Abortion: The Case for Choice, Part 1
Part 1 of a 3-part series on binary thinking, conflicting rights, bodily autonomy, potential life, and how to reduce unwanted pregnancies
Abortion is back in the headlines with above the fold coverage of the case now on the docket of the Supreme Court of the United States (SCOTUS) of Dobbs v. Jackson Women’s Health Organization, regarding the constitutionality of a 2018 Mississippi state law—the Gestational Age Act—which bans any abortion after the first 15 weeks of pregnancy except “in medical emergencies or for severe fetal abnormality.”
Most legal experts consider this case to be a direct challenge to the 1973 SCOTUS decision in Roe v. Wade that guaranteed the right of a women to have an abortion during the first trimester, following that until fetal viability at around 23 weeks, after which the state could protect its interest in the “potential life” of the fetus and regulate abortion to that end, including banning it altogether in the third trimester save for the life or health of the mother.
If overturned—and many legal commentators have suggested that this could be the case that does it—the legal right to an abortion would revert to a states’ rights issue. Some states, like California and New York, will guarantee full abortion on demand, but 12 states have passed laws that would ban abortion from the point of conception. And according to the Guttmacher Institute, as of December 2021, an additional 21 states are poised to ban or severely curtail access to abortions. This decision, expected to come down from SCOTUS next summer, will be a game changer of historic proportions.
What follows is Part 1 of a 3-part series making the case for choice based on (1) the binary-thinking fallacy of the pro-life argument that human life and personhood begins at conception (a continuous-thinking analysis shows that it does not), (2) even if we agree that a fetus is a human being what we have then is a conflicting-rights issue between the rights of the mother and the rights of the fetus, so (3) if rights are to be legally protected for one over the other, a stronger case can be made for a woman than a fetus because, (4) an actual human being and rights-bearing person must take precedence over a potential human being because, (5) the fundamental right of bodily autonomy is one that has historically been expanding to include all adult humans regardless of race or gender because, (6) left unprotected, rights-bearing groups tend to restrict the freedoms of those in non-rights-bearing groups, historically most notably of men over women. In the end I believe we can find common ground between pro-life and pro-choice advocates by focusing on how to reduce unwanted pregnancies.
The Personal and the Political
There has been, arguably, no more contentious moral issue of the past half century than abortion, where morality, politics, and science are confoundedly conflated. Moral issues are personal. Political issues are social. Scientific issues are factual. Herein lies confusion. Pro-choicers believe that whether a woman decides to abort a fetus or not is a personal moral issue in which the rights of the mother take precedence over the rights of the fetus.1 Pro-lifers want to make it a political moral issue in which the rights of the fetus take precedence over the rights of the mother and that society determines what a woman can or cannot do with her body and her fetus.2
When pro-lifers and pro-choicers square off to debate, they are often times talking at cross purposes. Pro-lifers speak of the “murder” of innocent fetuses and attack their debate opponents on the grounds that murder is wrong, as if pro-choicers accept murder as moral. In fact, pro-lifers and pro-choicers all agree that murder is immoral. What they disagree about is whether aborting a fetus constitutes murder. This apparent moral question is actually a factual question, because abortion can only be considered murder if it means taking the life of a human being, and when a fetus becomes a human in this sense of a legally protected person is a question that is difficult to resolve, as Supreme Court Justice Harry A. Blackmun noted in his decision in the 7-2 majority ruling in the 1973 Roe v. Wade case: “When those trained in the respective disciplines of medicine, philosophy and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.”
The issue, it seems to me, is more one of logic than it is of knowledge. Moral and political decisions are grounded in binary logic in which unambiguous yeses and noes determine political truth, either at the ballot box or in the legislature. Science is grounded in the continuous thinking of fuzzy logic in which ambiguous probabilities determine provisional truths. Let’s unpack this further.
When Does Life Begin?
A major obstacle to answering this question is the binary thinking that forces us to pigeonhole into two distinct categories a problem best conceived as a continuous scale. Pro-life proponents argue that human life begins at conception; before conception there is no life—after conception there is. It’s a compelling black and white argument gainsaid by the reality of life’s continuity in which we may assign a fractional probability to human life—before conception 0, the moment of conception .1, multi-cellular blastocyst .2, one-month old embryo .3, two-month old fetus .4, and so on until birth, when the fetus becomes a 1.0 human life (and legal person). It is a continuum from sperm and egg, to zygote, to blastocyst, to embryo, to fetus, to newborn infant.3
While the step from 0 to .1 may intuitively seem qualitatively different from what came before—egg and sperm—neither the zygote nor the blastocyst is an individual human (much less a person) because they might split to become twins, or develop into less than one individual and naturally abort.4 Although an eight-week old embryo has recognizable human features such as face, hands, and feet, neuroscientists now know that at that stage neuronal synaptic connections are still under development so anything even remotely resembling human thought or feelings is impossible. After eight weeks embryos begin to show primitive response movements, but between eight and 24 weeks (six months) the fetus could not exist on its own because such critical organs as the lungs and kidneys do not mature before that time. For example, air sac development sufficient for gas exchange does not occur until at least 23 weeks after gestation, and often later, so independent viability is not possible.5 It is not until 28 weeks, or approximately 77% of full-term development, that the fetus acquires sufficient neocortical complexity to exhibit some of the cognitive capacities typically found in newborns. Fetus EEG recordings with the characteristics of an adult EEG appear at approximately 30 weeks, or about 83% of full-term.6
What about pain perception and consciousness? In a 2018 article on “Personhood and Abortion Rights” in Skeptic, psychologist Gary Wittenberger presents substantial medical and scientific evidence that the perception of pain does not come online until around 20-24 weeks of gestation, and something resembling consciousness not until 28-36 weeks of gestation. Although medical advances may bump up fetus viability by a few days or weeks (a 2015 JAMA article reported that only 11% of babies born before 24 weeks survived “without major morbidity”), along this continuum we see that the fetus’s capacity for anything like human cognition does not appear until well into the third trimester. Since abortions are almost never performed after the second trimester—and before that period there is no evidence that the fetus is a thinking, feeling human individual—it is reasonable to provisionally conclude that abortion is not comparable to the murder of a conscious sentient being after birth. Thus, there is no rational or scientific justification for equating abortion with murder.
Drawing the Line: The law requires distinct categories—life or death, right or wrong—whereas science traffics in shades of gray and fuzzy fractions. When does life begin? The law demands that we pick an arbitrary point. Science assigns a fuzzy probability to life—before conception 0, the moment of conception .1, multicellular blastocyst .2, one-month-old embryo .3, two-month-old fetus .4, and so on until birth. Not until 28 weeks—between these two images of a fetus at 23 weeks (left) and 32 weeks (right)—does the fetus acquire sufficient neocortical complexity to exhibit some of the cognitive capacities found in newborns. (Courtesy of GE medical Systems, reprinted from The Science of Good and Evil by the author.)
One objection to this line of reasoning is that science and technology have so fuzzified the boundaries between what were once reasonably discrete categories (even in my fuzzy analysis) that it becomes difficult to justify precisely where to draw the line. Unborn babies are now being treated as patients, with complex surgeries being performed in the womb for such maladies as spina bifida (an opening in the spine through which the spinal cord dangerously emerges), congenital diaphragmatic hernia (the fetus’s abdominal organs merge into the chest), and congenital cystic adenomatoid malformation (cysts in the fetus’s lungs). Fetuses that would have been aborted before are now being saved, and they are treated medically as little people.7 On the other end of the spectrum, there are adults whose cognitive capacities are so severely retarded through brain damage that they cannot think at all. They may even lie comatose, completely brain dead, and yet still retain rights as humans.
My response to this argument is that most fetal surgery is done well into the third trimester, when abortions are rarely performed anyway. And brain-damaged adults already retain rights as humans, so their rights cannot be taken away.
Potential Lives, Actual Lives, and Bodily Autonomy
Still, the argument is made that a fetus is a potential human being, since all of the characteristics that make us persons are front-loaded into the genome and unfold during embryological development. Agreed, but potentiality is not the same as actuality, and moral principles must apply first and foremost to actual persons over potential persons. Given the choice between granting rights to an actual person (an adult woman) or a potential person (her fetus), it is rational to choose the former on the grounds of both reason and compassion. We know adult women can think and feel; we don’t know that about fetuses. Although more than half the states in the US now have laws to protect unborn victims from violence—as in the Unborn Victims of Violence Act that treats the killing of a pregnant woman and her fetus as a double homicide—the law does not treat fetuses and adults alike in any other manner. Once again binary thinking lures us into treating a mother and her fetus as the same, whereas continuous thinking allows us to see the substantive differences.
The reason has to do with bodily autonomy, or the right to self-determination of one’s self. The abolition of slavery and torture was ultimately brought about by the recognition and acceptance of the right to bodily autonomy and self-determination, as was the expansion of rights during the movements to achieve civil rights, women’s rights, gay rights, and broader LGBTQ rights. What I do with my body is no one else’s business, and the mostly right-leaning pro-life movement embraces this principle in most other areas. Conservatives and Christians, for example, resist vaccine mandates under this principle—as witnessed in the “my body, my choice” signage—and they hold the Second Amendment right to own guns for self protection as sacrosanct. Consistency in applying the principle of bodily autonomy and self-determination should further nudge pro-lifers toward the pro-choice position.
Herein we find another important distinction to make in the abortion debate, and that is the difference between a human and a person. A human is a member of the species Homo sapiens. A person is a member of a social group or society with legal rights and responsibilities and with moral value. Even if one could justify a fetus as being a human (even if only a potential human), that still does not make it a person. What makes it a person is the granting of legal rights and responsibilities and moral value by the laws governing that society. Pro-lifers are encouraged by changes in the law in many states that grant personhood rights to the unborn, in cases where a pregnant woman has been murdered and the fetus dies as well. No less than 28 states now criminalize harm to a fetus, and many more are moving to pass the Unborn Victims of Violence Act, which was changed in 2003 to the Laci and Conner’s Law after the notorious murder trial of Scott Peterson, charged with double homicide in the killing of his wife and unborn child.8 Legally, if killing a mother and her fetus is double murder, then killing a fetus by itself is single murder. This would make abortion a crime of murder.
This is a very knotty problem to unravel. We cannot first ask a fetus if it would like to be aborted or not; we can, however, run that thought experiment by imagining ourselves in the position of an unborn potential human who would be granted personhood rights and dignity value upon birth. Presumably, most of us would choose life. By what I call the ask-first principle (developed in The Science of Good and Evil), we would have to conclude that abortion is immoral. However, although asking the unborn can never be more than a thought experiment, there is someone we can ask first, and that is the pregnant woman, who is both a human and a person who already has all the rights, privileges, and moral dignity values bestowed upon her by society. Given the choice between asking the fetus in a thought experiment and actually asking the woman what she thinks should be done, it is logical to give the moral nod to the woman. Given the choice between the potential rights of the fetus and the actual rights of the woman, it makes more sense to go with what already exists in fact over what might exist in potential.
Then, we can turn to the liberty principle and consider the historical treatment of women, which I will develop further in Part 2 of this series. For now, let me close Part 1 with the argument I made in The Science of Good and Evil:
The trend over the past several centuries has been to grant greater freedom, autonomy, and self-determination to minorities, children, and women. Modern civilizations have systematically outlawed slavery, freed children from the burden of excessive labor, and granted women the same rights and privileges as those given to men. We have done so under the principle of liberty: expanding freedom and autonomy to as many members of our species as possible. One of the most important sources of freedom and autonomy for women has been control over their bodies, especially in relation to reproduction. Social and political advances, coupled to scientific and technological discoveries and inventions, have increasingly provided women with greater amounts of reproductive autonomy and control, which, in turn, leads to the overall, increase of liberty for women in general. To take away an important source of reproductive control from women by outlawing abortion would be a significant step backward in the historical trajectory of liberty. Thus, given the choice between increasing the liberty of an adult person and the liberty of an unborn fetus, it makes more sense—historically, legally, logically, and morally—to grant that liberty to the adult person, the woman.
Since conservatives tend to identify as liberty-loving individualists, perhaps this line of reasoning will soften their liberty-restricting pro-life stance.
All of this ratiocination, it must be said, is not to claim that abortion is moral, only that is it not immoral. And this brings us back to where we began in making a distinction between individual and political morality. If abortion is not murder, then it is not illegal from a political position. But if a woman decides that even though having a child may burden her physically and financially it is still more important to her to grant life and liberty to her unborn child, then that is her choice to make, not the state’s. In other words, one may be politically pro-choice and personally pro-life, which is my position. In the end, abortion must remain a personal moral choice.
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Michael Shermer is the Publisher of Skeptic magazine, a Presidential Fellow at Chapman University, the host of The Michael Shermer Show podcast, and the author of numerous New York Times bestselling books including: Why People Believe Weird Things, The Science of Good and Evil, The Believing Brain, The Moral Arc, Heavens on Earth, and Giving the Devil His Due. His next book is on conspiracy theories and why people believe them.
Wolf, N. 1995. “Our Bodies, Our Souls.” The New Republic, October 16. In this issue feminist author Naomi Wolf shocked the pro-choice movement by claiming that the fetus at all stages is a human individual and therefore abortion is immoral (although she still supports free choice). In Wolf’s 6,700-word essay, however, there is not a single scientific fact presented in support of her claim for fetal human individuality. Instead we get emotional references to “lapel pins with the little feet,” “framed sonogram photos,” and “detailed drawings of the fetus” from the popular pregnancy book What to Expect When You’re Expecting. With similar shortcomings, in a 1995 PBS Firing Line debate, Arianna Huffington claimed that scientists have proven that life begins at conception, yet no facts were offered in support of this claim.
Roy Rivenburg, a writer for the Los Angeles Times, succinctly summarized the pro-choice and pro-life positions: Rivenburg, R. “A Decision Between a Woman and God.” Los Angeles Times, May 24. For a more recent pro-life defense see: Douthat, Ross. 2021. “The Case Against Abortion.” The New York Times, Nov. 30. https://nyti.ms/3dsWpXf
See, for example, the Amici Curiae Brief in Support of Appellees. 1988. William L. Webster, et al., Appellants v. Reproductive Health Services, et al., Appellees.
See, for example: Pleasure, Dhand, and Kaur. 1984. “What is the Lower Limit of Viability?” American Journal of Diseases of Children, 138: 783; Milner and Beard. 1984. “Limit of Fetal Viability.” Lancet, 1: 1079; Koops, Morgan and Battaglia. 1982. “Neonatal Mortality Risk in Relation to Birth Weight and Gestational Age: Update.” Journal of Pediatrics, 101: 969-977.
Beddis, Collins, Levy, Godfrey and Silverman. 1979. “New Technique for Servo-Control of Arterial Oxygen Tension in Preterm Infants.” Archives of Disease in Childhood, 54: 278-280.
Flower, M. 1989. “Neuromaturation and the Moral Status of Human Fetal Life.” In Abortion Rights and Fetal Personhood. Doerr and Prescott (eds.).
Kalb, C. 2003. “Treating the Tiniest Patients.” Newsweek, June 9, 48-51.
Rosenberg, D. 2003. “The War Over Fetal Rights.” Newsweek, June 9, 40-47.
I also find abortion near-insoluble. Recognition of personhood is at least challenging, and likely not simple not a person-then a person. And such a consideration has to be part of any individual and societal decisions.
But I also challenge similar yes or no, all or nothing significance of the imposition on the mother, on two issues.
First, would we even have this endless, national debate if pregnancies lasted, say, 48 hours? Or, at the other extreme, if a pregnancy was a permanent debilitating state? It then comes down to arguing about what length of term is too much--much like discussing what length of term translates to the threshold of personhood.
Second, I see a significant difference between an imposition that occurs randomly and one that is at least partially self-induced. Almost every woman who becomes pregnant has at least a working knowledge of the bio-mechanics involved. And many if not most choose to participate. I will also guess that most women, and partners, do not want pregnancy as an outcome.
But all people would like to enjoy actions without consequences. Does that desire automatically negate responsibility? If I choose to do something that leads to impairment, either physically or financially, and I wish I was not, then what rights do I have?
MS1: And brain-damaged adults already retain rights as humans, so their rights cannot be taken away.
GW1: Their rights could be taken away if the law allowed this. See above. Why should permanently comatose patients be considered to be persons?
MS1: Still, the argument is made that a fetus is a potential human being, since all of the characteristics that make us persons are front-loaded into the genome and unfold during embryological development.
GW1: The early fetus is a potential human being, but the later fetus is an actual human being. (I equate “human being” with “human person.”)
MS1: Given the choice between granting rights to an actual person (an adult woman) or a potential person (her fetus), it is rational to choose the former on the grounds of both reason and compassion.
GW1: But, some fetuses are actual persons and not potential persons, and they have rights just like the mother does. And in fact, some rights like the right to life should take priority over the right to bodily autonomy. Why? Because no rights are meaningful without life.
MS1: We know adult women can think and feel; we don’t know that about fetuses.
GW1: I think we do know it about late fetuses. Babies can discriminate the voice of their mother, which they heard in the womb, from other voices they did not hear in the womb. There is even one study showing that babies can discriminate a piece of literature read to them in the womb from one not read to them in the womb. Why can they do this? Because at some point in their development in the womb they acquire consciousness, the ability to think, and memory.
MS1: Once again binary thinking lures us into treating a mother and her fetus as the same, whereas continuous thinking allows us to see the substantive differences.
GW1: But “Is it a person or not?” is a binary question, and there is nothing wrong with the question. Even though the acquisition of consciousness might occur over the course of an hour, we can easily take that into account in making a binary decision about personhood.
MS1: What I do with my body is no one else’s business, and the mostly right-leaning pro-life movement embraces this principle in most other areas.
GW1: But what you do with your body is everybody’s business if you use your body to harm or kill others. This is what can happen against fetal persons.
MS1: Even if one could justify a fetus as being a human (even if only a potential human), that still does not make it a person.
GW1: From the zygote stage it is a human organism, but it is not a human person until it acquires the capacity for consciousness later on in the womb.
MS1: However, although asking the unborn can never be more than a thought experiment,...
GW1: Well it depends on what you mean by “asking.” Is it not possible to “ask” without words? Suppose we place pregnant women in a scanner such that we can monitor the activation of brain areas of the fetus at different weeks from conception. Suppose we present a distinct tone to the fetus and we monitor activity in its auditory cortex. I predict that we will get a particular curve when percentage of fetuses with an activated auditory cortex is plotted on the Y-axis against weeks since conception on the X-axis. It will be an S-shaped curve, going from 0% to 100% in the space of maybe two weeks. This is a testable hypothesis. By this procedure we can “ask” the fetus “Are you conscious of this tone?” without using words.
MS1: Given the choice between asking the fetus in a thought experiment and actually asking the woman what she thinks should be done, it is logical to give the moral nod to the woman.
GW1: Not if the fetus is also a person. Possession of a language is not a necessary feature of a current person. But possession of the current capacity for consciousness is.
MS1: Given the choice between the potential rights of the fetus and the actual rights of the woman, it makes more sense to go with what already exists in fact over what might exist in potential.
GW1: Using your argument, white slave owners might have said “Given the choice between the potential rights of blacks and the actual rights of whites, it makes more sense to go with what already exists in fact over what might exist in potential.” This is fallacious reasoning.
GW1: But the fetus should be assigned actual rights when it becomes a person in the womb. Then you may get a conflict in rights between the fetal person and the mother. We must have moral rules to resolve those conflicts.
MS1: To take away an important source of reproductive control from women by outlawing abortion would be a significant step backward in the historical trajectory of liberty.
GW1: We should not outlaw abortion any more than we should outlaw gun ownership. We should regulate and limit both.
MS1: All of this ratiocination, it must be said, is not to claim that abortion is moral, only that is it not immoral.
GW1: Sometimes abortion is moral and sometimes it is immoral. For sure it is immoral when it violates the rights of any person involved.
MS1: If abortion is not murder, then it is not illegal from a political position.
GW1: Whenever abortion is morally wrong and it results in harm or death, then it should be illegal. That is a legitimate political position.
MS1: In a 2018 article on “Personhood and Abortion Rights” in Skeptic, psychologist Gary Wittenberger presents substantial medical and scientific evidence that the perception of pain does not come online until around 20-24 weeks of gestation, and something resembling consciousness not until 28-36 weeks of gestation.
GW1: That is a little different from what I concluded in the article. This is an exact quote: “A comprehensive review of the relevant scientific literature remains to be done. However, based on the evidence presented here, general conclusions may be reached. The best estimate for the onset of consciousness in the fetus (especially the beginning of pain perception) is at 27 weeks gestational age which is roughly 25 weeks from conception.”