Can we find a difference in the personhood status of fetuses bases on viability?
Is there a substantial difference in personhood between two similarly-aged fetuses, making it ethical to kill one while giving the other legal protection from harm?
In the interest of preserving a woman’s right to choose to terminate an unviable fetus in the third trimester, as well as simultaneously ensuring that a woman be able to seek damages on behalf of the death of an otherwise healthy, viable fetus by means of accident or attack by a third party, I posit that there must be a way to ethically and legally differentiate between the moral personhood statuses of two fetuses in the final stage of pregnancy.
Roe v. Wade (1973) (hereafter I will refer to this landmark case as simply “Roe”), gives American women the right to terminate pregnancies before they are viable, and it also allows each state to set post-viability statutes that take the health of the mother and/or fetus into consideration. (Guttmacher Institute brief, 1997)
However, many states have recently opted to introduce fetal personhood laws (National Conference of State Legislatures, 2015), making it nearly impossible to obtain a late-term or post-viability abortion, generally defined as the termination of a pregnancy after 20 to about 24 weeks gestation, depending on the state.
Fetal personhood laws are varied and complicated because they are determined by states individually. Most of these laws define a human person to include a fetus of any age of gestation. (NCSL, 2015) It is this phrasing that is problematic, and it is what pro-choice advocates fear about fetal personhood laws.
The fact that a fetus of any age can be a victim of a crime conflates late-term fetuses that are killed by violent assault or attack and those that are terminated by abortion for any other reason, leaving room for the states to infringe on the civil rights of women by prosecuting them for necessary abortions of unviable fetuses.
In this paper I will discuss how we can make a distinction between an early stage and late-term fetus, as well as between a late-term viable and late-term unviable fetuses.
I will argue that healthy, viable fetuses aged over 24 weeks are neither moral non-persons nor full-persons, but still encompass some level of moral personhood, and that it is indeed higher than the level of personhood held by late-term, unviable fetuses.
I will also show that to preserve the rights of these fetuses, as well as the rights of American women, the law needs to take these moral variants into account.
The legal debate
In 1973, the US Supreme Court ruled that when it comes to abortion, before the stage of viability, the decision to terminate a pregnancy is one best left to the mother. Roe made it clear that “for the stage prior to approximately the end of the first trimester” at least, it is legally permissible to kill a human fetus.
This is a clear demarcation between early and late-term fetuses that is accepted.
Roe is also a history lesson in abortion, and the opinion by Justice Blackmun explains that in the past, an abortion before the “quickening” (the first fetal movements, felt around weeks 16–22) was not a crime. Societies around the world widely held “that the foetus is not alive till after the period of quickening” and that “at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect.” (Roe, 1973)
From the 20th century onward, the definition of what could legally be described as a living human being has become increasingly more constrained by the American legal system.
In 2004, President Bush signed the Unborn Victims of Violence Act (UVVA) (Office of the Press Secretary, 2004), a fetal personhood law inspired by the grisly murders of Laci Peterson and her unborn fetus, estimated to be between 32 and 38 weeks gestational age at the time of death.
The Peterson trial was a national fascination, and the fact that the fetus was considered a victim became controversial, particularly when fetal personhood made its way to the federal government. (Holland, 2003)
Opponents of the UVVA were worried that the law’s definition of an unborn victim, “a ‘child in utero,’ an ‘unborn child,’ a ‘human being’ and ‘a member of the species homo sapiens, at any stage of development, who is carried in the womb,’” was overly broad, granting a fetus at any age legal rights and eroding the protections of Roe. (Holland, 2003)
However, the law is clear: fetuses, at any age, are not afforded due process under the law, despite what states and the federal government believe. (Alongi, 2008)
Rep. Jerrold Nadler (D-NY) said of the UVVA, “The Supreme Court in Roe v. Wade specifically says we have never recognized a fetus as a separate person… If we were to do so, then we would get into the 14th amendment question that you cannot deprive a person of life, or liberty or process, without due process of law”. (Alongi, 2008)
Similarly, philosopher and legal expert Lawrence Nelson agrees that it matters that fetuses are not persons, and that Roe makes it clear that “humans become constitutional persons at birth, not before.” (2016)
However, Nelson also points out that in another landmark case, Casey v. Planned Parenthood, the Supreme Court ruled that, based on Roe, after the second trimester, “the State has legitimate interests… in protecting… the life of the fetus.” This does not grant a fetus full personhood or constitutional rights under the law, yet, as Nelson writes, “it does not follow from their lack of [full] personhood that prenatal humans cannot have some legal status.” (Nelson, 2016)
So where does that leave the legal protections of a late-term fetus?
I have found that the law is not a place wherein there is clarity on this issue, because the federal and state laws are not in agreement with the constitution, or with each other.
Ethical analysis: Levels of Moral Personhood
Outside of states that have fetal personhood laws, a human fetus only becomes a legally protected person when it is born, takes a breath, and is thereafter referred to as an infant.
But is there a meaningful difference between the fetus and the infant in the last weeks and days leading up to that first breath? Why can’t protections for infants be extended to viable fetuses?
After a baby is medically “viable” after about 23 or 24 weeks, the chances of survival outside the womb increase with every day. At 32 weeks, the healthy fetus has a significant chance of survival if delivered. However, it is clear that before 20 weeks, there is no chance of survival outside the womb. (Breborowicz, 2001)
Many conservative philosophers, academics, bioethicists and politicians argue that human life, and therefore personhood, begins at conception. This theory is based on the fetus’s theoretical potential to grow into a human adult. (Manninen, 2007) The argument is tenuous at best, but it must be considered because it is the basis of many of the 38 American fetal personhood laws in question. (NCSL, 2015)
This argument aims to take abortion off the table completely, however, it is notable because it hinges on the idea that the fetus in question does have the potential to grow into a human with a valuable life of some kind to enjoy. (Harmon, 2003) However, unviable fetuses do not have this potential. Even without intervention, many of them die in the womb if not immediately after leaving it.
In addition, the argument does not address the fact that potentiality does not mean abortion is necessarily wrong. David Orentlicher, a doctor and lawyer, points out that abortion can also be seen as “a withdrawal of assistance,” and a woman is neither ethically nor legally required to provide her body to assist anyone. (Orentlicher, 2016)
Therefore, potentiality of the fetus should not matter at all in a legal sense, if either the fetus is unviable, or if the mother no longer wishes to gestate it, or both.
Two other compelling ethical theories about the moral personhood status of late term fetuses can be applied to this question as well.
The first is a controversial paper in which two bioethicists make a case against differentiating moral personhood status between recently delivered newborns and late-term fetuses still in the womb (Giubilini and Minerva, 2012), arguing that euthanizing a newborn baby is ethically permissible in cases where a “problem arises when the same conditions that would have justified abortion become known after birth.”
The authors say that if the fetus could have been ethically terminated, so too can the infant be ethically euthanized, a process they term “after-birth abortion.”
I believe that they make this case, however, I have a caveat. I agree there is no difference in moral personhood between the terminal fetus and the terminal newborn. But because this is true, it also stands that the opposite must also be true: there is no difference between the healthy fetus and the healthy newborn.
Also, I find that Giubilini and Minerva’s argument is too simplistic because the authors do not ascribe any moral status to the fetus or infant, and claim that “merely being human is not in itself a reason for ascribing someone a right to life.”
I do not agree with this assessment, because the question of moral personhood, and moral status in general, is a nuanced one, with many levels, the highest being a fully functioning, adult, human person.
For example, we can agree with philosopher Elizabeth Harmon (2004) that although “both human babies and cats have moral status… harms to babies matter more, morally, than similar harms to cats,” and, as Bertha Manninen (2007) writes, “newborn infants lack the psychological maturity to possess goals, aims, beliefs, or purposes. This does not, however, exclude them from the moral community.”
And while these are useful since we have just established that late term fetuses and babies have similar moral status, we are not debating babies or cats. Instead are looking for answers regarding late term fetuses and their health, and we turn to David DeGrazia, who establishes an elegant idea that I refer to as “levels of personhood” and which he calls “degrees of moral status.” (2008)
DeGrazia defines moral status for simplicity’s sake as having “a very strong moral protection against being killed” and establishes in his paper “Moral Status, Human Identity, and Early Embryos” (2006) that “the harm of death for an infant seems intermediate between the harm of death for a person and the loss of value of someone’s never coming into existence.”
He means that between the abortion of an early fetus (no moral status) and the murder of a grown adult human (full moral status), there is an intermediate level of moral status for the death of an infant (some moral status). Which is to say, it is not nothing to kill a late-term fetus or infant, but it is not the same as killing an early fetus or a grown human. There are at least three levels.
Achieving any level of personhood becomes increasingly difficult when physical and/or mental abnormalities have developed (Buron, 2007), and it is this difficulty that creates another level, ultimately demarcating a different moral status between viable and unviable fetuses.
Jeffrey McMahan also agrees with the DeGrazia idea of degrees of moral status, and that these degrees are defined by certain “candidate properties” or “clusters of traits” (Bioethics Bites, 2012 and DeGrazia, 2006) necessary for moral status in living things, including humans and human fetuses. One of these is the capacity for consciousness.
Because late-term, viable fetuses possess the capacity for consciousness, this characteristic is one definitive difference between a viable and unviable fetus, although there may be others as well.
Therefore, just as a viable infant is capable of consciousness and being alive, and because any late-term fetus, even if removed from the womb, is similarly capable, the viable fetus still does not have full personhood, but it has a higher moral status than the unviable fetus, and it deserves the same protections under the law as the viable infant, to which it is equal in moral status.
Two American cases, both in the state of Colorado, give a view on the differences of the circumstances surrounding the deaths of two 32-week-old fetuses, showing what we have established above: a difference in the moral status between two late-term fetuses.
In the first one, a healthy, viable fetus is murdered by an attacker who cuts it out of the mother’s womb. In the second one, a terminal fetus is pronounced unviable and is aborted.
A woman was assaulted and stabbed, resulting in the death of her otherwise healthy seven-month-old fetus. Because the woman survived, the state prosecutor was unable to bring murder charges against the perpetrator of the attack, as the fetus was not yet a legal person, because it had not lived outside the womb. (Bassett, 2015)
Republican lawmakers in the state senate introduced a fetal personhood bill in response to the incident, in which a human person was defined as including “an unborn child at every stage of gestation from conception until live birth.” (SB-15 268). The measure was ultimately defeated. (Salzman, 2015 and Bassett, 2015).
Colorado still does not have a fetal personhood law, however, the state does have three variations of entries in the criminal code, under which the state can prosecute varying degrees of violence against pregnant women, in which the woman is defined as the victim, not the fetus. (NCSL, 2015) If the woman survives the attack, but her healthy fetus does not, it is not possible to seek recourse through a murder charge for the death of her viable fetus, which has the same moral personhood status as a healthy baby.
A couple sought a late-term abortion for an unviable fetus. (Tolentino, 2016). The fetus and the placenta both carried a handful of rare, unrelated complications that taken separately would have been manageable, but ultimately proved to be too much when combined, resulting in a fetus that was not expected to survive the pregnancy.
By the time doctors discovered that the fetus was a terminal case and would not survive, at 30 weeks the pregnancy was too advanced for a legal abortion in New York, where the couple lived. So the couple had to fly from their home state of New York to Colorado to procure two shots: one to stop the fetal heartbeat, and another to keep the woman from going into labor. The couple returned to New York so that the woman could be induced to deliver the now-deceased fetus via an extraction method performed in a hospital.
The shot to stop the fetal heartbeat, or induce stasis, is technically the part of the procedure that is criminalized in many states, but not in Colorado. If the woman had been unable to access that shot, she might have suffered even more significant mental and emotional trauma by any of the following: carrying a stillbirth fetus to term that was significantly deformed, suffering physical harm from the death of the fetus if it wasn’t removed, or being forced to undergo a Cesarean section, a major, traumatic surgery.
In both of these cases, the mothers were able to achieve some level of appropriate response to their respective situations. The assailant in the first case was found guilty of attempted murder, assault, and unlawfully terminating a pregnancy (Coffman, 2016). In the second case, although it was financially debilitating and physically taxing to travel from New York to Colorado, the woman was able to procure the medical intervention she needed.
However, neither of these cases shows a sufficiency on part of the law to handle either of these scenarios appropriately.
In this paper I have demonstrated through two cases and through ethical and legal discussion that there is a measurable difference in the level of moral personhood between early and late-term fetuses and viable and unviable late-term fetuses. I have also shown that the law does not adequately address these differences.
By euthanizing a fetus that is unviable and will not live, a mother and physician must be protected legally. Simultaneously, a viable fetus that would otherwise be expected to live a full life must be afforded legal recourse if it is murdered, as late-term fetuses have the same moral status as newborn infants.
This issue would be alleviated if fetal personhood laws that strive to protect a fetus from an attack were clear that they only apply to fetuses after the line of viability (24 weeks), while also reinforcing the protections of Roe by making it clear that fetal personhood laws cannot be used to prosecute women for seeking late-term abortions.
It is ultimately my conclusion that after the line of viability, it is not the age of the fetus that determines its moral status or level of personhood, it is its level of health, and that we can ethically differentiate the moral status of fetuses using viability as a barometer.
Alongi, April. “The Unborn Victims of Violence Act and its Impact on Reproductive Rights”. (2008) Washington and Lee Journal of Civil Rights and Social Justice. Volume 15, Issue 1, Article 11.
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