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Pro-Life, Pro-Choice
Shared Values in the Abortion Debate
By Bertha Alvarez Manninen Vanderbilt University Press
Copyright © 2014 Vanderbilt University Press
All rights reserved.
ISBN: 978-0-8265-1991-7
CHAPTER 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.
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. 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). For others, such as philosophers Jeff McMahan and L. W. Sumner, the basic capacity for consciousness is sufficient for some degree of moral status.
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. The law includes an exception for the life or health of the pregnant woman, although it does not take mental health into account. 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." In reference to his state's 2011 ballot initiative, Mississippi 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.
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 personhood 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. 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."
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." 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 personhood; 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." 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:
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.
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.
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."
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." 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.
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,
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.
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." 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.
(Continues...)
Excerpted from Pro-Life, Pro-Choice by Bertha Alvarez Manninen. Copyright © 2014 Vanderbilt University Press. Excerpted by permission of Vanderbilt University Press.
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