If Roe v. Wade Is Overruled, What Arguments Should Abortion Rights Supporters Use?

The odds that Roe v. Wade may be overturned in the next few years are substantial. Several Supreme Court vacancies are likely to occur, and with Republicans controlling both Congress and the White House, those vacancies may well be filled by Justices who would vote to overrule the controversial decision.

It is time, therefore, for those who believe women ought to have a legal right to an abortion, at least under a fairly wide range of circumstances, to rethink their arguments.

First, let's consider why Roe is controversial. It is not because Roe held that women have a fundamental privacy interest in controlling whether and when to reproduce - an interest uncontroversially reflected in the constitutional right to use birth control.

Indeed, some jurisdictions have chosen to do exactly that, in all contexts except that of abortion. For example, in 1998, Michigan passed a "Fetal Protection Act," under which intentionally killing a fetus, outside the abortion context, can be punished by life in prison. Meanwhile, this year the Senate will consider the "Unborn Victims of Violence Act of 2003," which calls for punishing certain acts that kill or cause bodily injury to a fetus, just as if the mother herself had been killed or injured.

These laws, in themselves, are not an objectionable way to reflect the value of fetal life in the law. But as Shavar Jeffries earlier pointed out in a column for this site, their premise - that a fetus is a person - is in tension with Roe. Indeed, these laws can serve as a ground for overruling Roe, and would doubtless then be extended to the abortion context too.

As a result, those who support abortion rights must be prepared to argue, even if fetuses are accorded the legal status of persons, that women should still retain the right to choose an abortion. As I will argue below, such an argument can persuasively be made.

Moreover, if pro-choice forces fail to make this argument, they are unlikely to be as successful as they want to be in the legislative battles that likely lie ahead. Approximately 60% of Americans think that women should be free to have an abortion under a range of circumstances. But approximately the same percent think abortions should be less readily available than they now are. This second group represents a majority who believe that a fetus has significant moral status.

Why Abortion Can Be Justified Even If A Fetus Is A "Person"

Suppose a fetus does indeed have the moral status of a person. It might seem that it would be permissible to kill it only if necessary to save the mother's life or to protect her from grievous bodily harm. In those circumstances, the mother's right to self-defense would be implicated: We can kill people who threaten us or others with serious bodily harm or death.

But a pregnant woman is not merely allowing a fetus to live. She is also carrying a fetus, thereby serving as its life support. The duty to serve as life support for another is altogether different from the duty not to kill another who is living on his or her own.

Consider Judith Thomson's analogy: Suppose you are attacked, dragged to a hospital, and hooked up to an unconscious person who will use your kidneys to filter his blood until he recovers from a rare disease. After seven months, you can sever your connection to him and he will likely be fine (though it would be best for him if you stayed connected for nine months). If you sever your connection any earlier than seven months, he will die.

As Thomson notes, while it would be awfully nice of you to stay connected to him, you are not morally or legally required to do so. Importantly, this is true even though you would kill him by disconnecting. Your staying connected would be a Good Samaritan act. While the law sometimes requires small Good Samaritan sacrifices, it no longer requires anyone to make such a demanding and personal sacrifice for the sake of another. (The last time it did, was when it made abortion illegal.)

Thomson's analogy explains why we might want to allow abortion in cases of rape - cases in which the woman's body is hijacked without her consent by the man who inseminates her. But what about cases of consensual sex? Can a woman who gets pregnant from consensual sex really claim to be in the same position as Thomson's unwilling temporary kidney donor?

And to make the question more difficult, what if the woman and her partner fail to use any birth control, or to use birth control correctly? According to the Guttmacher Institute, this was the case in 93% of abortions performed in 2000 in America.

Arguably, a woman who has consensual sex without properly using birth control assumes the risk that she will get pregnant. One could call her reckless with respect to the risk that a fetus could be conceived. And if she assumes the risk of getting pregnant, then she arguably assumes the responsibility of carrying the fetus to term.

To answer that challenge, it's useful to look to other areas of the law.

If A Fetus Results From A Woman's Recklessness, Must She Carry It To Term?

In other areas of law, actions that risk causing a result do not necessarily put one in a position to be held responsible for the result. More than mere causation is necessary.

First, the law asks, is the result harmful? Here, there is no harm in creating a fetus. True, causing it to exist leaves it dependent on its mother. But it is no worse off having been conceived and made dependent than if it never had been conceived at all - especially if it never achieves consciousness, as occurs with abortions in the first trimester and at least part of the second trimester. Thus, a woman who conceives causes no harm that she has to make good by serving as the fetus's life support system.

Second, the law asks, is a particular method of holding a person responsible a fitting response to her level of responsibility? Even if a person is responsible for some outcome, she can't be held responsible in a way that is disproportionate to her level of responsibility. Requiring a woman to carry a pregnancy to term is a most extreme case of specific performance, one surely not justified if the woman has caused no harm by conceiving the fetus.

Does Being A Biological Parent By Itself Make A Woman Duty-Bound Not to Abort?

For instance, while a mother can give her child up for adoption, she cannot simply abandon it. She has to ensure it is in responsible hands before she can legally walk away. Likewise a father cannot simply disavow responsibility for a child of his. Even if he would have preferred that the mother abort the child, he may be held responsible for child support. He risked assuming that responsibility when he had sex.

But there are limits to parental responsibility. And intrusions on the body are qualitatively more invasive than imposing financial burdens. The law allows momentary invasions of the body, for example, for vaccinations and blood tests. But no court has ever held that a parent can be, for example, legally required to donate a kidney to save a child's life, not even if the parent is the only possible organ donor.

It may be tempting to liken pregnancy more to getting a vaccination than to donating a kidney. But imagine that similar demands could be imposed on a father, as in Thomson's example. That is, imagine that a father would have to have his child hooked up to his body, carry it around for at least seven months, suffer various maladies such as nausea and back pain, and undergo other hormonal and physical changes on a par with pregnancy. Further, imagine that this was to be done to a father who had not voluntarily assumed responsibility for the child, but was merely the biological father.

It is clear that the law would not so impose on a father. Accordingly, it violates equal protection to impose an unwanted pregnancy on a mother.

Limits Of This Argument

The most important limit to this Good Samaritan argument concerns viability. If the fetus is viable, then a woman presumably has no right to kill it.

Roe drew a line at viability, holding that a state could take a compelling interest in the life of a fetus at the point at which it could live outside of the mother. I have been arguing both that the state can take a compelling interest in the life of a fetus prior to viability, and that a woman still has a right not to serve as its life support. Nevertheless, viability marks an important line.

The Good Samaritan argument holds that a woman has a right to be free from service to a fetus. If it would die without her help, then she makes it no worse off by killing it or having it killed. In other words, there is no reason for her to having it taken out alive, at greater cost to her, if will die anyway once taken out of her body.

If it would live, however, then there is a strong case to be made for her to have it taken out in a way that does it no harm. For now her killing it to be free from service to it makes it worse off than if she freed herself from it without killing it. Moreover, if it is nearly viable, it may be reasonable to ask the woman to delay having the fetus taken out a little while longer.

If she has already chosen to carry it for three or four months, she has arguably demonstrated that she does not think pregnancy is too onerous a burden on her - though a threat to her life or health should still give her a ground to refuse to go further.

The Impact Of This Argument On The Status Of Fetuses

I have presented here are a brief overview of the arguments that women should retain a right to choose an abortion even if fetuses are counted as persons. These arguments also have significance for bridging the social divide on the question of the moral status of an embryo (a new human life until the eighth week of pregnancy) or a fetus (new human life from eight weeks until birth).

The debate over the status of nascent human life is surely distorted by the mistaken belief that abortion rights depend on denying fetuses a status approaching that of persons. This mistake leads defenders of abortion rights to be overly strident in denying moral status to fetuses. It also leads abortion foes to be overly strident in insisting that a new human life should count as a person from the moment of conception.

In truth, very few people think that a one celled zygote formed by conception should be counted a "person." Likewise, very few people think that a fetus capable of conscious sensations should not have moral status at least approaching that of a person. Were more people to recognize that the right to have an abortion does not depend on denying that a fetus is a person, then more people would be able to find common ground on the status of human embryos and fetuses.

Finally, if people can find common ground on the status of embryos and fetuses, that should help people find common ground on the exact contours of the right to choose an abortion. If a woman is carrying an embryo or early fetus that does not merit the status of a person, her right to an abortion should be even more robust than suggested by the Good Samaritan argument. But if she is carrying a more mature fetus, one that can reasonably be counted as a person, then her right to an abortion could properly be circumscribed and limited in ways that, as noted above, the majority of Americans support.