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.
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.