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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.

Underrepresentation in Clinical Trials and COVID-19

photograph of vaccine waiting line

There have long been concerns about underrepresentation in the clinical trials of medical products, and there has been a large push for the testing of COVID-19 vaccines to be more inclusive due to the urgency of the problem and danger the virus poses to all of us. The current situation presents an opportunity to assess the previous model that tended to emphasize efficiency — doing the most good for the most amount of people as quickly as possible, often in the interests of speeding production — at the cost to underrepresented groups continually having to use medical products not specifically designed for them.

Historically, both medical professionals and clinical trial participants were primarily men. Making up more than half of the population, women were drastically underrepresented in medicine. This underrepresentation resulted in vast differences in healthcare for men and women. This is important because men and women present different symptoms of disease. Since men have largely been the sample for clinical trials of medical products, there is far more medical knowledge about how men present symptoms of various diseases. This makes diagnosis for women more difficult, and it makes their symptoms seem abnormal.

The underrepresentation of women in clinical trials also impacts the treatment of diseases. When male cells, male animals, and men are the basis of clinical trials, researchers are looking only at the effects on one-half of the population. Often, when women were included in these trials, their data was not analyzed separately or significantly, so differences in experiences were not addressed. After trials, women would take medicine that had not been optimized for them, which could result in negative health consequences. For example, Ambien, a sleep aid, was not tested for differences in effects on men and women. When Ambien became available for use, the slower metabolism of women meant that the drug stayed in their systems longer than men, so the dose was too high for women.

One reason for the low representation of women in clinical trials is that researchers worried that women’s reproductive cycles and hormones would overcomplicate the study and provide confounding variables. However, these variables are part of the reason why men and women both need to be included in clinical trials. When hormonal fluctuations and reproductive cycles are not taken into account, it is uncertain exactly how a medical product will work.

Another reason women were often excluded from clinical trials was fear of harming fertility. In 1977, the FDA recommended  women of childbearing age do not participate in clinical trials for fear that medical products may harm a fetus in the event that the woman became pregnant. This recommendation was put into place after exposure to some drugs caused birth defects. In the past, little research was done about women’s health that did not relate to reproductive health. Fertility seemed to be the primary concern about women’s health, so it was treated as more important than the potential benefits of including women in clinical trials.

The FDA reversed this recommendation in 1993 over ethical concerns about prioritizing the fetus over the potential benefits of including women in clinical trials. The recommendation’s reversal was also related to concerns about autonomy. When the FDA put forth the recommendation, they made it significantly more difficult for women who wanted to participate in clinical trials to do so. Despite some women not wanting children or simply valuing the advancement of women’s health more than any potential negative health effects they may face, women were excluded from trials. The FDA attempted to address safety concerns, but ultimately changed their recommendation because of the constraints on personal choice. While there remain safety concerns, women can now choose to participate in clinical trials.

Due to the urgent nature of the pandemic, ensuring that the vaccine is viable for as many people as possible is a priority. To achieve this, clinical trials have been more inclusive of many medically underrepresented groups, such as pregnant women, minorities, and people with certain medical conditions. Pregnant women can choose to participate in the clinical trials for the vaccine far earlier than they are able to for most medical products. This is partly due to the funding for vaccine development and the higher risk that pregnant women face with COVID-19.

In the future, it is uncertain whether medically underrepresented groups will continue to have the same participation they currently enjoy. While it is clear that these groups ought to have more representation in clinical trials, some medical professionals have concerns about funding and time. Most medical products do not have the funding that the COVID-19 vaccine has. Lower funding limits the number of people who can participate in a clinical trial. Additionally, there are time constraints. When a medical product is necessary, it is important that it is released as soon as possible. Knowledge of the potential health risks for different groups must be weighed with the benefits of releasing the medical product as soon as possible. Often, this means that the human trials consist of healthy men and women with no other conditions being the primary subjects. Later, the effects for individuals with various health conditions may be tested as well, but this is rarely made a priority.

The history of discrimination in clinical trials forces us to consider whether efficiency in the production of a medical product designed for the greatest number of people is truly fair when it means that persistently underrepresented groups continue to suffer from a lack of viable medical products tailored to their particular needs.

The Wrong Reasons? Refusing Elective Abortion Coverage

This week, Community Health Options, Maine’s largest provider of health coverage on the Affordable Care Act’s online marketplace announced that they no longer will offer coverage for elective abortions. The CEO, Kevin Lewis, cited economic considerations, as the co-op has suffered losses that it hopes to make up by cutting some coverage. Continue reading “The Wrong Reasons? Refusing Elective Abortion Coverage”

Supreme Court Strikes Down Texas Abortion Law

On June 27th, the Supreme Court decided on the hotly debated case, Whole Woman’s Health v. Hellerstedt, which dealt with access to abortion clinics in Texas. In 2013, Texas proposed a law requiring that all abortion clinics in the state hire only doctors that have “admitting privileges at local hospitals and meet outpatient surgical center standards.” This law would have shut down nearly 30 of Texas’ 40 abortion clinics, a state home to 5.4 million women in the reproductive age range.

Continue reading “Supreme Court Strikes Down Texas Abortion Law”

Ethics of “Over-the-Counter” Birth Control

Birth control access has been a long debated issue in the United States. Obtaining birth control methods usually means women must go to a doctor’s office in order to obtain a prescription, which can be difficult, for financial reasons or if the hospital is religiously affiliated, for example. On January 1, Oregon’s “over-the-counter” birth control law went into effect, and .

Continue reading “Ethics of “Over-the-Counter” Birth Control”