Michael Campagnuolo

Abortion as an entitlement is a central tenet of the progressive movement. Its enshrined status, however, has led to atrophy in the effort to justify abortion. The thirty-two year legal presence of abortion as a right has not quelled the opposition movement; justification is as vitally essential today as it was before 1973. The number of pro-choice supporters who can only muster up perfunctory reasons for abortion as a right is troublesome. Many whom I have encountered make impoverished justifications and then retreat whenever logical problems of those justifications come to light. Keeping abortion secure as a right demands that justifications be coherent, and the pro-choice movement would be downright hypocritical in demanding that anti-abortion advocates be coherent without holding themselves to the same standard. Many in the pro-choice movement shy away from this, as it requires taking objections to abortion seriously — an unpalatable task for abortion-rights supporters.

Though not exhaustive, the following is a survey of the mainstream justifications for abortion, along with their entailed logical or political problems, and an assessment of their juridical viability.

Non-personhood of Fetus
This argument supposes that since fetuses are not persons, then a woman's conduct towards the fetus cannot be restricted. This argument is based upon the premise that human conduct towards non-persons cannot be subject to coercive control, which is untrue. Although an entity may not have the rights of a person, it does not follow that a person has a right to do anything to that entity. States can and do protect the interests of non-persons by proscribing human behavior, as with animal cruelty statutes and vandalism laws. Accepting the position that human action towards non-persons cannot be proscribed by law as definitive would also leave certain classes of humans vulnerable.

Grounds for excluding fetuses from person-hood may either be mental or physical. Mental grounds for exclusion would hold that since a fetus is not self-aware or rational, it is not a person. Physical grounds would hold that since a fetal body has not matured into some recognizable or complete human form, it is not a person. Of course, both of these premises exclude more than fetuses from protected personhood. Acceptance of either or both premises would require that we also permit infanticide or euthanasia imposed upon developmentally challenged persons. Newborn infants are hard-pressed to demonstrate rationality or self-awareness; mental standards of personhood will easily exclude them, in addition to retarded persons, denying them human entitlements and making their deaths optional on the part of their caregivers. Some theorists, such as Peter Singer and Michael Tooley, do accept this position. Physical standards of personhood are even more egregious, as these would even exclude people who are fully self-aware or mentally normal but whose bodies are abnormal or deformed, such as people with cerebral palsy or phocomelia (seal-like limbs).

Adopting a justification for abortion, which would also necessarily and morally permit infanticide or the euthanasia of retarded persons, would land the progressive movement in a morass. The pro-choice movement must pursue another avenue.

Inability of Fetus to Feel Pain
Though new evidence now suggests that a fetus is insensible to pain until the third trimester, this assertion remains scientifically debatable, and would position the right of abortion precariously upon variable experimental revelations. It is also irrelevant, since the acceptability of killing a human is not contingent upon whether or not the putative victim can feel pain. Otherwise homicide would be permissible so long as murderers anesthetize their victims prior to killing them. Utilitarian theorists who base the wrongness of an action upon the pain/trauma that it causes are banged over the head with this objection: if I can kill a person without causing trauma or pain, then my murder is acceptable.

Harms of Prohibition
This is the “I think it's wrong, but criminalizing it would hurt so many women because they'll be seeking it anyway” argument, the fear of “back-alley” abortions. This argument may be substantive when it comes to consensual, “victimless” crimes (gambling or drugs), but is problematic for abortion. The predominant controversy of abortion is whether or not it has a victim, or if that victim merits coercive protection. Treating abortion as a “victimless” act from the outset is begging the question.

It is one thing to say, “I think gambling is immoral, but I will not impose morality upon others.” It is nonsensical to say, “I think homicide is immoral, but I will not impose morality upon others.” People who concede or do not dispute that abortion is homicide, but think it should be allowable because of these intolerable harms of prohibition have assumed an untenable position: that homicide is a discretionary action and that people should be allowed to do it if they think that they have an interest in doing so. Their prioritization of the interest of the person procuring the abortion is also problematic. If abortion is not distinct from homicide, why are the interests of a woman who plans to commit a homicide via abortion more important than the interests of a person planning to commit any other type of murder? Murder statutes make conditions very hazardous and dangerous for potential murderers. For crimes like these, (crimes upon another person), the potential harms befalling the potential perpetrator as a result of the statutes are irrelevant. Would you honestly care if a murderer died or suffered grievous bodily harm while attempting to commit the act? Perhaps a burdened pregnant woman is a more pitiable perpetrator, but that is an appeal to emotion which is irrelevant, and the anti-abortion movement is also adept at appeals to emotion. For this argument to have any merit, abortion must first be distinguished from homicide.

An argument based on potential negative consequences would not safeguard abortion as a right, but merely advocates abortion as a good social policy. Allowing abortion as a matter of good policy is not the same as granting abortion as a right. For a person who says, “Abortion should be a constitutional right because banning it will cause so much societal harm,” the anti-abortionists have a credible response. Policy is subject to debate and exchange, and a democratic or legislative majority is always free to say, “We disagree with your policy prediction,” or “We don't think those harms will happen,” or “We think those harms are worth it.” It does not help that the dreaded era of so called “back alley” abortions may be empirically questionable. Some state legislatures might agree that abortion is a good policy and keep it, but their decision is subject to debate and reversal. For abortion advocates to promote abortion as a good policy but then say that their policy assessment is not subject to debate or modification is contradictory and peremptory. A person cannot assert, “I have a Constitutional right to always see my policy win and always be enacted, even if the majority comes to disagree with me!” Abortion as a right requires a foundation stemming from the individual person, not a claim based upon the benefit to society at large, for in that case, all of society, even its anti-abortion segments, will have an influence.

Bodily Sovereignty
I am certain that many persons responded to the attacks upon the previous arguments by saying, “But it's different! It's the woman's body!” Yes, it is different because it's the woman's body, and this is where the viable basis for abortions rights lies. If the aforementioned arguments only hold water by invoking this argument, then those aforementioned arguments are deficient on their own. This argument is the linchpin. The previous arguments are valuable in an auxiliary capacity.

Persons are autonomous and have sovereign control over their bodies, a sphere of inviolability. Even much of the secular pro-life movement agrees with this tenet in one form or another. They just think that this sovereign control does not include terminating a fetus, which also has personal rights in their mind. Even if the fetus does have the rights of a person, a woman still has the right to abort it.

People may choose to participate in sexual acts, but consent to those acts does not constitute consent to those acts does not constitute consent to secondary, ensuing outcomes from that act (i.e. pregnancy). Some say that those who have sex do consent to secondary outcomes. A potential outcome of sex is not only normal pregnancy but also complicated pregnancy or an ectopic pregnancy, both of which can result in grievous debilitation or death. If the doctrine of tacit consent to secondary outcomes of one's sexual acts is valid, then a woman who has sex then also agrees to undergo risky and hazardous pregnancies, as they too are a potential secondary outcome of intercourse. Under this doctrine, a woman who has sex is not only signing an agreement to pregnancy, but also her potential death warrant. We must hold that consent to sex is ONLY consent to sex, not consent to secondary consequences, which must be consented to separately. When engaging in sexual intercourse, a woman has not signed a bodily waiver allowing her person to be used as a physical receptacle for another entity or person. She may therefore have the intruding baby removed, even if it results in the death of that baby. Some may ask, “If she initially consents to the pregnancy, can she be forced to go through with it even if she changes her mind?” The answer is the same for the question, “Can you consign yourself to become somebody else's servant?” I say “consign” in the sense that if you do not want to continue serving that person,can that person use the signed contract to coerce you to continue working? The answer to both questions is no. You can promise to serve a person, but cannot sign away your autonomy or bodily sovereignty since that is inalienable. A woman may initially agree to the pregnancy but then later circumstances may change her mind, just as changing circumstances may cause a person to decide to stop serving another person.

Pregnancy should be thought of as a blood transfusion or organ transplant. You have an absolute right to refuse to do those two things. Nobody has a claim upon your blood or body parts, even if you will survive normally after their extraction, and even if the other person will die without your bodily resources. A person in need of blood cannot seize you and extract a donation. Suppose you are warned not to walk in a certain area of the city, because people in need of blood roam it and seize healthy people and extract their blood with IV tubes. You walk there despite the advanced warning and one of them seizes you and starts extracting your blood and then says, “Don't disconnect it, I'll die!” The fact that you knew this could happen and that this person will die without your bodily support is irrelevant. You only consented to walk in this area. You did not consent to the bodily invasion and you can remove the connection. This argument would even be harmonious with fetal victim laws which penalize people for killing a quickened fetus, because only the woman would have the nominal claim to cause a separation to kill the baby or kill the baby to facilitate separation. If I am giving a blood transfusion but decide to stop doing so and cut the IV, I may cause the death of the blood recipient. But that is not murder, as I am just asserting my bodily rights. However, if somebody breaks into the hospital while I am giving a blood transfusion and shoots the person receiving my blood or cuts the IV, they would still be guilty of murder. The fact that the person that he/she killed was physically dependent upon me is irrelevant. The intruding person who barged in and killed the recipient did not have standing to separate the connection.

This argument may cause offense because it likens babies to vampires. It is disconcerting to view babies as parasitic, which they are, biologically. However, this is the consequence of viewing humans as independent, autonomous creatures who have interests separate from the interests of others. This is not a comprehensive doctrine which says that women should always choose abortion and should look at every fetus as an enemy, but that they have the political/legal right to end a pregnancy by removing the uninvited entity, should they think that their interests do not coincide with the attached baby's interests. However, if a woman decides that she wants to let her body be used for the interests of others (sex, pregnancy, being a wet nurse), bodily sovereignty would allow her that option as well.