The Fetus is a Person. Now What?

So-called “pro-lifers” are so singularly focused on the fetus, they’ve made such a fetish of the thing, that they can’t grasp any argument that does not depend on the status of the fetus. They insist on pushing the line that the status of the fetus, including the zygote and the embryo, is a person and that this alone determines the moral and legal status of abortion. If the fetus is a person, the argument goes, then abortion is murder.

Given this assumption, all of the effort is put into pushing the assertion that “life,” which for pro-lifers means person, “begins at the moment of conception,” which is the joining of egg and sperm to produce a zygote (that’s a fertilized egg, for those of you not studied up on viviparous biology). Once there is a zygote, a person has been conceived, and it is murder to kill persons, ergo abortion is wrong and therefore must be criminalized.

When I stipulate for the sake of argument that the fetus is a person, pro-lifers pretend they didn’t hear the stipulation and keep on with this tedious why-a-fetus-is-a-person argument, as if it were still the crux of the matter. Why don’t they acknowledge the stipulation? Because they don’t know what to do next. They have been trained to believe that the debate over the status of the fetus is all there is to the argument. What remains is merely a matter of writing a criminal statute to protect the lives of the “unborn.”

But the argument isn’t over. I grant that the fetus is a person. I even grant that the zygote and the embryo are persons, too. Don’t waste on me arguments about heartbeats, requisite number of chromosomes, or what doctors tell us about when fetuses feel pain or what they think about. I’m going to argue that all that’s irrelevant: defending a woman’s right to control her reproductive capacity doesn’t depend on the status of the fetus one jot or tittle. The question doesn’t turn on the fetus, but on the right of the woman to have sovereignty over her body. Reproductive freedom is a human right.

First, let’s dispense with this erroneous assumption that killing persons is always murder. While killing a person is a necessary condition for murder, and while murder is a sufficient condition for a person having been killed, killing a person is not a sufficient condition for murder.  Murder is the intentional and unlawful killing of a person by another person. There are lawful reasons to kill persons: self defense, defense of innocents, state execution, and by-the-rules military combat. Furthermore, not all murder is immoral even if illegal. While it was illegal for a slave in the US south to use lethal force against the slave-master in order to free himself from captivity, it was not immoral for the slave to do so; the slave-master had no legitimate reason to keep people as slaves. Persons have the natural right to use up to lethal force to free themselves from unjust captivity. It is important to note that, because of his second-class status, the slave was not at liberty to exercise the rights first-class citizens enjoy. But this doesn’t change his right to act in this way. Rights don’t depend on status.

Most exceptions to murder stem from the fundamental human right of personal sovereignty, which involves, among other things, the person’s right to decide what happens to her or his physical body. To be a sovereign entity means to be free of the coercion or control of others. It means to be able to determine the direction and character of one’s own life. Sovereignty over your physical person is the essence of liberty. 

Here are some examples of the exercise of personal sovereignty: 

• I can refuse surgery, because I have the final say-so over what happens to my body. You can try to talk me into having the surgery, but you cannot make me undergo a surgical procedure. If I wish to die from my cancer, even if there are effective treatments for it, that is my choice.
• You are not allowed to take one of my kidneys, even though I only need one to survive, in order to provide a person with two dysfunctional kidney’s with a working one, even though that person will die without it. I have not committed murder by refusing to give up one of my kidneys to save a dying man even though it was my refusal that killed him.
• Medical experimentation on me without my express and voluntary consent is unethical because such action violates my personal autonomy. That’s what Nuremberg was all about.
• If you try to take my life or physically harm me in a significant manner without just cause, I can lawfully resist you with lethal force. This is the right of self-defense.
• I am morally and legally justified in taking the life of my captor when being unlawfully confined because such confinement is not chosen and thus interferes with the principle of personal sovereignty. It is wrong for a person or persons to physically control me in this way without just cause.

These examples are widely agreed upon. The personal sovereignty principle lies at the core of our law and concepts of morality. Very few of those who believe that a woman should not have the option of obtaining an abortion would accept the state telling them what they could do with their bodies.

This is what is at issue with respect to abortion rights, which constitute a subset of the larger right to personal sovereignty I have just sketched. Like everybody else, a woman owns her body. Just like a man, a woman is free to do with it what she will even if it involves the killing of another person under certain circumstances. She can justifiably kill a man who is trying to rape her. She can justifiably kill her captors to escape unjustified captivity. She can justifiably kill a person who is trying to kill her. She can do these things because she has a right to life and liberty. She has a right to her body and can use lethal force to protect that right. No law can properly deprive her of that right. Granting this is to assert women’s equality with men.

If the state criminalizes abortion, it makes doctors who perform abortions, and the women who seek them, criminals. The consequences of the criminal law are designed to instill fear in the would-be perpetrator and thus force the individual to follow the dictates of the law. Laws criminalizing abortion intend, and would have the effect, of forcing women to have children against their will. They frame a system of forced childbearing. It is hard to imagine a more terrible world to live in than a world in which women are forced to have babies. A woman does not control her womb under a criminal abortion regime, but is subject to state control of her body. The criminalization of abortion represents a violation of the woman’s most basic civil and human rights, constituting an immoral regime striking at the very core of the principle of human freedom. Such a society is not a free society, but a tyrannical one.

Judith Jarvis Thomson made an argument in her paper “A Defense of Abortion” that shares points of logic with the argument I am making. She argues from analogy:

You wake up in the morning and find yourself back to back in bed with an unconscious violinist. A famous unconscious violinist. He has been found to have a fatal kidney ailment, and the Society of Music Lovers has canvassed all the available medical records and found that you alone have the right blood type to help. They have therefore kidnapped you, and last night the violinist’s circulatory system was plugged into yours, so that your kidneys can be used to extract poisons from his blood as well as your own. … To unplug you would be to kill him. But never mind, it’s only for nine months. By then he will have recovered from his ailment, and can safely be unplugged from you.

Most of us would agree that it is wrong for a person to remain forcibly attached to another person for the purpose of keeping that other person alive. If one day one should find himself attached to another person, Thomson reasons, he should have the right to disconnect that person from his body, and if that person dies, he has not committed murder. On the contrary, any situation that forces a person to remain attached to that person is immoral for it compromises his sovereignty. He did not choose the situation, therefore he does not have accede to it. To be sure, one can imagine a state that forces him to remain attached to another person in order to preserve that life, but this would be a totalitarian society in which personal liberty and basic rights would go unrecognized. Most of you, I hope, agree with this assessment. A few people I have encountered will accept the burden. But the vast majority honestly answer that they would not and do agree that it is terrible burden and injustice.

Criticisms of Thomson’s position were many. It is not the purpose of this essay to review that literature. It will suffice to say that the objections are not compelling. But one objection worth looking at is the argument that this logic could only apply in cases of rape and incest, where the pregnant woman had not consented to the sex act that resulted in conception; where the woman consented to sex, she has consented to pregnancy. This objection doesn’t work. Historically, sex has been a necessary condition for pregnancy (technology has changed this, but that’s beside the point); however, sex has never been a sufficient condition for being pregnant. Sex is a precondition for pregnancy; sex does not signal an intent to be pregnant. Moreover, even if a woman intends to be pregnant, that does not require her to stay pregnant, since part of personal sovereignty is the right to change one’s mind. One does not have to stay in an experiment he volunteered for if he decides he wishes to quite the experiment. To force him to continue is to violate his right to voluntarily consent to the conditions. A free person can quit anytime. 

If I choose to be hooked up to another person in such a fashion, then that is my decision, and the state should allow me to make that choice. If one of my children needs a kidney, and I am a match, then I should be allowed to give my child one of my kidneys. If a woman chooses to have a baby, then that is her decision, as well. Any state that tells a woman that she cannot have a child is tyrannical (consider China’s one-child policy). The state should not force the woman to have a baby any more than the state should force me to remain attached to another person against my will.

While it seems the right thing to do to give my child one of my kidneys, the state does not have the right to take my kidney to save my child’s life. I am not a murderer if I refuse to give up my kidney and my child dies. Likewise, the state does not have the right to require a woman to remain attached to the person inside her womb. The same principle is in operation in all of these examples. Remember, I am not treating the fetus any differently than I am treating legally-recognized persons. I have assumed throughout all this, for the sake of argument, that the fetus is a person. 

If the state can force a woman to remain attached to a person in her womb, then why can’t the state force the woman to remain attached to a person outside her womb? In fact, if the principle is that the state can force the mother to remain attached to a person inside her womb so as to prevent a murder, then the state can and should force any person to remain attached to another person so as to prevent a murder. Your failure to give one of your good kidneys to a person without a kidney causes that person’s death. Are you a murderer? Your failure to give blood led to a blood shortage in which people died. Are you a murderer? A dozen people die everyday from kidney disease. These deaths could be virtually eliminated if people were to donate their kidneys. Have those who have died waiting for a kidney been murdered? 

However, pro-lifers won’t like this argument merely because it exposes their hypocrisy. They don’t want everybody to have to physically sustain the life of those whose lives are not self-sustaining. They would decry as tyranny such a situation. They would condemn it as yet another example of the intrusive liberal state. They only want women to physically sustain the life of those persons living inside their bodies. You don’t see them overly concerned with what happens to children after they are born. You don’t see them calling on extensive government provisions of social welfare in order to lift children out of poverty. If you suggest expanding the welfare state, they will whine about how the government is enslaving them, forcing them to support other people with their hard-earned tax dollars.  

The overall cognitive and moral frame of the most aggressive pro-lifers—conservative and authoritarian—betrays their motives. They want the state to force women to remain attached to the fetus. That’s what all this business is about when it comes to making a distinction between abortion for rape and incest over against “merely” not wanting to be pregnant. The idea is this: the state isn’t forcing women to have babies because women made the choice to have sex in the first place. At the same time the arguer is denying that he is motivated in opposing abortion on the grounds that the woman had sexual intercourse. I have seen this pattern repeated dozens of times in arguments I have had with pro-lifers and in reading comment sections to various blogs over the years. The fetus-is-a-person is a smokescreen for patriarchal oppression.

What pro-lifers want is not a consistent policy requiring each of us to physically sustain the life of other individuals with our physiological systems. What pro-lifers want is the recognition in law that women are second-class citizens, citizens who do not enjoy the same rights as men (men would never allow their bodies to be co-opted in such a fashion).  Just as slaves were not entitled to the natural right of self defense, they want to exempt women from the right to determine what to do with her body. 

Like the prohibition against slaves and those who fought alongside them from using lethal force to liberate themselves from slavery, criminalizing abortion is the exception to the rule of personal sovereignty, one that can exist, from the perspective of the patriarchal chauvinists who advocate it, because women are lessers in a society rightly dominated by men. Having an unwanted pregnancy means that the woman had sex for some other reason than procreation and this behavior must be punished by shackling the woman to the person living in her womb. Their interests lie in making sure the woman has a baby, that she suffers the consequences of sex for pleasure. 

Does this characterization exhaust the thinking and motives of all pro-lifers? No, of course not. People will give you lots of reasons why they believe it is proper for the state to force women to have babies (the same is true for those who support limiting the number of children a woman can have). A lot of people don’t understand the real motive that underpins their rationalization in favor of this or that public policy or moral stance. But I have captured the spirit of those who most vehemently oppose a woman’s right to control her reproductive capacity. The assumptions in their arguments, the tone of their attacks, and their overall belief system give the game away. 

However, in any case, whatever the political persuasion of those advocating state control over the body of women, such advocacy is a call for tyranny. The demand for the state to control the reproduction of women is an authoritarian one, one that is entirely incompatible with the principles of liberty underlying the legal and moral order necessary for a free society. The pro-life position has no reasonable justification for its advocacy for tyranny. They only have slogans.