This post is drawn from Ari Armstrong’s and my new policy paper: The ‘Personhood’ Movement Is Anti-Life: Why It Matters that Rights Begin at Birth, Not Conception. I’m currently posting the full paper as a series of blog posts. You can read the full paper in PDF format or HTML format.

The ‘Personhood’ Movement Is Anti-Life: Why It Matters that Rights Begin at Birth, Not Conception

By Ari Armstrong and Diana Hsieh, Ph.D
A policy paper written for the Coalition for Secular Government (www.SecularGovernment.us)
Published on August 31, 2010

Individual Rights and Abortion

…

Rights in Pregnancy

On its surface, the secular argument for “personhood” might seem so simple as to be unassailable. Yet in fact, that simplicity conceals fatal defects in its implicit view of the nature and source of rights. Rights are not inherent in human biology: the right to life is nowhere stamped on our DNA. Rather, rights are principles identifying the freedoms of action required for human flourishing in a social context. As we shall see, such rights can and do apply to born infants, but they cannot be legitimately or coherently extended to embryos or fetuses.

The basic biological facts cited in the secular argument for “personhood” laws are not controversial. The fertilization of an egg by a sperm creates a new human life, distinct from that of its genetic parents. By an active, complex, and gradual process of development, that zygote may grow into an embryo and fetus, emerge from the womb as an infant, develop through childhood, mature into an adult, and finally age until death. However, contrary to the argument for “personhood,” that process of biological development does not establish that the zygote, embryo, or fetus is a human person with a right to life. Why not?

“Personhood” advocates assume that each and every human life, whatever its qualities or situation, must be a person too. They offer no argument for or explanation of that view. Yet in fact, the concepts are distinct, such that they need not perfectly coincide. In other words, the concepts of “person” and “rights” may not apply to all forms and stages of human existence. The distinction is simple. The concept of “human life” or “human being” used in the first half of the argument for “personhood” is purely biological. It identifies an organism as part of the human species. The concept of “person” used in the second half of the argument for “personhood” concerns politics. It identifies some entity as entitled to claim rights. To slide between these two distinct concepts using the term “human being”–as “personhood” advocates consistently do–is to commit the fallacy of equivocation.

The scope of the political concept “person” cannot be specified by science. That is a question for philosophy, to be answered based on an objective theory of the nature and source of individual rights. That these biological and political concepts might not coincide perfectly is hardly appalling, as “personhood” advocates suggest.[143] Rather, the very purpose of the political concept “person” is to enable us to specify the scope of rights apart from any rigid biological criteria.

The advocates of “personhood” dogmatically assert that every human life is a person for a very simple reason: their secular defense of “personhood” is mere veneer on a deeply religious worldview whereby rights can only be understood as gifts arbitrarily bestowed by God. By creative and selective readings of their scriptures, combined with distorted appeals to America’s founding principles, the advocates of “personhood” believe that God bestows the right to life at conception. That is why they consider embryos and fetuses persons. However, that is a matter of faith, not rational conviction–and unsurprisingly, the facts show otherwise. Hence, even the secular argument for “personhood” is ultimately religious at its root.

To understand the rights applicable to pregnancy, we must sketch an objective theory of rights. In short, the rights of persons are not gifts from a divine creator, nor found in scripture, as conservatives often imagine. Nor are rights mere entitlements and permissions bestowed and rescinded by majority vote, as modern liberals suppose. Rather, rights are principles identifying our proper freedom of action. And they are rooted in facts about human nature, particularly the conditions for survival and flourishing in society.[144] How so?

Humans cannot survive and flourish by tooth and claw–nor by our feelings, instincts, or faith. We live by exercising our distinctive capacity to reason in order to produce the values required for life–or we perish. That simple fact of human nature is the source of our rights. As Ayn Rand explains:

Since man’s mind is his basic tool of survival, his means of gaining knowledge to guide his actions–the basic condition he requires is the freedom to think and to act according to his rational judgment. …If men are to live together in a peaceful, productive, rational society and deal with one another to mutual benefit, they must accept the basic social principle without which no moral or civilized society is possible: the principle of individual rights.”[145]

So what are rights? Again, Ayn Rand explains:

A “right” is a moral principle defining and sanctioning a man’s freedom of action in a social context. There is only one fundamental right (all the others are its consequences or corollaries): a man’s right to his own life. Life is a process of self-sustaining and self-generated action; the right to life means the right to engage in self-sustaining and self-generated action–which means: the freedom to take all the actions required by the nature of a rational being for the support, the furtherance, the fulfillment and the enjoyment of his own life. (Such is the meaning of the right to life, liberty and the pursuit of happiness.)[146]

In essence, “to recognize individual rights means to recognize and accept the conditions required by man’s nature for his proper survival.”[147]

On this objective theory of rights, a person’s rights are absolute and inalienable, yet they arise in and pertain to a social context. That’s because individual rights are the most basic principle of justice in a society. They’re neither innate qualities–nor gifts bestowed by divine powers, constitutional tradition, political leaders, or voters. Moreover, genuine rights cannot conflict, nor require the sacrifice of some persons to others. That’s because rights protect each person’s power to pursue his own life and happiness, free of forcible interference from others. Rights are freedoms to action, not entitlements to goods and services provided by others, nor duties imposed on others.

Given this understanding of the nature and source of rights, we can now ask: Is an embryo or fetus a person with a right to life, like an infant? No. To see why not, we must compare its basic nature and situation as it develops through pregnancy to that of a born infant.[148]

From the moment of fertilization to its implantation in the womb a few days later, the zygote consists of a few largely undifferentiated cells. It is invisible to the naked eye. It has no human organs, and no human form. It has no brain, and so no capacity for awareness or emotions. It is far more similar to a few skin cells than an infant. Moreover, the zygote cannot develop into a baby on its own: its survival beyond a few days requires successful implantation in the lining of the woman’s uterus. If it fails to do that, it will be flushed from her body without anyone ever knowing of its existence.

If the embryo matures normally after implanting into the lining of the uterus, it gradually develops primitive organs. Yet its form is not distinctively human in the early stages: it looks very similar to the embryo of other species.[149] As it develops its distinctive human form, the fetus remains wholly dependent on the woman for its survival. Even with the most advanced medical technology, many fetuses born in the 22nd to 25th week of pregnancy will die, and many of those that survive will suffer from “some degree of life long disability, ranging from minor hearing loss to blindness, to cerebral palsy, to profound intellectual disability.”[150] So before viability, the fetus is not capable of an existence independent of the pregnant woman.

After 26 weeks, when a fetus would be viable outside the womb, its organs continue to mature in ways critical to its survival and well-being after birth. It is aware, but that awareness is limited to the world inside the womb. Most importantly, however, so long as the fetus remains within the woman, it is wholly dependent on her for its basic life-functions. It goes where she goes, eats what she eats, and breathes what she breathes. It lives as she lives, as an extension of her body. It does not interact with the outside world. It is wholly contained within and dependent on her for its survival. So if the woman dies, the fetus will die too unless delivered quickly. The same is true if the fetus’s life-line to her body is disrupted, such as when the umbilical cord forms a tight knot.[151] A fetus cannot act independently to sustain its life, not even on the basic biological level possible to a day-old infant. It is thoroughly and solely dependent on the woman in which it lives.

That situation changes radically at birth. A baby lives his own life, outside his mother. Although still very needy, he maintains his own biological functions. He breathes his own air, digests his own food, and moves on his own. He interacts with other people as a whole and distinct creature in his own right, not merely as a part of a pregnant woman. He can leave his mother, either temporarily or permanently, to be cared for by someone else.

These important differences between the mode of life of the zygote, embryo, and fetus on the one hand, and the born infant on the other, show that the former cannot be persons. Rights, in other words, cannot be applied until birth. Why not?

First, the utter biological dependence of the zygote, embryo, and fetus on the pregnant woman shows that, until birth, it is not yet living its own life, but rather partaking in the life of the woman. It exists as part of the pregnant woman, not as an individual in its own right. Yet rights pertain only to individuals, not parts thereof. Such is the case, even when the fetus would be viable outside the womb. Even then, it is only a potential individual, not an actual one. The fetus only becomes an actual individual when birth separates it from the woman’s body. Until then, it cannot be a person with a right to life. The pregnant woman, in contrast, is always an individual with full rights.

Second, the zygote, embryo, or fetus does not exist in a social context until birth. Due to its enclosure within the body of the pregnant woman, the new life cannot interact with other people: it experiences only muffled sounds and indirect pressure through the woman. It cannot be touched or handled, nor can it even engage in the primitive communication possible to infants. Even the pregnant woman cannot directly interact with her fetus, as she will do with her newborn infant. Until birth, she can only act as a biological host to the life inside her, not as a mother. A woman, in contrast, lives in society whether pregnant or not–and her rights are therefore absolute and inalienable.

Given these facts, to ascribe any rights to the zygote, embryo, or fetus before birth is a profound error. It is not a person–or rather, it is only a potential person, not an actual person. To suppose that mere potentiality is sufficient is to commit the fallacy of the continuum. The fact that a zygote may develop into a born infant does not prove the zygote to be the same thing as a born infant–any more than an acorn is an oak tree and a caterpillar is a butterfly. As philosopher Leonard Peikoff observes, treating a zygote–a potential person–as though it were an actual person makes no more sense than treating an adult human–a potential corpse–as though he were an actual corpse.[152]

The conclusion that rights begin at birth is confirmed by the serious conflict between any rights ascribed to the embryo or fetus before birth with the rights of the pregnant woman.

The pregnant woman’s most fundamental right–her right to life–is not merely a bar against murdering her. Her right to life encompasses all the actions that she deems necessary to promote her flourishing and happiness, provided that she does not initiate the use of force against others (and hence violate their rights). Her right to life protects her capacity to act by her own rational judgment, in pursuit of her own self-interest–and such is the very purpose of rights.

The advocates of “personhood” deny the pregnant woman’s right to life in asserting rights for the embryo and fetus. Abort73.com, for example, frames the issue in terms of competing rights:

Politically speaking, abortion is an issue that involves competing rights. On the one hand, you have the mother’s right not to be pregnant. On the other hand, you have the baby’s right not to be killed. The question that must be answered is this. Which right is more fundamental? Which right has a greater claim? Abortion advocates argue that outlawing abortion would, in essence, elevate the rights of the unborn over and above those of the mother. “How can you make a fetus more important than a grown woman?”, they might ask. In reality, outlawing abortion wouldn’t be giving unborn children more rights, it would simply gain for them the one most fundamental right that no one can live without, the right to life.[153]

This analysis is utterly wrong. Rights are trumps: they identify the scope and limits of each person’s freedom of action in society. To assert conflicts between rights is to confess that one’s theory of rights contradicts itself, and a self-contradictory theory of rights cannot be true.

Yet that analysis by Abort73.com is correct, in one sense. By the very nature of pregnancy, any rights ascribed to the embryo or fetus would conflict with the rights of the mother to her own body. Since pregnant women are clearly persons with full rights, that fact only confirms that embryos and fetuses are not persons with rights. Moreover, Abort73.com acknowledges (to some extent) that pregnant women would be obliged to sacrifice themselves to provide life support to the embryo and fetus: “If a baby is not to be aborted, then the pregnant mother must remain pregnant. This will also require of her sickness, fatigue, reduced mobility, an enlarged body, and a new wardrobe. Fortunately, it is not a permanent condition.”[154] Yet that demand for forced sacrifice contradicts the very nature and purpose of rights. How so?

Rights enable people to flourish by ensuring that they interact by peaceful, voluntary, and mutually beneficial trade–rather than violence, theft, and fraud. In particular, the right to life guarantees one’s own freedom of action in pursuit of one’s life: it’s not a duty imposed on others to preserve one’s life. The responsibility of care for another can only be acquired by the voluntary consent of the care-giver, such as when a man takes a friend out to sea on his boat for a week or when parents take an infant home from the hospital rather than abandoning it under a “Safe Haven Law.”[155] However, to grant rights to the embryo and fetus would be to impose such an unjust duty on pregnant women. Regardless of her own plans for her life, every pregnant woman would be obliged to provide life-support to the embryo and fetus, perhaps at great personal cost to herself and her family. That’s not freedom; it’s slavery.

Significantly, the inalienable right of the pregnant woman to her own life–and hence, her own body–confirms that even a viable fetus cannot be properly regarded as a person with rights. Undoubtedly, for a pregnant woman to seek to abort a healthy, viable fetus without some overriding concern (such as her own health) would be a bizarre and possibly vicious act, e.g., if done to spite the father or due to evasion of the pregnancy for months. Yet the fact remains that even when a woman is deeply committed to her pregnancy, serious conflicts can arise between her welfare and that of the fetus, such as when receiving emergency medical treatment during childbirth or after a car accident. Due to such cases, the law must reflect the fact that the woman has an absolute right to make her own choices about her body. The potential for such conflicts only ends once the fetus is born, when the woman and baby become–and can be treated as–fully separate individuals.

Of course, when a woman wants to bear a child, she will value her fetus tremendously. She will do all she can to ensure the birth of a healthy baby, protecting it from myriad harms. Moreover, she has every right to expect that the police and courts will protect her and her fetus from criminal assault. Indeed, the law should severely punish criminals who intentionally harm a woman and her fetus. However, the only rational basis for such laws is the woman’s rights to her own body–coupled with a recognition of the value she places on her fetus–not any false rights attributed to the fetus. Just as the fetus depends on the woman’s body for its survival, so it depends on the woman’s rights for its legal protections.

In sum, the fundamental biological differences between a zygote, embryo, or fetus versus an infant show that a woman has every right to terminate an unwanted pregnancy–for any reason. The pregnant woman is a human person with the inalienable rights to life, liberty, and the pursuit of happiness. So is an infant. However, neither a zygote, nor an embryo, nor a fetus is a person. It has no right to life-support from the pregnant woman. For the state to force a woman to provide such life-support under penalty of law would be a gross violation of her rights. Yet that’s precisely what “personhood” measures would demand–based on the irrational fantasy that a zygote has the same moral and legal standing as an infant.

Read the full paper in PDF format or HTML format.

This post is drawn from Ari Armstrong’s and my new policy paper: The ‘Personhood’ Movement Is Anti-Life: Why It Matters that Rights Begin at Birth, Not Conception. I’m currently posting the full paper as a series of blog posts. You can read the full paper in PDF format or HTML format.

The ‘Personhood’ Movement Is Anti-Life: Why It Matters that Rights Begin at Birth, Not Conception

By Ari Armstrong and Diana Hsieh, Ph.D
A policy paper written for the Coalition for Secular Government (www.SecularGovernment.us)
Published on August 31, 2010

Individual Rights and Abortion

…

Today’s “Pro-Choice” Rhetoric

Today’s most prominent defenders of abortion rights follow in the footsteps of Roe v. Wade. By and large, they offer superficial and pragmatic defenses of abortion rights based on vague appeals to privacy, coupled with accounts of the harms inflicted by abortion bans.

The websites of the two most prominent pro-choice advocacy groups in America–Planned Parenthood and NARAL Pro-Choice America–offer no substantive defense of the right to abortion. They simply assert a broadly pro-choice position, without grappling with the difficult moral and legal questions raised by abortion. For example, the website of Planned Parenthood’s “Action Center” offers the following as their sole defense of “abortion access”:

Our primary goal is prevention–reducing the number of unintended pregnancies, especially the alarmingly high number of teenage pregnancies, in the United States. At the same time, to protect their health and the health of their families, women facing an unintended pregnancy must have access to safe, legal abortion services without interference from the government. Decisions about childbearing should be made by a woman in consultation with her family and doctor–not by politicians.[118]

Only a few of the organization’s posted “Research Papers” concern abortion, and those that do focus solely on the history of abortion rights, the safety of abortion, and abortion statistics.[119] Similarly, NARAL’s only substantive document pertaining to abortion rights posted to its website is an eleven-page “fact sheet” on “The Safety of Legal Abortion and the Hazards of Illegal Abortion.”[120]

The failure of these two most prominent pro-choice groups to address the philosophic questions surrounding abortion does not bode well for abortion rights in America, particularly in light of the rise of a fervent “personhood” movement. That’s because neither vague appeals to the privacy rights of pregnant women nor the harms wrought by abortion bans are of any importance if conception creates a person with a right to life. Why not?

First, if embryos and fetuses are persons, then a pregnant woman cannot claim that her decision to terminate her pregnancy should be respected as “private.” She would be obliged to respect the rights of the innocent person within her–and if she failed to do so, the state could and should intervene. To seek an abortion would not be a “private medical decision” but rather akin to hiring a hit man.

Second, if embryos and fetuses are persons, then the pregnant woman would be obliged to endure any financial burdens, health problems, or emotional strain caused by the pregnancy. The right to life of the embryo or fetus would override every such concern, except perhaps the woman’s own life. To abort an embryo or fetus due to inconvenience or hardship in pregnancy would be just as horrifying as suffocating one’s elderly parents due to difficulties in providing them care.

Third, if embryos and fetuses are persons, then women who suffer terrible complications from illegal abortions have only themselves to blame. To demand legal abortion on that basis would be as bizarre as legalizing assault or rape to prevent perpetrators of those crimes from injuring themselves. The law should protect the victim of the crime (i.e., the embryo or fetus) not the perpetrator (i.e., the pregnant woman).

In sum, the standard pro-choice arguments for abortion rights, drawn from Roe v. Wade, cannot withstand the basic claim of “personhood” advocates that fertilization creates a new human person with its own right to life. As Christopher Kurka, the sponsor of the “personhood” initiative in Alaska said, “If…we recognize the unborn as persons, then a woman’s right to choose or a right to privacy doesn’t matter [just like] she doesn’t have a right to kill her child after it’s born.”[121]

The opinion of the Court in Roe v. Wade acknowledges its own weakness against “personhood” claims openly: “If this suggestion of personhood is established, the [pro-choice] case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the [Fourteenth] Amendment.” The advocates of “personhood” have made much of that concession, citing it frequently as the source of their legal strategy.[122] In light of that, the dependence of pro-choice groups on the precedents set by and arguments of Roe v. Wade must be regarded as dangerous. If overturned–or even challenged on its basic assumptions–abortion rights would be left without any defense. That is the result the “personhood” movement strives to accomplish.

Unfortunately, the standard-bearers of the pro-choice movement have not risen to the challenge posed by the “personhood” movement–not even when faced with Colorado’s Amendment 48 in 2008 and Amendment 62 in 2010. Instead, they have declined to state any definite positions on the extent of abortion rights or offer any substantive arguments for such rights.

For example, “Protect Families, Protect Choices,” the major pro-choice coalition against “personhood” measures in Colorado, effectively campaigned against Amendment 48 in 2008 on the basis of its practical consequences. Yet its often-repeated campaign slogans–”It Simply Goes Too Far” in 2008 and “It Still Goes Too Far” in 2010–cede moral ground to the opponents of abortion. They suggest a compromise, as if some restrictions on abortion might be proper, albeit not the full ban demanded by “personhood” advocates. Perhaps the embryo or fetus should be granted legal rights in the third trimester. Perhaps abortions should be permitted only in cases of rape, incest, deformity, or risk to the life of the woman. Yet surely coalition members like NARAL Pro-Choice Colorado and Planned Parenthood of the Rocky Mountains would oppose any such restrictions on abortion.[123]

Even when directly challenged to state a position on when rights begin in human life, spokespersons for “Protect Families, Protect Choices” skirted the issue. For example, in an online chat for the Rocky Mountain News, Crystal Clinkenbeard said:

It is incredibly hard to describe a blanket time when constitutional rights should apply. Reasonable people disagree passionately about when life begins. Amendment 48 does nothing to [resolve] that difficult social issue. Instead, it is more divisive. That kind of decision needs to be left to individuals to follow their own moral, philosophical beliefs.[124]

That answer is not mere evasion. It’s wrong in a deeper way, in that it suggests that abortion rights can be founded on skepticism and relativism.

The most basic function of any government is to protect rights, and that requires constitutional provisions and laws specifying the nature and extent of rights. For the government to adopt a seemingly neutral stance on claims of rights, such that people would have to act based on their own opinions about who has what rights, would be anarchy. In theory, the pro-choice woman would be entitled to terminate her pregnancy, in accordance with her beliefs–just as the anti-abortion activist would be entitled to stop her by force, in accordance with his beliefs. The result would be violent conflict. In practice, however, such neutrality about rights usually amounts to an implicit denial of rights, in that the government would refrain from recognizing or protecting them. Yet the government might attempt to accommodate opposing views–and hence adopt a compromise position–exactly as it did in Roe v. Wade. Then, instead of the enjoying the benefit of sound jurisprudence, a society must endure persistent simmering political conflict.

“Pro-choice” advocates may seem to achieve their goals by this approach, because embryos and fetuses are not granted rights. Yet far from securing abortion rights, these skeptical arguments undermine their very foundation. Skepticism is an illusory basis for rights, easily defeated by even barely plausible arguments for “personhood.” Moreover, such skepticism sets a dangerous precedent. Just imagine, for example, the violence that would be unleashed against innocent people if a government allowed people to “follow their own moral, philosophical beliefs” about the rights of women, gays, immigrants, and the elderly on the grounds that their rights constitute a “difficult social issue.”

The government must take a stand on claims of rights. If embryos and fetuses are persons with rights, the government must actively protect them from harm. Conversely, if no such rights exist, then the government must actively protect women seeking abortions and the doctors who perform them from obstruction and violence by anti-abortion activists. People are only entitled to “follow their own moral, philosophical beliefs” in choosing whether to terminate a pregnancy or bring it to term if embryos and fetuses are not persons with a right to life. Yet that is the very question that these prominent pro-choice activists do not discuss, even when directly challenged by the “personhood” movement.

Ultimately, “personhood” measures are not wrong because they are too extreme, too divisive, or too intrusive–as typical pro-choice activists are wont to claim. Instead, they’re wrong because embryos and fetuses are not human persons with the right to life. To understand why that’s so, we must examine the core arguments for the “personhood” of embryos and fetuses.

Read the full paper in PDF format or HTML format.

This post is drawn from Ari Armstrong’s and my new policy paper: The ‘Personhood’ Movement Is Anti-Life: Why It Matters that Rights Begin at Birth, Not Conception. I’m currently posting the full paper as a series of blog posts. You can read the full paper in PDF format or HTML format.

The ‘Personhood’ Movement Is Anti-Life: Why It Matters that Rights Begin at Birth, Not Conception

By Ari Armstrong and Diana Hsieh, Ph.D
A policy paper written for the Coalition for Secular Government (www.SecularGovernment.us)
Published on August 31, 2010

Individual Rights and Abortion

As seen in detail in the prior section, if the agenda of the “personhood” movement were adopted and enforced by law, women and men would suffer serious harms, many permanent and some even life-threatening. These dire effects of “personhood” laws are no accident. They are the predictable result of violating the rights of true persons by fabricating rights for embryos and fetuses. Contrary to the assertions of “personhood” advocates, rights begin at birth. Only then does the newly born infant become a distinct human person with a right to life.

These truths about the origin of rights have been obscured by the facile semantic arguments in favor of “personhood,” as well as by the inadequate and misguided arguments of today’s typical defenders of abortion rights. In fact, rights are neither grants from God, nor favors from the Supreme Court. In particular, abortion rights, properly understood, are not based on a woman’s supposed “right to privacy,” nor subject to limitation by “state interests,” as ruled in Roe v. Wade. And embryos and fetuses cannot be granted rights based on their potential to develop into human persons. The proper view of rights during pregnancy is based on fundamental facts about human nature. Those facts dictate that only pregnant women–not embryos or fetuses–have rights.

The Compromise of Roe V. Wade

In Roe v. Wade, the court upheld abortion rights based on a “right to privacy” but limited those rights by “state interests.” Of laws that forbid abortion except to save the life of the woman, the court held:

[Such laws] violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman’s qualified right to terminate her pregnancy. Though the State cannot override that right, it has legitimate interests in protecting both the pregnant woman’s health and the potentiality of human life, each of which interests grows and reaches a “compelling” point at various stages of the woman’s approach to term.[117]

In practice, the court ruled that states must leave abortion to “the medical judgment of the pregnant woman’s attending physician” during the first trimester. Thereafter, state interests in the health of the mother and the fetus could override privacy rights. So in the second and third trimesters, states could “regulate the abortion procedure in ways that are reasonably related to maternal health.” Also, when the fetus becomes viable outside the womb, states could “regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother”–due to their “interest in the potentiality of human life.”

The court’s decision was a compromise between “pro-choice” and “pro-life” positions. It permitted abortion, but only under certain conditions and subject to much state regulation. The decision denied the claim that “the fetus is a ‘person’ within the language and meaning of the Fourteenth Amendment.” Yet at the same time, it rejected the principle that “the woman’s right is absolute” such that “she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses.” It focused on the well-being of the mother, yet sought to protect the viable fetus too. And while the court refused to say that “a new human life is present from the moment of conception,” that was only because it declined to “resolve the difficult question of when life begins.”

The court’s rationale for these compromises was murky, to say the least. The majority opinion asserted an undefined “right to privacy” based on “the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action.” The opinion declared that right “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy,” yet did not explain why or how. Moreover, the strength of that right was held to depend on the stage of the pregnancy, for as the fetus develops, “the woman’s privacy is no longer sole,” such that “any right of privacy she possesses must be measured accordingly.” So as the woman’s privacy rights diminish, the state could intervene to promote its significant interests, such as “that of health of the mother or that of potential human life.”

Compared to its appeal to the “penumbras” of the Bill of Rights for a right to privacy, the court was far more clear in its concern for the damage inflicted on women and families by abortion bans:

The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.

Given the weak ideological defense of abortion rights offered by the court, these policy concerns were likely of paramount concern in the decision. Yet as we shall see, such pragmatic objections to abortion bans cannot justify abortion rights, particularly not in the face of the claim that the embryo or fetus is a person with the same right to life as a born infant.

Read the full paper in PDF format or HTML format.

This post is drawn from Ari Armstrong’s and my new policy paper: The ‘Personhood’ Movement Is Anti-Life: Why It Matters that Rights Begin at Birth, Not Conception. I’m currently posting the full paper as a series of blog posts. You can read the full paper in PDF format or HTML format.

The ‘Personhood’ Movement Is Anti-Life: Why It Matters that Rights Begin at Birth, Not Conception

By Ari Armstrong and Diana Hsieh, Ph.D
A policy paper written for the Coalition for Secular Government (www.SecularGovernment.us)
Published on August 31, 2010

The Destructive Effects of ‘Personhood’

…

Bans of Common Fertility Treatments

“Personhood” laws would require dramatic changes to the treatment of embryos in laboratory settings, including fertility clinics and research facilities. Such changes further illustrate the harm Amendment 62 and like measures would inflict on real people as well as the absurdities that arise from granting legal rights to newly fertilized zygotes.

The Division of Reproductive Health of the Centers for Disease Control reports that nationally, “about 12% of women of childbearing age in the United States have used an infertility service.” Fertility treatments account for more than one percent of all U.S. births. In 2007, the 430 fertility clinics evaluated helped women deliver 57,569 infants. Exclusively using in vitro fertilization, the seven clinics in Colorado helped 998 women give birth, led by the Colorado Center for Reproductive Medicine in Englewood with 613 of those births.[110]

Those thousand Colorado mothers would not be mothers, and their children would not exist today, but for fertility treatments. “Personhood” advocates, who claim to “respect life,” would outlaw such births.

Fertility treatments commonly involve the destruction of embryos. The same CDC report explains that, after egg development, the treatment “cycle then progresses to egg retrieval, a surgical procedure in which eggs are collected from a woman’s ovaries.

Once retrieved, eggs are combined with sperm in the laboratory. If fertilization is successful, one or more of the resulting embryos are selected for transfer, most often into a woman’s uterus…” The rest of the embryos are frozen or destroyed. Frozen embryos may be saved for later implantation or donation; however, “some embryos do not survive the thawing process.”[111]

The Colorado Center for Reproductive Medicine explains the process of in vitro fertilization:

In cases of normal sperm function, the eggs and several thousand sperm are placed together in a dish which contains a nutrient liquid. These dishes are kept in an incubator overnight and are examined under the microscope on the morning after the egg retrieval to determine which eggs have fertilized normally. …

Some couples are fortunate enough to collect a large number of embryos from one egg collection. Any remaining viable embryos that are not transferred into the woman’s uterus during the month of treatment may be frozen (“cryopreserved”) in small tubes and kept in storage in the embryo laboratory for future use. Cryopreservation allows the patient to limit the number of embryos transferred “fresh” without discarding the unused embryos that could lead to a future pregnancy. The embryos may be kept in storage for several years. By transferring frozen-thawed embryos into the uterus, some patients have achieved 2-3 pregnancies in different years from just one egg collection.[112]

Notice that freezing embryos is considered to be a desirable part of fertility treatment. If a clinic attempted to fertilize only an egg or two at a time, that would dramatically reduce the effectiveness of the treatment and dramatically increase its cost. Because many eggs don’t fertilize in any given treatment cycle, some women restricted to treatment involving single-egg fertilization would risk waiting too long to get pregnant at all, regardless of the cost. Alternately, a woman could risk becoming impregnated with several embryos, which could create severe health problems or produce more children than a couple is prepared to raise.

In the context of a “personhood” law, the basic problem with in vitro fertilization is that often not all of the embryos are transferred to the woman’s uterus. Embryos in the lab could not be allowed to perish, nor languish in cold storage, as they would be considered persons with rights, and frozen embryos remain viable only for a few years. To eliminate such practices would render in vitro fertilization not worth doing for most infertile couples. So the practical result of Amendment 62 likely would be to shut down Colorado’s seven reproductive clinics and put an end to those births.

Finally, consider how Amendment 62 would change the legal status of all the frozen embryos now in existence: they would suddenly become “persons” under the law, with all the rights of born infants. Presumably, women would be forced to implant (or donate for implantation) all their existing embryos–or face criminal charges. Moreover, if the biological parents of a frozen embryo die, presumably the embryo has full rights of inheritance, thereby reducing the share of any born children, though how the frozen embryo will grow up to collect remains a problem.

This fantastical scenario highlights the absurdity of treating an embryo as a person in the law. However, the farce of granting legal rights to frozen embryos ought not obscure the much more important point: fertility treatments bestow the gift of a child to many hundreds of Colorado women and men each year, a gift that Amendment 62 would smother.

Read the full paper in PDF format or HTML format.

This post is drawn from Ari Armstrong’s and my new policy paper: The ‘Personhood’ Movement Is Anti-Life: Why It Matters that Rights Begin at Birth, Not Conception. I’m currently posting the full paper as a series of blog posts. You can read the full paper in PDF format or HTML format.

The ‘Personhood’ Movement Is Anti-Life: Why It Matters that Rights Begin at Birth, Not Conception

By Ari Armstrong and Diana Hsieh, Ph.D
A policy paper written for the Coalition for Secular Government (www.SecularGovernment.us)
Published on August 31, 2010

The Destructive Effects of ‘Personhood’

…

Abortions to Protect a Woman’s Health

Thankfully, modern medicine makes both pregnancy and abortion relatively safe. The Centers for Disease Control reports, “The risk of death from complications of pregnancy has decreased approximately 99% during the twentieth century, from approximately 850 maternal deaths per 100,000 live births in 1900 to 7.5 in 1982. However, since 1982, no further decrease has occurred in maternal mortality in the United States.” The report notes that most women who die from pregnancy die during live birth.[77] By way of comparison, the Guttmacher Institute notes, “Fewer than 0.5% of women obtaining abortions experience a complication, and the risk of death associated with abortion is about one-tenth that associated with childbirth.”[78]

However, for some small fraction of pregnant women with health problems, getting an abortion is far safer for her than attempting to give birth. The advocates of “personhood” laws claim that they would allow doctors to intervene to save the life of the mother. However, these laws would force doctors to balance the health of the woman with the life of the embryo or fetus, resulting in permanent injury or death for some women who would otherwise choose the relative safety of an abortion.

Personhood Colorado denies that Amendment 62 would “threaten the death penalty on doctors who do legitimate invasive surgery that could unintentionally harm a child in the womb.” The organization continues:

In Colorado, the death penalty is only available for first degree murder with aggravating factors. First degree murder requires deliberation and intent. There are no legitimate medical procedures that are intended to kill the child in the womb, and in those extremely rare situations where a woman needs treatment that might unintentionally result in the death of the child, the doctor would not have acted with intent to kill or even harm the child, but with intent to cure the mother. Before Colorado passed [its] abortion law legalizing abortion in 1967 there were no prosecutions of doctors for legitimate medical treatment. There will be no threat whatsoever to doctors practicing legitimate medicine when the Colorado Personhood Amendment passes. This is a scare tactic. …

[Amendment 62] won’t ban surgeries for women who have tubal pregnancies, also known as ectopic pregnancies.

The crucial issue in criminal law is always intent. Law School 101 teaches you that the basic elements of any crime are a guilty mind (mens rea) and a guilty act (actus reus). A doctor who performs a procedure to cut out a damaged section of a fallopian tube where a human embryo is lodged is not intending to kill the human embryo, instead she is attempting to cure a physical ailment, and unintentionally causing the death of a human embryo.[79]

Personhood Colorado’s claims about the lack of prosecutions under previous anti-abortion laws are meaningless, as those laws were dramatically different from any “personhood” measure.

More importantly, Personhood Colorado ignores the fact that first degree murder is not the only relevant statute. Colorado statute 18-3-105 states, “Any person who causes the death of another person by conduct amounting to criminal negligence commits criminally negligent homicide which is a class 5 felony.” Statute 18-1-501(3) clarifies: “A person acts with criminal negligence when, through a gross deviation from the standard of care that a reasonable person would exercise, he fails to perceive a substantial and unjustifiable risk that a result will occur or that a circumstance exists.” Felony negligence does not require deliberation or intent.

True, a jury might apply the “reasonable person” standard in order to rule that any medical intervention to protect the life or health of the mother constitutes an appropriate “standard of care.” Alternately, the legislature might pass statutes clarifying that such medical interventions are legal. However, law enforcers would also be constitutionally bound to grant embryos and fetuses full legal rights, and they would urge juries to consider the implications of the language of Amendment 62. Even if a criminally prosecuted woman or doctor won in court, just the financial costs and emotional distress of a trial could take a heavy toll.

Moreover, it is not clear that, according to the language of “personhood,” a doctor could intervene to save the health (rather than the life) of a woman by terminating a pregnancy. Colorado Right to Life recognizes exceptions only when “the mother’s life” is “in danger.” And even “under those circumstances, those responsible must make every legitimate effort to save the life of both mother and child.”[80] In a separate statement, Colorado Right to Life recognizes the legitimacy of terminating a pregnancy only “when the mother’s life is seriously threatened.”[81] Likewise, in a memorandum for the religiously motivated Thomas More Law Center, Robert Muise refers only to terminating a pregnancy to save a woman’s life.[82] In other words, a doctor may be legally required to save the life of the embryo or fetus even if the woman will suffer permanent physical injury as a result.

Ultimately, legislation and court cases would determine whether a doctor could terminate a pregnancy to save not only the life but also the health of a woman. However, even if the law were clear, the broader problem is that doctors can rarely predict with certainly when a patient’s life or long-term health is at risk. A doctor who terminated a pregnancy, either to save the health or life of a woman, might be second-guessed by a prosecutor. The advice and decisions of doctors would be distorted by fear of possible prosecution, rather than based solely on their best judgment of the woman’s condition and prospects. As an inevitable result, some women would receive sub-standard medical care, and perhaps suffer permanent injury or death.

Abortion bans have produced legal problems and medical horrors even in the seemingly clear-cut case of ectopic pregnancies. Ectopic pregnancies, “the leading cause of pregnancy-related death during the first trimester in the United States,” occur when a fertilized egg develops outside of the uterus. An ectopic pregnancy occurs in about two percent of all pregnancies, and in 1992 about half of all ectopic pregnancies (58,200 out of 108,800) resulted in hospitalization.[83] Following a total ban on abortion in Nicaragua, many doctors refused to perform even emergency abortions for ectopic pregnancy, and at least one woman with an ectopic pregnancy died because doctors refused to treat her, apparently out of fear of prosecution.[84]

The lives of American women with ectopic pregnancies likely would be at similar risk under an enforced “personhood” measure. The Ohio-based Association of Prolife Physicians claims that medical intervention may not be justified even in cases of ectopic pregnancies, because “there are several cases in the medical literature where abdominal ectopic pregnancies have survived,” and even in cases of “pregnancies in a fallopian tube…chemical or surgical removal of an ectopic pregnancy is not always necessary to save the mother’s life.”[85]

Other anti-abortion groups agree that medical intervention may not be warranted even in cases of ectopic pregnancies. The website Abort73.com emphasizes that the only relevant consideration is the life, not the health, of the pregnant woman: “making an exception for the life of the mother is by no means comparable to making an exception for the health of the mother.” However, the essay continues, “We can never say with certainty that if the pregnancy continues, the mother will die.” Regarding ectopic pregnancy, Abort73.com states that it might “pose a significant threat to a woman’s life during the first trimester.” But “there have been a number of documented cases where undiagnosed ectopic pregnancies have yielded successful live births,” even after a zygote “implanted in his mother’s fallopian tube.” The essay concludes on an ambiguous note:

[I]t is safe to say that ectopic pregnancy, even an untreated ectopic pregnancy, is not as life-threatening as most people are led to believe. At the same time, the risk that an ectopic pregnancy poses to the mother’s life is real and sometimes fatal, while the baby’s chance of survival is extremely slim. There are no easy answers and no “one-size-fits-all” solution. If you’re facing an ectopic pregnancy, make sure you have a pro-life doctor to walk this road with you–one that prescribes abortion as a means of last resort, not as a means of first resort.[86]

Under Amendment 62 and similar measures, how would prosecutors treat doctors who prescribe medical intervention as a “first resort” in cases of ectopic pregnancy to better protect the woman’s life and health? The question is impossible to answer in advance–and that uncertainty could impel doctors to refuse to treat women suffering from ectopic pregnancy.

Alternatively, Priests for Life maintains that some kinds of medical interventions, but not others, are justified in cases of ectopic pregnancies. The organization features an exchange with a nurse, who states, “I am an oncology nurse and was asked to give methotrexate for an ectopic pregnancy…I believe the pregnancy was tubal. Needless to say I refused because I was unsure of the morality of it.” Priests for Life replies:

The relevant moral question is whether the method or action is in fact a killing of the child. If so, that is a direct abortion, which is never permissible for any reason. …Sometimes ectopic pregnancies are handled this way, killing the child but leaving the tube intact. Such an action is morally wrong.

However, if what is done is that the damaged portion of the tube is removed because of the threat it poses to the mother, that is not a direct abortion, even if the child dies. What is done is the same thing that would be done if the tube were damaged from some other cause. The mother is not saved by the death of the child but by the removal of the tube. Because the death of the child in this case is a side effect which is not intended, and because the saving of the mother’s life is not brought about by the death of the child, such a removal of the damaged portion of the tube is morally permissible.[87]

“Personhood” laws could require doctors to conduct such bizarre theological debates before providing medical care in an emergency. Doctors might be forced to use less effective or more dangerous methods of treatment. Even doctors who attempted to comply with the law could be subject to criminal investigation and prosecution if they used a method deemed inappropriate by a police officer or prosecutor. Once again, the result could be that doctors refuse to treat women with ectopic pregnancy.

Ectopic pregnancy is not the only serious risk to a woman’s life and health in pregnancy: “a variety of medical conditions in pregnant women have the potential to affect health and cause complications that may be life threatening.” For example, about one in a thousand women get cancer during pregnancy.[88] To delay treatment until birth would be dangerous if not deadly to the pregnant woman, while to treat the woman while pregnant would be dangerous if not deadly to the embryo or fetus.

Due to its total ban on abortion, Nicaragua recently denied cancer treatment to a ten-weeks pregnant woman with cancer suspected to have spread to her brain, lungs, and breasts.[89] The anti-abortion news service LifeSiteNews.com decried calls to permit her to terminate the pregnancy as unnecessary.[90] Ultimately, the woman was allowed chemotherapy, and as a result, the fetus was stillborn five months later.[91] In this case, as in many others, the life of the woman could only be saved at the expense of that of the embryo or fetus. Yet under “personhood” laws, the embryo or fetus has the same right to life as the woman, so any priority given to her life must be regarded as criminally suspect.

Ultimately, under an enforced “personhood” law, a woman might not be able to obtain an abortion even if she feared for her heath or life. Depending on legislative actions and prosecutorial zeal, doctors might not be willing to terminate a pregnancy except in cases of extreme risk to a woman’s life. In cases of lesser risk to a woman’s health or uncertain risk, doctors likely would be wary about terminating a pregnancy, fearing prosecution. Women might even need to obtain bureaucratic or judicial approval to obtain an abortion, resulting in potentially dangerous delays. The result would be that some women would face increased danger of permanent physical injury or death.

Abortions for Rape, Incest, and Fetal Deformity

By establishing rights from conception, Amendment 62 and other “personhood” measures would outlaw abortion for pregnancies resulting from rape and incest. Whether the embryo was created in an act of consensual love or brutal force would not impact its legal rights. Without “morning after” medication or abortion to protect themselves from pregnancy, brutalized girls and women might be forced to endure an inescapable reminder of their attack for nine months thereafter, if not longer. Recall that Colorado Right to Life asked candidates whether they “agree that abortion is always wrong, even when the baby’s father is a criminal (a rapist),” and numerous respondents answered yes. While a small fraction of abortions terminate pregnancy resulting from rape or incest, in those few cases this legal implication of “personhood” measures become very important.

Amendment 62 also would outlaw the abortion of severely deformed fetuses without any reasonable hope of a life outside the womb. Although women’s bodies usually naturally abort in such cases, they do not always do so. A 2008 article in Boulder Weekly quotes a doctor from Georgia who discusses the devastating effects on parents if abortion is forbidden in such cases:

There were countless couples who got up and told their story [in a legislative hearing in Georgia] about how they had to have an abortion because of a child that was an[en]cephalic [missing most of the brain] or deformed in some terrible way… [T]o think that you have to carry that child, go through the pain of the delivery process and then watch it die…[92]

Recall that some variants of the “personhood” language would explicitly ban abortion “regardless of…[a fetus's] level of functioning,” and clearly that is the intent of every “personhood” measure. Under Amendment 62, aborting a deformed fetus would be just as much murder as killing a deformed infant. Thus, under “personhood” laws, painful family decisions would become political spectacles for anti-abortion activists under the false banner of “protecting life,” just as happened in the Terri Schiavo case. Leslie Hanks, who helped submit Amendment 62 to the Secretary of State, attempted to “peacefully but physically intervene” in the Schiavo case, and no doubt she would be equally prepared to intervene in the private decisions of Colorado families.[93]

Read the full paper in PDF format or HTML format.