24 Weeks

I should probably have done a bit more research before posting the preceding item; the legalities in this case are clearer than I had realized.

Most states, including Ohio, consider “non-therapeutic” abortions after 24 weeks to be unlawful; it appears also that the Ohio criminal code considers the “unlawful termination of another’s pregnancy” to be murder. So it seems that under Ohio law, Mr. Cutts can plausibly be charged with the murder of Ms. Davis’s fetus in this case, as her pregnancy had advanced beyond the legal threshold. The relevant sections of the Ohio Revised Code are here (abortion) and here (homicide).

A little poking about online found many folks asking the same questions I’ve raised here; often, however, the justification given for a murder charge, and the distinction made between such a murder and an abortion, is that the fetus was killed against the mother’s will. This, it seems to me, is not a valid argument: as I wrote in the previous post, the concept of murder requires that there be a person who is murdered, and for a fetus’s personhood to depend upon such contingencies as its mother’s whim or an attacker’s violence is inconsistent and unjust. But the Ohio legislature has made an arbitrary distinction, binding with the force of law: a fetus, after 24 weeks, is promoted to personhood, and to kill it is murder. It is, however, a restricted form of personhood: the law makes exceptions for “therapeutic” abortions right up until birth. By this they mean abortions that are necessary to protect the mother’s health; on closer examination this position has its difficulties too.

The rationale behind the 24-week cutoff for abortions is the assumption of “viability” — the fetus is imagined at this point to have a fair chance of living on its own. Why, exactly, this is a compelling criterion I am not certain, as a baby not cared for once out of the womb will surely die; the difference is simply the mode of dependence upon the mother, not the dependence itself. And as I mentioned previously, ex-utero viability is a matter solely of medical technique, and it is reasonable to suppose that before long it will be possible for fetuses to be hosted outside of the womb for their entire gestation. What will we make of “viability” then?

It is also interesting to examine the “health of the mother” argument regarding late-term abortions; if the fetus, based on this assumption of viability, is presumed at this stage to be an independent person, deserving of protection from murder, then how can we justify killing it even if it will save the mother’s life? Imagine an admittedly implausible scenario where, after a wrenching decision not to abort, we have actually removed, with difficulty and unforeseen calamity, the “viable” late-term fetus from the mother’s body — but the mother, who has an extremely rare blood type, has lost enough blood in the process that the only way to save her life is now to kill the baby for its blood? We recoil. But in what meaningful sense is there any difference?

But the law can have none of this ambiguity: it must provide guidelines, however imperfect, and the Ohio solons have spoken. 24 weeks it is.

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  1. the one eyed man says

    I’m not sure what the point is of two charges against this guy. It is like higher penalties for a violent act if it is a “hate crime.” Killing someone is bad enough — calling that person a pederast (or, for that matter, a catamite) and in so doing also becoming culpable for a hate crime against gays seems somewhat gratuitous.

    Regarding the larger moral question of when life starts, my view is: I don’t know. This is a judgment which is beyond ratiocination and into the realm of personal gut feeling, almost like whether or not you like blue foods or if the Grateful Dead is a better band than the Rolling Stones. (They aren’t, but that’s besides the point.) However, since I don’t know — nor does anyone else — then it ought not to be taken into consideration in events such as this one. Since it is something about which reasonable people may (and do) disagree, since it is sui generis, and since it is not amenable to logic or reason, I do not think this is something which should be governed by the state in outlawing abortion or considering the death of a fetus to be an aggravating event for a murder conviction.

    Posted June 25, 2007 at 11:56 pm | Permalink
  2. Malcolm says

    Hi Peter,

    Thanks as always for your thoughtful comments.

    I agree with the hate-crime comparison; in fact I was just making the same point in a conversation earlier today.

    I’m not sure I’m clear about what it is you are suggesting; are you saying that there should be no regulation whatsoever of abortion? That anything goes, right up to the moment of birth?

    Posted June 26, 2007 at 12:03 am | Permalink
  3. the one eyed man says


    Posted June 26, 2007 at 12:16 am | Permalink
  4. Malcolm says

    That seems rather harsh to me, as I think it would to most people; a full-term fetus is, I think, just as much of a fully-baked human one minute before delivery as it is one minute after. Selecting the moment of parturition as the dividing line seems just as arbitrary as any other point, and a good deal more morally fraught than placing the boundary earlier on. Are you quite sure this feels right to you?

    Posted June 26, 2007 at 12:28 am | Permalink
  5. For several reasons, I think that this is a decision best left for the mother and not the state.

    First, there are a number of situations in which I have no ethical problem with late stage abortions. The two most obvious examples are when there is a threat to the life of the mother or the fetus has spina bifida or some other horrible disease. In my view, the state has no right to outlaw abortions in either circumstance, nor does it have the right to make judgment calls about whether the tie goes to the runner or not.

    Secondly, the fact that there is no single instant in the continuum of pregnancy at which life unequivocally starts does not mean that there should be no limit set at all. The abortion question always leads to reduction ad absurdum issues: if the beginning of the third trimester is OK, why not five minutes before or after? There are only two moments which are not arbitrary: conception and birth. I prefer the clarity of an absolute to a slippery slope. Obviously people can disagree, but I place the moment at birth.

    Thirdly, let’s leave the world of abstraction and think about what happens in real life. I can’t imagine more than a tiny minority of women seeking late stage abortions who do so casually: it must be a heart-wrenching and difficult thing to go through, and the moral calculus of a woman making that decision is much more intense and nuanced than the blunt instrument of state power. If a woman chooses to do this, it is not for me to question her judgment. Nor is it for the anti-abortion zealots: if they think abortion is wrong, nobody is forcing them to have one. (I also question how many of the anti-choice gang would abide by their principles when their sixteen year old daughter gets pregnant).

    Fourth, there is the argument put forth in Freakonomics that crime declined over the past several years as a result of the increase in abortions which followed Roe v. Wade. The thinking is that less unwanted kids were born, hence less troubled teenagers who caused mayhem and violence, hence a happier world. Let’s file this in the utilitarian category: not the most compelling argument, but an interesting one.

    Finally, I’m a big fan of the concept that the government that governs best is the government that governs least. Some things are best left in the private domain, and I believe strongly that abortion is one of them. I think it is wrong to abort a fetus because, for example, you would prefer a girl to a boy, but I don’t think it should be illegal. Like anyone else, I am queasy at the idea of an abortion at the two yard line of pregnancy (second hackneyed sports metaphor), but I don’t think it should be illegal. In this instance, I think that society’s collective judgment should be outweighed by the judgment of the woman involved.

    Posted June 26, 2007 at 12:07 pm | Permalink
  6. Malcolm says

    Hi Peter,

    I’m still inclined to disagree. First of all the law often has to impose discrete boundaries on continua; a good example is the age of majority. To be sure, there are those who are responsible enough to sign contracts, drink, etc., before they reach legal age, but we must draw a line somewhere, and we do. The fact that it is difficult, or impossible, to define a precise location doesn’t mean that we don’t need to find an intermediate boundary in this case, where the stakes are highest of all. Clearly a zygote is on one side of the line; where we differ is that I think a fetus one hour short of delivery is just as clearly on the other side, and you apparently don’t.

    Your reference to the Freakonomics argument appears to be intended to convince me that abortion should be legal in the first place. You needn’t worry: I don’t dispute that. I am strongly in favor of keeping abortion legal.

    But your position seems to me to ignore the emerging personhood of a developing fetus in order to that the rights of the mother be entirely unlimited, whereas I think a fetus at full term is very arguably person enough to have some rights of its own, if any of us do. If a pregnancy is unwanted, the mother has ample time to make the decision earlier on. I don’t think that a radical denial that a full-term fetus a minute shy of birth is as deserving of the same protection that we would grant it two minutes later (and that we expect for ourselves) is morally justifiable. The only meaningful difference between the two is that one hasn’t managed to kick itself out into the daylight yet. I don’t think your wish to avoid ambiguity is sufficient justification for what I think is arguably murder.

    Where, then, should the line be? The consensus at the moment seems to be 24 weeks, or 63% of the way along; just to be on the safe side I might be inclined to move it even father back, perhaps, but it seems fair enough to me, given the difficulty of establishing objective criteria.

    Again, I am strongly of the opinion that abortion should be legal, but I think it is important to err on the side of caution here; we are pitting one person’s claim to unlimited freedom against another’s right not to be murdered.

    Posted June 26, 2007 at 12:39 pm | Permalink
  7. And this is where all discussions about abortion end: gut instinct. I don’t consider abortion to be the murder of a fetus, but I can see why others do. I think the right of the mother is absolute, but I can see why others ascribe putative rights to a fetus (although I think the absolute position — which precludes stem cell research — is very wrong). Of all of the contentious issues which are around today, abortion is the one where you are least likely to change someone’s mind.

    Posted June 26, 2007 at 1:47 pm | Permalink
  8. Malcolm says

    Hi Pete,

    Well, as I see it, and as I have argued here, the crux of the discussion is the personhood of the fetus. Biologically, at least, there is no meaningful distinction between the minute before and the minute after delivery, but there is an enormous, practically infinite difference between a full-term fetus and a fertilized egg. So I think the boundary belongs in a more medial position, which seems also to be the prevailing legal consensus.

    Posted June 26, 2007 at 2:00 pm | Permalink