Miscarriage of Justice?

There is quite a ruction, as we might expect, over the Supreme Court’s ruling upholding a Federal law barring “partial birth” abortions, and even the justices of the Supreme Court seem quite angrily divided. This is law at its most difficult, in which separating the rights and interests of the parties involved — in fact, even defining how many interested parties there are — depends not on simple, practical considerations, but upon metaphysical intuitions for which there is no demonstrably correct answer, and about which people’s beliefs vary diametrically.

At what point is a fetus a person whose rights must be considered? The spectrum of human opinion ranges from before the moment of conception, as in the Catholic Church’s position on birth control, to the moment of birth and even beyond. The development of a fetus is a continuum, from fertilized ovum to swaddled newborn, and there is no place to mark the point where the “person” enters the picture. To the religious, ensoulment, and therefore personhood, may occur at conception; to others, the fetus is a proper subset of a woman’s body until the moment of birth. Who is right? By what criteria can we answer such a question? Viability? But that is just a matter of technique. The onset of rudimentary consciousness? We have no idea how that could be determined. Religious or philosophical beliefs? Sure. Yours, or mine?

But it is the necessary task of the law to impose discontinuous distinctions upon continuous phenomena, and I must say that the procedure in question here — which is almost inhumanly gruesome, and which is by definition performed upon fetuses that are well on their way to the completion of their development — is arguably not something that ought to be seen as a Constitutional right.

Do keep in mind that the ruling is not that the law cannot be amended to permit this procedure, should the citizenry and their elected representatives decide to make it legal again; the Court is merely saying that laws banning this procedure may not be set aside on purely Constitutional grounds. The matter may still be addressed by the ordinary processes of democracy. Perhaps this is about the best we might hope for.

There is more that I might say about all of this, but it is quite late, and it’s been a long day.

Related content from Sphere


  1. bob koepp says

    Hi Malcolm – I think that if this particular decision is important it will be more for the amount of ink that gets spilled than for any effect on the number of late-term abortions. As a bioethicist friend observed, physicians who perform late-term abortions will simply perform feticide (probably an injection to the fetal heart) prior to removing the (then) already dead fetus. Various legal protections for the confidentiality of medical information will make it virtually impossible for “outsiders” to interfere.

    Posted April 20, 2007 at 10:02 am | Permalink
  2. Malcolm says

    Hi Bob, and thanks as always for reading and commenting.

    I have no doubt that you are right — a physician friend mentioned this to me also.

    One thing I would like to add: while reasonable people may differ about the rights of mother and fetus, there is one aspect of this ruling with which I sharply disagree, and that is the paternalistic attitude, expressed by Justice Kennedy, that the State has an interest in protecting the mother from making a decision she will later regret. Women do not need a “daddy state” pre-empting their moral judgments; they must be presumed to be responsible and autonomous adults, and this is a shocking insult, more the sort of thing I’d expect to see in Pakistan or Saudi Arabia than here in America.

    Posted April 20, 2007 at 10:38 am | Permalink
  3. bob koepp says

    Malcolm – I agree that there’s a very objectionable tendency to treat women as “incompetents” running through much of the debate concerning the morality of abortion. In fact, I think the focus on the “status of the fetus” is just a red herring to avoid facing the issue articulated long ago by Judith Thomson; namely, even if a fetus possesses all the rights of a full-fledged person, that wouldn’t justify compelling a woman to provide her body as a “life support system.”

    Posted April 20, 2007 at 12:00 pm | Permalink
  4. Malcolm says

    Well, those waters are muddied a bit, perhaps, if we note that the fetus didn’t just wander in off the street, and that we do indeed consider parents to be legally responsible for providing “life support” for their own children.

    One might argue that removing a mid-term fetus from the womb is comparable to putting your one-day-old infant outside on a winter day; in both cases there is a reasonable expectation that they will die as a result. The “personhood” of the fetus does, I think, remain a central issue.

    Posted April 20, 2007 at 12:12 pm | Permalink
  5. bob koepp says

    Malcolm – I hope you understand that I’m not claiming that a fetus isn’t an enormously valuable thing. I even think that any woman with a well-developed sense of personal responsibility would view either beginning or ending a pregancy as a momentous decision. A well-formed, mature ethical attitude will incorporate a robust sense of the tragic.

    If you’re familiar with Thomson’s argument, it’s structured precisely to show the irrelevance of personhood to the question of a woman’s “right” to choose whether or not to provide a temporary safe harbor. Even if we all were to agree that a fetus is a person with the same rights as you and I, it wouldn’t, I think trump a woman’s right to decide whether or not to provide direct physiological support to that person. Sure, she probably has some responsibility for having become pregnant. But it seems beyond any semblance of proportionality to translate that into a responsibility to carry a fetus around until it’s able to function independently of her (physiologically speaking, that is).

    Posted April 20, 2007 at 8:57 pm | Permalink
  6. Malcolm says

    Hi Bob,

    Well, this is the important question (and I am, by the way, very much a pro-choice, generally libertarian sort myself).

    There are two distinct but intertwined issues here. One is whether the fetus is a “person” in the first place, with any rights at all, and the other concerns the mother’s legal responsibility, which of course depends on whether the fetus does indeed have any legal rights.

    The argument you are offering makes it sound as if the mother should have no more obligation to her own offspring than she would to you, or me, or anyone else. But of course the fact is that we do indeed expect parents, upon pain of severe legal penalties, to look after their children until, as you say, they are able to function independently. But this obligation currently kicks in only at the moment of live birth, and I wonder if that is the right place to draw the line.

    Consider the case where a woman is about to give birth on Tuesday. According to what you are saying, on Monday she still has no obligation to carry the fetus around any longer if she decides she doesn’t want to, and can abort it, whereas on Wednesday she has assumed the full burden of parental responsibility. But when it comes to rights, and our moral obligation, I wonder if we are justified in assigning the same degree of personhood (namely zero) to a full-term fetus as we do to a barely developed blastocyst. I don’t think we are. The day-old clump of cells seems to me to be on one side of a moral line, and the fetus one day shy of delivery clearly on the other, and I think it is reasonable for the law to honor that distinction.

    Posted April 21, 2007 at 12:30 am | Permalink
  7. bob koepp says

    Malcolm – When I spoke of offspring being able to function independently I made the parenthetical qualification “(physiologically speaking, that is)”. I think for mammals like ourselves the capacity for separate physiological existence is crucially important. That means I’m willing to treat “viability” as a very important consideration (and I recognize that the point of viability continues to shift with our technical prowess). If a fetus can be safely removed from a woman’s body in a way that won’t result in its death, then I think that’s what ought to be done. I interpret the right to terminate a pregnancy as the right to choose whether or not to provide direct physiological support to another organism, not as the right to kill that organism — even if, in most situations, death of that organism is the inevitable result. (I realize that if you reject the active/passive distinction, you’ll view this as a difference that makes no difference.)

    Posted April 21, 2007 at 9:29 am | Permalink
  8. Malcolm says

    Hi Bob,

    Fair enough. So what you are talking about is the equivalent of putting the baby up for adoption immediately upon its birth.

    There is still the question, of course, of at what point the fetus acquires sufficient “personhood” to warrant protection from being destroyed. I think birth is too far along.

    Posted April 21, 2007 at 12:20 pm | Permalink