Abortion and the Margins of Personhood
Little (Margaret Olivia)
Source: Rutgers Law Journal, Vol. 39:331, 2008
Paper - Abstract

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Introduction (Full text, footnotes omitted)

  1. When a woman is pregnant, how should we understand the moral status of the life within her? How should we understand its status as conceptus, as embryo, when an early or again matured fetus? According to some, human life in all of these forms is inviolable: early human life has a moral status equivalent to a person from the moment of conception. According to others, such life has no intrinsic status, even late in pregnancy. According to still others, moral status emerges when sentience does. Until the fetus is conscious – a point somewhere at the end of the second trimester, it has no moral status at all; after it is conscious, it does.
  2. But for a great many people, none of these views suffice. It is something rather more moderate that marks their intuitions. For many people, the human life at stake in early stages of pregnancy is not the moral equivalent of a paradigmatic person: if one somehow had to extinguish the life of an embryo in vitro to save a five-year old child, the choice would be clear. On the other hand, even early abortion involves a morally sober loss: contraception is preferable to abortion on grounds of morality, not just public health. Most clearly, the fully-matured fetus has the same level of moral considerability as does a newborn: birth does not mark a change in intrinsic moral status. In short, what a great many people believe is a graduated view of embryonic and fetal status: even at early stages of pregnancy, developing human life has an important value worthy of respect; its status grows as it does, increasing gradually until, at some point late in pregnancy, the fetus is deserving of the very strong moral protection due newborns.
  3. I think this is exactly right; and in the present Article, I sketch the outlines of such a view. I begin by considering why it has been difficult for philosophical theories to give more nuanced views of embryonic and fetal status. Discussion of abortion and the status of early human life has been dominated by two traditions, natural law on the conservative side, Enlightenment models on the liberal. I believe that each has important insights to offer, but that those insights are better understood when we start not with an all-or-nothing conception of moral status, but with a genuinely developmental picture of it. Part anticipatory and part achieved, moral status is comprised of a number of interweaving stages each leading to and giving way to the next.
  4. I then consider the implications such a view has for our public understanding of legal regulations around abortion. As many have noted, the legal status of abortion cannot be settled by determination of fetal status alone: so long as such life resides in a woman's body, living in and off of her resources, abortion laws implicate women's fundamental rights of bodily dominion. Added to this is the question of fetal viability – not because the emergence of viability changes the fetus's intrinsic status, but because it implicates what opportunities the fetus has independent of the woman, and hence what restrictions we may place on efforts of hers that would interfere with those changes. Considered together, I'll argue, these factors underwrite a liberal but shifting view of abortion. Early in pregnancy, abortion should be unrestricted, not because the embryo and early fetus have no value, but because pregnancy asks an enormous amount of a woman, and she is in the best position to judge whether it is a price that can be paid. As pregnancy continues, it takes more justification decently to abort, but the pregnant woman is still the proper authority for making decisions about whether that justification is reached. Late in pregnancy, the fetus's status and viability solidify; abortion – an act that aims at the death of the fetus rather than just bringing about an early end to gestation – is a grave affair that should be reserved for unusual cases involving the health or life of the mother.
  5. This is a view of abortion that many, at least, will find reasonable. It is also a view that explicitly acknowledges a genuine, if growing, moral status to early human life. Sometimes, those concerned to emphasize the importance of women's bodily dominion – and to balance what may legitimately be seen as a tendency on the part of some to highlight the fetus over the woman – have tended to downplay the issue of fetal status altogether. Hoping to remain neutralist, they are silent or vague about the status of developing human life. As one who is deeply committed to protecting legal access to abortion, I find this a profoundly flawed strategy. It ends up doing a deep disservice both to the maturing fetus and to the experiences of pregnant women and abortion providers; more than that, I'll be arguing, it threatens to undermine the very real arguments that exist for minimizing detailed state regulation of even late pregnancy and birth.


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