrain from unplugging you from him.” But the violinist’s right to life does not entitle him to the use of your body. Therefore, his right to life does not make it wrong for you to unplug yourself. “If you do allow him to use [your kidneys],” says Thomson, “it is a kindness on your part, and not something you owe him.”

Likewise, even if we assume that a fetus has the same right to life as an adult human, that alone does not necessarily make it wrong to withdraw the use of your pregnant body, even if it causes the death of the fetus.

It is a powerful argument, but it must be acknowledged that Thomson’s analogy, like all analogies, is imperfect.

Being plugged into a stranger in a hospital bed for nine months is perhaps more burdensome than the average pregnancy. If we only had to stay plugged in for a few minutes to save the violinist’s life, then you might consider it immoral to unplug. So the seriousness of the burden of pregnancy seems like a potentially important consideration. Complicating things further, the burden of pregnancy is highly variable. Perhaps Thomson’s violinist case even suggests that aborting the “easiest” pregnancies is morally impermissible while aborting more difficult ones is permissible.

Another challenge to Thomson’s analogy arises from the fact you have nothing to do with the violinist’s unfortunate situation or your kidnapping. This seems like an important detail. It helps explain why you don’t owe the use of your body to the violinist. But things are less clear than this with many cases of unwanted pregnancy. Unwanted pregnancy is generally the result of consensual sex. Pregnancy is a known risk of sex, even with contraception. Even if a pregnancy is fully unintended, and even if sensible precautions are taken, most pregnant women have made choices which at least raised the chances of a fetus requiring the use of their bodies for nine months. Perhaps this makes them partly responsible. Some think this is enough to make pregnant women more morally entangled with the fate of their fetuses than you are with the fate of the unfortunate violinist.

Others, including Thomson, disagree and think that the sheer bad luck of having an unwanted pregnancy creates no special moral duties toward the fetus. She gives the following analogy:

If the room is stuffy, and I therefore open a window to air it, and a burglar climbs in, it would be absurd to say, “Ah, now he can stay, she’s given him a right to the use of her house – for she is partially responsible for his presence there, having voluntarily done what enabled him to get in, in full knowledge that there are such things as burglars, and that burglars burgle.” It would be still more absurd to say this if I had had bars installed outside my windows, precisely to prevent burglars from getting in, and a burglar got in only because of a defect in the bars.

Perhaps, particularly if contraception has been used, the foreseeable risk of pregnancy isn’t enough to create a special moral duty for the mother — a duty to provide the fetus with the use of her body.

The wider point is this. We often assume that the fetus’ moral status, its having or lacking a right to life, is the beginning and end of the abortion issue. But this assumption is wrong. Even if we grant a fetus the same moral rights as an adult human, we still need to answer this; how much can one person’s right to life reasonably demand from another person?

Who’s Harmed by Abortion?

photograph of pro-life protestors in front of Planned Parenthood

Earlier this month, the Texas Heartbeat Act came into force. The Act empowers citizens to sue anyone assisting a pregnant person in securing an abortion after a fetal heartbeat is detectable – generally around the six-week mark. This means that anyone tangentially involved in the causal chain of events leading to an abortion can be implicated. From the clinician who conducts the abortion, to the individual or company that provides the funds to pay for the procedure, to the taxi driver who drives the pregnant person to the clinic; if you can be linked to the abortion, you could be sued. Upon a successful lawsuit, the defendant must pay $10,000 to the person who raised the case and cover the legal fees of both parties.

The Act’s introduction has generated a lot of ethical, jurisprudential, and social debate. This includes its constitutional viability in respect to Roe v. Wade, the acceptability of deputizing private citizens to enforce state law, the lack of exceptions for pregnancies resulting from rape or incest, and the fairness of the ‘six-week mark’ given that most people don’t know they’re pregnant at this point. In a previous post, I’ve highlighted the Act’s problematic use of language. However, a Wall Street Journal article stood out to me, and I wanted to examine it here.

In “The Texas Abortion Law Is Unconventional Because It Had to Be,” Texas State Senator Bryan Hughes clarifies what he believes to be the ill-informed commentary surrounding the Act. He states that the legal gymnastics conducted by the Act were essential as the Supreme Court had gone beyond its purview in its decision in the Roe v. Wade case. Hughes argues that the Court meddled in affairs outside of its jurisdiction by taking the question of abortion out of the electorate’s hands. The Texas Heartbeat Act is a response to this overstep Hughes claims, writing that, “[l]ike it or not, states will keep crafting unconventional means of regulating abortion until the Supreme Court puts the question back where it belongs.”

To support this claim, Hughes talks about the nature of the wronged party in civil cases, arguing that, “[i]n almost every case, the person wronged, and therefore the person who brings the claim, is the plaintiff.” Concerning abortion, the problem, at least as Hughes sees it, is twofold. First, the criminal law is unable to tackle the issue of abortion because of Roe V. Wade. Thus, civil law must be utilized. And this leads to Hughes’ second problem: in instances of abortion, the wronged party can’t bring a civil case against those that have done it harm, as that party no longer exists; abortion eliminates the supposedly wronged party. He writes:

In the case of abortion, the wronged party has been extinguished. If we can’t depend on criminal enforcement, even if Roe is overturned, and the party who directly suffered harm cannot bring a claim, what’s left? Someone else must enforce the law.

The idea that a gestating being is harmed is essential for Hughes. His argument rests upon the civil law being used to compensate for that harm – no harm means no justifiable civil case. Yet, it’s not clear what harm means in this context or why we should care. And it is this lack of clarity that’s fascinating.

You might not think there’s much of a mystery here. You might say that the gestating life is harmed by being aborted, which would not be a novel line of argument. Many anti-abortionists and pro-lifers, such as Pope Francis, Marjorie Taylor Greene, and Marco Rubio, make similar claims. But, this stance isn’t without its problems.

Simply saying that something is harmed doesn’t provide us with any clear indication that such harm is morally relevant or a matter deserving retribution. Instead, it’s the outcome of that harm, qualities particular to the harm, or the experience of being harmed that conveys importance here. Thus, harm, in and of itself, is not morally relevant. To illustrate this, let’s turn to the 1995 classic Toy Story.

Sid, the film’s antagonist, is a destructive boy with a penchant for breaking toys. This habit is depicted as horrifying because the toys are not inanimate beings but are conscious, capable of possessing minds and feeling pain. Thus, their destruction at Sid’s hands is vicious, mutilative, and, yes, morally wrong. Yet, if those toys weren’t alive, Sid’s troubling actions wouldn’t be of moral concern. Thus, while he could harm the toys in terms of their physical destruction and deconstruction, it wouldn’t be harmful in the same way as one could harm another living being; Sid pulling the head off his sister’s doll would be entirely different from pulling the head off his sister.

Harm, as it concerns the destruction of an organized matter, is not inherently morally troublesome. We do it all the time when we eat or tear clothing. What matters is that action’s associations. In Toy Story, the toys are alive, so Sid should, in Woody’s words, “play nice.”

In the case of abortion, the harm is judged by anti-abortionists as being ethically reprehensible because it is harm inflicted upon a morally relevant being – the gestating lifeform. For them, the clump of cells developing in the womb is not the same as a toy, nor is it the same as other biological matter (like a puddle of blood). There is something special about gestation that confers moral importance.

But is there? Here, the idea of abortion as harm runs into another, much more substantive hurdle – what is the moral status of the gestating being?

Credit where it’s due, Hughes puts his cards on the table in his article and states, “I believe life begins at conception.” Thus, for him, the moral relevance of a gestating being begins at that exact moment. From then onwards, its moral status is considered comparable to that of any other human. This claim, derivable from the position of the Catholic Church since the nineteenth century, is one of the foundations upon which he builds his argument. Not that abortion causes the physical destruction of a complex material structure, but it harms a morally relevant being through that being’s obliteration; not that something has been destroyed, but someone has been harmed. Yet, this easy-to-understand view – that life after conception is comparable to life at any other point – leads to some counterintuitive outcomes. Namely, you have the same duties to the gestating being as you would to a fully-formed adult.

For example, imagine you discover that a fire has broken out at a fertility center, and you can hear yells coming from inside. With no one around and the fire department unlikely to arrive in time, you enter the building. You eventually find someone in one of the labs, trapped under a table. Unfortunately, freeing them will take time and risk both your lives. In the same lab, you see several trays labelled ‘fertilized eggs’, all of which contain hundreds of test tubes. As the fire intensifies, you realize that you can either save the person or hundreds of fertilized eggs, but not both. Which do you pick?

It’s a numbers game; how many lives can you save? The answer to that question depends on when you think life begins. You should grab the trays and leave the trapped individual to their fate if it’s at conception. After all, why save just one life when you could save hundreds? Yet, this would seem to be a bizarre outcome. To leave a conscious being to a painful death to save clusters of cells would strike many as counterintuitive, regardless of how many fertilized eggs you could carry. Yet, this is what Hughes’s beliefs require.

Now, that being said, I don’t think this line of reasoning inherently discredits the Texas Heartbeat Act. There are arguments, such as it being a response to the Supreme Court’s judicial oversight, which may be used as a justification for its implementation. However, trying to justify the Act as providing a necessary recourse for those who are supposedly wronged, as argued by Hughes, certainly needs refinement.