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Following the leak of a draft decision by the Supreme Court that would overturn Roe v. Wade, the Medical School’s Louise King discusses how the potential ruling might affect providers.

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How a bioethicist and doctor sees abortion

Alvin Powell

Harvard Staff Writer

Her work touches questions we can answer and questions we can’t. But her main focus is elsewhere: ‘the patient in front of me.’

With the leak Monday of a draft decision by the Supreme Court that would overturn Roe v. Wade, the future of abortion in the U.S. has been a highly charged topic of conversation all week. Doctors are among those wondering what’s next. Louise King is an assistant professor of obstetrics, gynecology, and reproductive biology at Harvard Medical School and a Brigham and Women’s Hospital physician whose practice includes abortion services. King, who is also the director of reproductive bioethics for the Center for Bioethics at the Medical School, spoke with the Gazette about ethical dimensions of abortion and how a ruling against Roe might affect providers.

Louise King

GAZETTE: In the U.S., abortion is framed in broad ethical terms: life versus death, privacy versus government intrusion, etc. From a medical ethics standpoint, what are the important concerns to be balanced on this issue?

KING: I frame the topic in the context of the patient in front of me. In other words, I look primarily to autonomy and beneficence in the context of doing good for the patient. That might mean upholding that person’s choice not to proceed with what is still a very dangerous proposition, namely carrying a pregnancy to term and delivering. If someone says to me, “I’m pregnant and do not wish to be pregnant,” for a multitude of reasons, I support that decision, because the alternative of carrying to term is risky. I want to protect that person’s bodily autonomy. From a reproductive justice standpoint, I want to support persons who have uteri in making decisions about when they wish to have a family, how they want that to look, whether they want to have a family at all, in expressing their sexuality, and in all kinds of different things.

I don’t believe that life begins at conception. Among the minority of people in this country who believe that’s the case, some are vocal and aggressive in imposing that belief on others, which may happen with this upcoming decision. But quite a number of students that I meet who believe life begins at conception still don’t believe that they have the right to impose that belief on others. To contextualize what we ask of persons with uteri when we make abortion illegal, it’s helpful to compare instances where we could ask people to undergo very risky procedures to help others. For example, we don’t demand that people give blood. It’s not a big deal and it could save lives every day, but we don’t demand that anybody donate blood or bone marrow. We don’t demand kidney donations, which are less risky than childbirth nowadays.

So we generally don’t ask one human being to give so completely of themselves to another, but we do so when it’s a pregnant person. That, I believe, does not comport with our ethics. But it also doesn’t fully address the concerns of persons who believe life begins at conception. They come to those beliefs honestly, but I think they have to explore them more deeply and figure out whether, even if true — do they hold up to the point where we require somebody to have a forced pregnancy to term? I would say, within my understanding of ethics, no.

“It’s not a big deal and it could save lives every day, but we don’t demand that anybody donate blood or bone marrow. We don’t demand kidney donations, which are less risky than childbirth nowadays.”

GAZETTE: Abortion is one of the most divisive issues in the country. Is the medical profession unified on it one way or another?

KING: That’s hard to say definitively. No study or survey exists to truly quantify this. The American Medical Association and the America College of Obstetricians and Gynecologists say that abortion is health care, and I agree. ACOG is very strong in their wording about supporting the right to access abortion. Unfortunately, only 14 percent of practicing OBGYNs provide abortion care. As a profession, our words and actions don’t match. I think there’s a multitude of reasons for that. One is the stigma associated with providing abortion care in some parts of the country.

I would guess that most providers feel similarly to the majority of Americans — that abortion is health care and should be available. While I’ve met some medical students and practicing physicians in all kinds of disciplines who feel strongly that abortion is unethical, the vast majority that I’ve spoken to feel as I feel: that it’s health care and should be provided.

GAZETTE: A big part of the debate over the decades has centered on viability. Is this an issue for science to determine? Is it an issue for society? Is it an issue for religion?

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KING: I don’t think that science can tell us definitively when life begins. Life is a broad term and includes a variety of living entities. I don’t think that religion can define it because we have freedom of religion and religions see this differently. Rabbis will explain that in the Torah, it’s very clear that an embryo is simply an extension of a woman’s body, like a limb, and should not be considered another person until birth. The leaked decision presumes that one version of Christianity’s assessment of this prevails, which seems to violate our understanding of freedom of religion in this country.

Ultimately, “when life begins” isn’t the right question because it’s unanswerable. The question then must be: How do we as a society come up with a compromise that upholds the autonomous rights of the persons in front of us who may become pregnant, who may have excessive risks associated with a pregnancy, or who may simply not wish to be pregnant, that also observes whatever our society’s agreed-upon understanding is of when a protected entity exists.

I think Massachusetts absolutely gets it right. If you read the Roe Act : Abortion is allowed for any reason in the first and second trimesters, and then abortion for medical reasons or lethal fetal anomalies can extend into the third trimester with careful consideration between patient and medical teams. To me, that is an exceptionally well-thought-out compromise. This is a societal decision. It shouldn’t be made by a minority of persons based on their narrow definition of “when life begins.”

GAZETTE: If something like the leaked draft decision emerges, is there a potential for medical providers to get caught in the middle?

KING: Overturning Roe would turn the question over to the states. That would mean that those providers who exist within the states that are clearly going to go forward with legislation to outlaw abortion would be in dire situations. In Massachusetts, we could provide the care we’re already providing and would expect people to travel from out of state to us. I don’t think that the long-arm statutes would reach a provider here, that somebody could come after me from Texas if somebody traveled from Texas to me and I provided care. But if I traveled to Texas, for a conference, it might. Legal experts aren’t sure.

GAZETTE: Have you ever been threatened because you’ve offered abortions?

KING: I haven’t, but many of my colleagues have. I did my training in Texas, so I lived a long time in the South. I’ve not been threatened directly, but spoken sternly to by many people who disagreed with me. I mentioned earlier that there are plenty of people who believe life begins at conception but who do not feel they should impose their viewpoints on others — those are people I met in Texas and Louisiana. There are a lot of people like that, but they can’t speak up for fear of being ostracized. The sense that I have through all the conversations I’ve had over many years is that we are all talking past each other. You started off by saying this is a topic that divides our country, but it doesn’t. The vast majority of people are settled on having abortion as an option, having contraception as an option, and having sex education available. There’s a group of politicians who make it appear that we’re divided and build their political careers off of that. It’s incredibly disheartening and unethical for them to do so.

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Ethics and Morality

Ethics and abortion, two opposing arguments on the morality of abortion..

Posted June 7, 2019 | Reviewed by Jessica Schrader

Abortion is, once again, center stage in our political debates. According to the Guttmacher Institute, over 350 pieces of legislation restricting abortion have been introduced. Ten states have signed bans of some sort, but these are all being challenged. None of these, including "heartbeat" laws, are currently in effect. 1

Much has been written about abortion from a philosophical perspective. Here, I'd like to summarize what I believe to be the best argument on each side of the abortion debate. To be clear, I'm not advocating either position here; I'm simply trying to bring some clarity to the issues. The focus of these arguments is on the morality of abortion, not its constitutional or legal status. This is important. One might believe, as many do, that at least some abortions are immoral but that the law should not restrict choice in this realm of life. Others, of course, argue that abortion is immoral and should be illegal in most or all cases.

"Personhood"

Personhood refers to the moral status of an entity. If an entity is a person , in this particular sense, it has full moral status . A person, then, has rights , and we have obligations to that person. This includes the right to life. Both of the arguments I summarize here focus on the question of whether or not the fetus is a person, or whether or not it is the type of entity that has the right to life. This is an important aspect to focus on, because what a thing is determines how we should treat it, morally speaking. For example, if I break a leg off of a table, I haven't done anything wrong. But if I break a puppy's leg, I surely have done something wrong. I have obligations to the puppy, given what kind of creature it is, that I don't have to a table, or any other inanimate object. The issue, then, is what kind of thing a fetus is, and what that entails for how we ought to treat it.

A Pro-Choice Argument

I believe that the best type of pro-choice argument focuses on the personhood of the fetus. Mary Ann Warren has argued that fetuses are not persons; they do not have the right to life. 2 Therefore, abortion is morally permissible throughout the entire pregnancy . To see why, Warren argues that persons have the following traits:

• Consciousness: awareness of oneself, the external world, the ability to feel pain.
• Reasoning: a developed ability to solve fairly complex problems.
• Ability to communicate: on a variety of topics, with some depth.
• Self-motivated activity: ability to choose what to do (or not to do) in a way that is not determined by genetics or the environment .
• Self-concept : see themselves as _____; e.g. Kenyan, female, athlete , Muslim, Christian, atheist, etc.

The key point for Warren is that fetuses do not have any of these traits. Therefore, they are not persons. They do not have a right to life, and abortion is morally permissible. You and I do have these traits, therefore we are persons. We do have rights, including the right to life.

One problem with this argument is that we now know that fetuses are conscious at roughly the midpoint of a pregnancy, given the development timeline of fetal brain activity. Given this, some have modified Warren's argument so that it only applies to the first half of a pregnancy. This still covers the vast majority of abortions that occur in the United States, however.

A Pro-Life Argument

The following pro-life argument shares the same approach, focusing on the personhood of the fetus. However, this argument contends that fetuses are persons because in an important sense they possess all of the traits Warren lists. 3

At first glance, this sounds ridiculous. At 12 weeks, for example, fetuses are not able to engage in reasoning, they don't have a self-concept, nor are they conscious. In fact, they don't possess any of these traits.

Or do they?

In one sense, they do. To see how, consider an important distinction, the distinction between latent capacities vs. actualized capacities. Right now, I have the actualized capacity to communicate in English about the ethics of abortion. I'm demonstrating that capacity right now. I do not, however, have the actualized capacity to communicate in Spanish on this issue. I do, however, have the latent capacity to do so. If I studied Spanish, practiced it with others, or even lived in a Spanish-speaking nation for a while, I would likely be able to do so. The latent capacity I have now to communicate in Spanish would become actualized.

Here is the key point for this argument: Given the type of entities that human fetuses are, they have all of the traits of persons laid out by Mary Anne Warren. They do not possess these traits in their actualized form. But they have them in their latent form, because of their human nature. Proponents of this argument claim that possessing the traits of personhood, in their latent form, is sufficient for being a person, for having full moral status, including the right to life. They say that fetuses are not potential persons, but persons with potential. In contrast to this, Warren and others maintain that the capacities must be actualized before one is person.

The Abortion Debate

There is much confusion in the abortion debate. The existence of a heartbeat is not enough, on its own, to confer a right to life. On this, I believe many pro-lifers are mistaken. But on the pro-choice side, is it ethical to abort fetuses as a way to select the gender of one's child, for instance?

We should not focus solely on the fetus, of course, but also on the interests of the mother, father, and society as a whole. Many believe that in order to achieve this goal, we need to provide much greater support to women who may want to give birth and raise their children, but choose not to for financial, psychological, health, or relationship reasons; that adoption should be much less expensive, so that it is a live option for more qualified parents; and that quality health care should be accessible to all.

I fear , however, that one thing that gets lost in all of the dialogue, debate, and rhetoric surrounding the abortion issue is the nature of the human fetus. This is certainly not the only issue. But it is crucial to determining the morality of abortion, one way or the other. People on both sides of the debate would do well to build their views with this in mind.

https://abcnews.go.com/US/state-abortion-bans-2019-signed-effect/story?id=63172532

Mary Ann Warren, "On the Moral and Legal Status of Abortion," originally in Monist 57:1 (1973), pp. 43-61. Widely anthologized.

This is a synthesis of several pro-life arguments. For more, see the work of Robert George and Francis Beckwith on these issues.

Michael W. Austin, Ph.D. , is a professor of philosophy at Eastern Kentucky University.

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Is Abortion Sacred?

By Jia Tolentino

Twenty years ago, when I was thirteen, I wrote an entry in my journal about abortion, which began, “I have this huge thing weighing on me.” That morning, in Bible class, which I’d attended every day since the first grade at an evangelical school, in Houston, my teacher had led us in an exercise called Agree/Disagree. He presented us with moral propositions, and we stood up and physically chose sides. “Abortion is always wrong,” he offered, and there was no disagreement. We all walked to the wall that meant “agree.”

Then I raised my hand and, according to my journal, said, “I think it is always morally wrong and absolutely murder, but if a woman is raped, I respect her right to get an abortion.” Also, I said, if a woman knew the child would face a terrible life, the child might be better off. “Dead?” the teacher asked. My classmates said I needed to go to the other side, and I did. “I felt guilty and guilty and guilty,” I wrote in my journal. “I didn’t feel like a Christian when I was on that side of the room. I felt terrible, actually. . . . But I still have that thought that if a woman was raped, she has her right. But that’s so strange—she has a right to kill what would one day be her child? That issue is irresolved in my mind and it will eat at me until I sort it out.”

I had always thought of abortion as it had been taught to me in school: it was a sin that irresponsible women committed to cover up another sin, having sex in a non-Christian manner. The moral universe was a stark battle of virtue and depravity, in which the only meaningful question about any possible action was whether or not it would be sanctioned in the eyes of God. Men were sinful, and the goodness of women was the essential bulwark against the corruption of the world. There was suffering built into this framework, but suffering was noble; justice would prevail, in the end, because God always provided for the faithful. It was these last tenets, prosperity-gospel principles that neatly erase the material causes of suffering in our history and our social policies—not only regarding abortion but so much else—which toppled for me first. By the time I went to college, I understood that I was pro-choice.

America is, in many ways, a deeply religious country—the only wealthy Western democracy in which more than half of the population claims to pray every day. (In Europe, the figure is twenty-two per cent.) Although seven out of ten American women who get abortions identify as Christian, the fight to make the procedure illegal is an almost entirely Christian phenomenon. Two-thirds of the national population and nearly ninety per cent of Congress affirm a tradition in which a teen-age girl continuing an unplanned pregnancy allowed for the salvation of the world, in which a corrupt government leader who demanded a Massacre of the Innocents almost killed the baby Jesus and damned us all in the process, and in which the Son of God entered the world as what the godless dare to call a “clump of cells.”

For centuries, most Christians believed that human personhood began months into the long course of pregnancy. It was only in the twentieth century that a dogmatic narrative, in which every pregnancy is an iteration of the same static story of creation, began both to shape American public policy and to occlude the reality of pregnancy as volatile and ambiguous—as a process in which creation and destruction run in tandem. This newer narrative helped to erase an instinctive, long-held understanding that pregnancy does not begin with the presence of a child, and only sometimes ends with one. Even within the course of the same pregnancy, a person and the fetus she carries can shift between the roles of lover and beloved, host and parasite, vessel and divinity, victim and murderer; each body is capable of extinguishing the other, although one cannot survive alone. There is no human relationship more complex, more morally unstable than this.

The idea that a fetus is not just a full human but a superior and kinglike one—a being whose survival is so paramount that another person can be legally compelled to accept harm, ruin, or death to insure it—is a recent invention. For most of history, women ended unwanted pregnancies as they needed to, taking herbal or plant-derived preparations on their own or with the help of female healers and midwives, who presided over all forms of treatment and care connected with pregnancy. They were likely enough to think that they were simply restoring their menstruation, treating a blockage of blood. Pregnancy was not confirmed until “quickening,” the point at which the pregnant person could feel fetal movement, a measurement that relied on her testimony. Then as now, there was often nothing that distinguished the result of an abortion—the body expelling fetal tissue—from a miscarriage.

Ancient records of abortifacient medicine are plentiful; ancient attempts to regulate abortion are rare. What regulations existed reflect concern with women’s behavior and marital propriety, not with fetal life. The Code of the Assura, from the eleventh century B.C.E., mandated death for married women who got abortions without consulting their husbands; when husbands beat their wives hard enough to make them miscarry, the punishment was a fine. The first known Roman prohibition on abortion dates to the second century and prescribes exile for a woman who ends her pregnancy, because “it might appear scandalous that she should be able to deny her husband of children without being punished.” Likewise, the early Christian Church opposed abortion not as an act of murder but because of its association with sexual sin. (The Bible offers ambiguous guidance on the question of when life begins: Genesis 2:7 arguably implies that it begins at first breath; Exodus 21:22-24 suggests that, in Old Testament law, a fetus was not considered a person; Jeremiah 1:5 describes God’s hand in creation even “before I formed you in the womb.” Nowhere does the Bible clearly and directly address abortion.) Augustine, in the fourth century, favored the idea that God endowed a fetus with a soul only after its body was formed—a point that Augustine placed, in line with Aristotelian tradition, somewhere between forty and eighty days into its development. “There cannot yet be a live soul in a body that lacks sensation when it is not formed in flesh, and so not yet endowed with sense,” he wrote. This was more or less the Church’s official position; it was affirmed eight centuries later by Thomas Aquinas.

In the early modern era, European attitudes began to change. The Black Death had dramatically lowered the continent’s population, and dealt a blow to most forms of economic activity; the Reformation had weakened the Church’s position as the essential intermediary between the layman and God. The social scientist Silvia Federici has argued, in her book “ Caliban and the Witch ,” that church and state waged deliberate campaigns to force women to give birth, in service of the emerging capitalist economy. “Starting in the mid-16th century, while Portuguese ships were returning from Africa with their first human cargoes, all the European governments began to impose the severest penalties against contraception, abortion, and infanticide,” Federici notes. Midwives and “wise women” were prosecuted for witchcraft, a catchall crime for deviancy from procreative sex. For the first time, male doctors began to control labor and delivery, and, Federici writes, “in the case of a medical emergency” they “prioritized the life of the fetus over that of the mother.” She goes on: “While in the Middle Ages women had been able to use various forms of contraceptives, and had exercised an undisputed control over the birthing process, from now on their wombs became public territory, controlled by men and the state.”

Martin Luther and John Calvin, the most influential figures of the Reformation, did not address abortion at any length. But Catholic doctrine started to shift, albeit slowly. In 1588, Pope Sixtus V labelled both abortion and contraception as homicide. This pronouncement was reversed three years later, by Pope Gregory XIV, who declared that abortion was only homicide if it took place after ensoulment, which he identified as occurring around twenty-four weeks into a pregnancy. Still, theologians continued to push the idea of embryonic humanity; in 1621, the physician Paolo Zacchia, an adviser to the Vatican, proclaimed that the soul was present from the moment of conception. Still, it was not until 1869 that Pope Pius IX affirmed this doctrine, proclaiming abortion at any point in pregnancy to be a sin punishable by excommunication.

When I found out I was pregnant, at the beginning of 2020, I wondered how the experience would change my understanding of life, of fetal personhood, of the morality of reproduction. It’s been years since I traded the echo chamber of evangelical Texas for the echo chamber of progressive Brooklyn, but I can still sometimes feel the old world view flickering, a photographic negative underneath my vision. I have come to believe that abortion should be universally accessible, regulated only by medical codes and ethics, and not by the criminal-justice system. Still, in passing moments, I can imagine upholding the idea that our sole task when it comes to protecting life is to end the practice of abortion; I can imagine that seeming profoundly moral and unbelievably urgent. I would only need to think of the fetus in total isolation—to imagine that it were not formed and contained by another body, and that body not formed and contained by a family, or a society, or a world.

As happens to many women, though, I became, if possible, more militant about the right to an abortion in the process of pregnancy, childbirth, and caregiving. It wasn’t just the difficult things that had this effect—the paralyzing back spasms, the ragged desperation of sleeplessness, the thundering doom that pervaded every cell in my body when I weaned my child. And it wasn’t just my newly visceral understanding of the anguish embedded in the facts of American family life. (A third of parents in one of the richest countries in the world struggle to afford diapers ; in the first few months of the pandemic , as Jeff Bezos’s net worth rose by forty-eight billion dollars, sixteen per cent of households with children did not have enough to eat.) What multiplied my commitment to abortion were the beautiful things about motherhood: in particular, the way I felt able to love my baby fully and singularly because I had chosen to give my body and life over to her. I had not been forced by law to make another person with my flesh, or to tear that flesh open to bring her into the world; I hadn’t been driven by need to give that new person away to a stranger in the hope that she would never go to bed hungry. I had been able to choose this permanent rearrangement of my existence. That volition felt sacred.

Abortion is often talked about as a grave act that requires justification, but bringing a new life into the world felt, to me, like the decision that more clearly risked being a moral mistake. The debate about abortion in America is “rooted in the largely unacknowledged premise that continuing a pregnancy is a prima facie moral good,” the pro-choice Presbyterian minister Rebecca Todd Peters writes . But childbearing, Peters notes, is a morally weighted act, one that takes place in a world of limited and unequally distributed resources. Many people who get abortions—the majority of whom are poor women who already have children—understand this perfectly well. “We ought to take the decision to continue a pregnancy far more seriously than we do,” Peters writes.

I gave birth in the middle of a pandemic that previewed a future of cross-species viral transmission exacerbated by global warming, and during a summer when ten million acres on the West Coast burned . I knew that my child would not only live in this degrading world but contribute to that degradation. (“Every year, the average American emits enough carbon to melt ten thousand tons of ice in the Antarctic ice sheets,” David Wallace-Wells writes in his book “ The Uninhabitable Earth .”) Just before COVID arrived, the science writer Meehan Crist published an essay in the London Review of Books titled “Is it OK to have a child?” (The title alludes to a question that Alexandria Ocasio-Cortez once asked in a live stream, on Instagram.) Crist details the environmental damage that we are doing, and the costs for the planet and for us and for those who will come after. Then she turns the question on its head. The idea of choosing whether or not to have a child, she writes, is predicated on a fantasy of control that “quickly begins to dissipate when we acknowledge that the conditions for human flourishing are distributed so unevenly, and that, in an age of ecological catastrophe, we face a range of possible futures in which these conditions no longer reliably exist.”

In late 2021, as Omicron brought New York to another COVID peak, a Gen Z boy in a hoodie uploaded a TikTok , captioned “yall better delete them baby names out ya notes its 60 degrees in december.” By then, my baby had become a toddler. Every night, as I set her in the crib, she chirped good night to the elephants, koalas, and tigers on the wall, and I tried not to think about extinction. My decision to have her risked, or guaranteed, additional human suffering; it opened up new chances for joy and meaning. There is unknowability in every reproductive choice.

As the German historian Barbara Duden writes in her book “ Disembodying Women ,” the early Christians believed that both the bodies that created life and the world that sustained it were proof of the “continual creative activity of God.” Women and nature were aligned, in this view, as the material sources of God’s plan. “The word nature is derived from nascitura , which means ‘birthing,’ and nature is imagined and felt to be like a pregnant womb, a matrix, a mother,” Duden writes. But, in recent decades, she notes, the natural world has begun to show its irreparable damage. The fetus has been left as a singular totem of life and divinity, to be protected, no matter the costs, even if everything else might fall.

The scholar Katie Gentile argues that, in times of cultural crisis and upheaval, the fetus functions as a “site of projected and displaced anxieties,” a “fantasy of wholeness in the face of overwhelming anxiety and an inability to have faith in a progressive, better future.” The more degraded actual life becomes on earth, the more fervently conservatives will fight to protect potential life in utero. We are locked into the destruction of the world that birthed all of us; we turn our attention, now, to the worlds—the wombs—we think we can still control.

By the time that the Catholic Church decided that abortion at any point, for any reason, was a sin, scientists had identified the biological mechanism behind human reproduction, in which a fetus develops from an embryo that develops from a zygote, the single-celled organism created by the union of egg and sperm. With this discovery, in the mid-nineteenth century, women lost the most crucial point of authority over the stories of their pregnancies. Other people would be the ones to tell us, from then on, when life began.

At the time, abortion was largely unregulated in the United States, a country founded and largely populated by Protestants. But American physicians, through the then newly formed American Medical Association, mounted a campaign to criminalize it, led by a gynecologist named Horatio Storer, who once described the typical abortion patient as a “wretch whose account with the Almighty is heaviest with guilt.” (Storer was raised Unitarian but later converted to Catholicism.) The scholars Paul Saurette and Kelly Gordon have argued that these doctors, whose profession was not as widely respected as it would later become, used abortion “as a wedge issue,” one that helped them portray their work “as morally and professionally superior to the practice of midwifery.” By 1910, abortion was illegal in every state, with exceptions only to save the life of “the mother.” (The wording of such provisions referred to all pregnant people as mothers, whether or not they had children, thus quietly inserting a presumption of fetal personhood.) A series of acts known as the Comstock laws had rendered contraception, abortifacient medicine, and information about reproductive control widely inaccessible, by criminalizing their distribution via the U.S. Postal Service. People still sought abortions, of course: in the early years of the Great Depression, there were as many as seven hundred thousand abortions annually. These underground procedures were dangerous; several thousand women died from abortions every year.

This is when the contemporary movements for and against the right to abortion took shape. Those who favored legal abortion did not, in these years, emphasize “choice,” Daniel K. Williams notes in his book “ Defenders of the Unborn .” They emphasized protecting the health of women, protecting doctors, and preventing the births of unwanted children. Anti-abortion activists, meanwhile, argued, as their successors do, that they were defending human life and human rights. The horrors of the Second World War gave the movement a lasting analogy: “Logic would lead us from abortion to the gas chamber,” a Catholic clergyman wrote, in October, 1962.

Ultrasound imaging, invented in the nineteen-fifties, completed the transformation of pregnancy into a story that, by default, was narrated to women by other people—doctors, politicians, activists. In 1965, Life magazine published a photo essay by Lennart Nilsson called “ Drama of Life Before Birth ,” and put the image of a fetus at eighteen weeks on its cover. The photos produced an indelible, deceptive image of the fetus as an isolated being—a “spaceman,” as Nilsson wrote, floating in a void, entirely independent from the person whose body creates it. They became totems of the anti-abortion movement; Life had not disclosed that all but one had been taken of aborted fetuses, and that Nilsson had lit and posed their bodies to give the impression that they were alive.

In 1967, Colorado became the first state to allow abortion for reasons other than rape, incest, or medical emergency. A group of Protestant ministers and Jewish rabbis began operating an abortion-referral service led by the pastor of Judson Memorial Church, in Manhattan; the resulting network of pro-choice clerics eventually spanned the country, and referred an estimated four hundred and fifty thousand women to safe abortions. The evangelical magazine Christianity Today held a symposium of prominent theologians, in 1968, which resulted in a striking statement: “Whether or not the performance of an induced abortion is sinful we are not agreed, but about the necessity and permissibility for it under certain circumstances we are in accord.” Meanwhile, the priest James McHugh became the director of the National Right to Life Committee, and equated fetuses to the other vulnerable people whom faithful Christians were commanded to protect: the old, the sick, the poor. As states began to liberalize their abortion laws, the anti-abortion movement attracted followers—many of them antiwar, pro-welfare Catholics—using the language of civil rights, and adopted the label “pro-life.”

W. A. Criswell, a Dallas pastor who served as president of the Southern Baptist Convention from 1968 to 1970, said, shortly after the Supreme Court issued its decision in Roe v. Wade , that “it was only after a child was born and had life separate from his mother that it became an individual person,” and that “it has always, therefore, seemed to me that what is best for the mother and the future should be allowed.” But the Court’s decision accelerated a political and theological transformation that was already under way: by 1979, Criswell, like the S.B.C., had endorsed a hard-line anti-abortion stance. Evangelical leadership, represented by such groups as Jerry Falwell’s Moral Majority , joined with Catholics to oppose the secularization of popular culture, becoming firmly conservative—and a powerful force in Republican politics. Bible verses that express the idea of divine creation, such as Psalm 139 (“For you created my innermost being; you knit me together in my mother’s womb,” in the New International Version’s translation), became policy explanations for prohibiting abortion.

In 1984, scientists used ultrasound to detect fetal cardiac activity at around six weeks’ gestation—a discovery that has been termed a “fetal heartbeat” by the anti-abortion movement, though a six-week-old fetus hasn’t yet formed a heart, and the electrical pulses are coming from cell clusters that can be replicated in a petri dish. At six weeks, in fact, medical associations still call the fetus an embryo; as I found out in 2020, you generally can’t even schedule a doctor’s visit to confirm your condition until you’re eight weeks along.

So many things that now shape the cultural experience of pregnancy in America accept and reinforce the terms of the anti-abortion movement, often with the implicit goal of making pregnant women feel special, or encouraging them to buy things. “Your baby,” every app and article whispered to me sweetly, wrongly, many months before I intuited personhood in the being inside me, or felt that the life I was forming had moved out of a liminal realm.

I tried to learn from that liminality. Hope was always predicated on uncertainty; there would be no guarantees of safety in this or any other part of life. Pregnancy did not feel like soft blankets and stuffed bunnies—it felt cosmic and elemental, like volcanic rocks grinding, or a wild plant straining toward the sun. It was violent even as I loved it. “Even with the help of modern medicine, pregnancy still kills about 800 women every day worldwide,” the evolutionary biologist Suzanne Sadedin points out in an essay titled “War in the womb.” Many of the genes that activate during embryonic development also activate when a body has been invaded by cancer, Sadedin notes; in ectopic pregnancies, which are unviable by definition and make up one to two per cent of all pregnancies, embryos become implanted in the fallopian tube rather than the uterus, and “tunnel ferociously toward the richest nutrient source they can find.” The result, Sadedin writes, “is often a bloodbath.”

The Book of Genesis tells us that the pain of childbearing is part of the punishment women have inherited from Eve. The other part is subjugation to men: “Your desire will be for your husband and he will rule over you,” God tells Eve. Tertullian, a second-century theologian, told women, “You are the devil’s gateway: you are the unsealer of the (forbidden) tree: you are the first deserter of the divine law: you are she who persuaded him whom the devil was not valiant enough to attack.” The idea that guilt inheres in female identity persists in anti-abortion logic: anything a woman, or a girl, does with her body can justify the punishment of undesired pregnancy, including simply existing.

If I had become pregnant when I was a thirteen-year-old Texan , I would have believed that abortion was wrong, but I am sure that I would have got an abortion. For one thing, my Christian school did not allow students to be pregnant. I was aware of this, and had, even then, a faint sense that the people around me grasped, in some way, the necessity of abortion—that, even if they believed that abortion meant taking a life, they understood that it could preserve a life, too.

One need not reject the idea that life in the womb exists or that fetal life has meaning in order to favor the right to abortion; one must simply allow that everything, not just abortion, has a moral dimension, and that each pregnancy occurs in such an intricate web of systemic and individual circumstances that only the person who is pregnant could hope to evaluate the situation and make a moral decision among the options at hand. A recent survey found that one-third of Americans believe life begins at conception but also that abortion should be legal. This is the position overwhelmingly held by American Buddhists, whose religious tradition casts abortion as the taking of a human life and regards all forms of life as sacred but also warns adherents against absolutism and urges them to consider the complexity of decreasing suffering, compelling them toward compassion and respect.

There is a Buddhist ritual practiced primarily in Japan, where it is called mizuko kuyo : a ceremony of mourning for miscarriages, stillbirths, and aborted fetuses. The ritual is possibly ersatz; critics say that it fosters and preys upon women’s feelings of guilt. But the scholar William LaFleur argues, in his book “ Liquid Life ,” that it is rooted in a medieval Japanese understanding of the way the unseen world interfaces with the world of humans—in which being born and dying are both “processes rather than fixed points.” An infant was believed to have entered the human world from the realm of the gods, and move clockwise around a wheel as she grew older, eventually passing back into the spirit realm on the other side. But some infants were mizuko , or water babies: floating in fluids, ontologically unstable. These were the babies who were never born. A mizuko , whether miscarried or aborted—and the two words were similar: kaeru , to go back, and kaesu , to cause to go back—slipped back, counterclockwise, across the border to the realm of the gods.

There is a loss, I think, entailed in abortion—as there is in miscarriage, whether it occurs at eight or twelve or twenty-nine weeks. I locate this loss in the irreducible complexity of life itself, in the terrible violence and magnificence of reproduction, in the death that shimmered at the edges of my consciousness in the shattering moment that my daughter was born. This understanding might be rooted in my religious upbringing—I am sure that it is. But I wonder, now, how I would square this: that fetuses were the most precious lives in existence, and that God, in His vision, already chooses to end a quarter of them. The fact that a quarter of women, regardless of their beliefs, also decide to end pregnancies at some point in their lifetimes: are they not acting in accordance with God’s plan for them, too? ♦

More on Abortion and Roe v. Wade

In the post-Roe era, letting pregnant patients get sicker— by design .

The study that debunks most anti-abortion arguments .

Of course the Constitution has nothing to say about abortion .

How the real Jane Roe shaped the abortion wars.

Black feminists defined abortion rights as a matter of equality, not just “choice.”

Recent data suggest that taking abortion pills at home is as safe as going to a clinic. 

When abortion is criminalized, women make desperate choices .

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By Maya Jasanoff

By Zadie Smith

By Anna Russell

By Paul Elie

Princeton Legal Journal

The First Amendment and the Abortion Rights Debate

Sofia Cipriano

4 Prin.L.J.F. 12

Following Dobbs v. Jackson ’s (2022) reversal of Roe v. Wade (1973) — and the subsequent revocation of federal abortion protection — activists and scholars have begun to reconsider how to best ground abortion rights in the Constitution. In the past year, numerous Jewish rights groups have attempted to overturn state abortion bans by arguing that abortion rights are protected by various state constitutions’ free exercise clauses — and, by extension, the First Amendment of the U.S. Constitution. While reframing the abortion rights debate as a question of religious freedom is undoubtedly strategic, the Free Exercise Clause is not the only place to locate abortion rights: the Establishment Clause also warrants further investigation. 

Roe anchored abortion rights in the right to privacy — an unenumerated right with a long history of legal recognition. In various cases spanning the past two centuries, t he Supreme Court located the right to privacy in the First, Fourth, Fifth, Ninth, and Fourteenth Amendments . Roe classified abortion as a fundamental right protected by strict scrutiny, meaning that states could only regulate abortion in the face of a “compelling government interest” and must narrowly tailor legislation to that end. As such, Roe ’s trimester framework prevented states from placing burdens on abortion access in the first few months of pregnancy. After the fetus crosses the viability line — the point at which the fetus can survive outside the womb  — states could pass laws regulating abortion, as the Court found that   “the potentiality of human life”  constitutes a “compelling” interest. Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) later replaced strict scrutiny with the weaker “undue burden” standard, giving states greater leeway to restrict abortion access. Dobbs v. Jackson overturned both Roe and Casey , leaving abortion regulations up to individual states. 

While Roe constituted an essential step forward in terms of abortion rights, weaknesses in its argumentation made it more susceptible to attacks by skeptics of substantive due process. Roe argues that the unenumerated right to abortion is implied by the unenumerated right to privacy — a chain of logic which twice removes abortion rights from the Constitution’s language. Moreover, Roe’s trimester framework was unclear and flawed from the beginning, lacking substantial scientific rationale. As medicine becomes more and more advanced, the arbitrariness of the viability line has grown increasingly apparent.  

As abortion rights supporters have looked for alternative constitutional justifications for abortion rights, the First Amendment has become increasingly more visible. Certain religious groups — particularly Jewish groups — have argued that they have a right to abortion care. In Generation to Generation Inc v. Florida , a religious rights group argued that Florida’s abortion ban (HB 5) constituted a violation of the Florida State Constitution: “In Jewish law, abortion is required if necessary to protect the health, mental or physical well-being of the woman, or for many other reasons not permitted under the Act. As such, the Act prohibits Jewish women from practicing their faith free of government intrusion and thus violates their privacy rights and religious freedom.” Similar cases have arisen in Indiana and Texas. Absent constitutional protection of abortion rights, the Christian religious majorities in many states may unjustly impose their moral and ethical code on other groups, implying an unconstitutional religious hierarchy. 

Cases like Generation to Generation Inc v. Florida may also trigger heightened scrutiny status in higher courts; The Religious Freedom Restoration Act (1993) places strict scrutiny on cases which “burden any aspect of religious observance or practice.”

But framing the issue as one of Free Exercise does not interact with major objections to abortion rights. Anti-abortion advocates contend that abortion is tantamount to murder. An anti-abortion advocate may argue that just as religious rituals involving human sacrifice are illegal, so abortion ought to be illegal. Anti-abortion advocates may be able to argue that abortion bans hold up against strict scrutiny since “preserving potential life” constitutes a “compelling interest.”

The question of when life begins—which is fundamentally a moral and religious question—is both essential to the abortion debate and often ignored by left-leaning activists. For select Christian advocacy groups (as well as other anti-abortion groups) who believe that life begins at conception, abortion bans are a deeply moral issue. Abortion bans which operate under the logic that abortion is murder essentially legislate a definition of when life begins, which is problematic from a First Amendment perspective; the Establishment Clause of the First Amendment prevents the government from intervening in religious debates. While numerous legal thinkers have associated the abortion debate with the First Amendment, this argument has not been fully litigated. As an amicus brief filed in Dobbs by the Freedom From Religion Foundation, Center for Inquiry, and American Atheists  points out, anti-abortion rhetoric is explicitly religious: “There is hardly a secular veil to the religious intent and positions of individuals, churches, and state actors in their attempts to limit access to abortion.” Justice Stevens located a similar issue with anti-abortion rhetoric in his concurring opinion in Webster v. Reproductive Health Services (1989) , stating: “I am persuaded that the absence of any secular purpose for the legislative declarations that life begins at conception and that conception occurs at fertilization makes the relevant portion of the preamble invalid under the Establishment Clause of the First Amendment to the Federal Constitution.” Judges who justify their judicial decisions on abortion using similar rhetoric blur the line between church and state. 

Framing the abortion debate around religious freedom would thus address the two main categories of arguments made by anti-abortion activists: arguments centered around issues with substantive due process and moral objections to abortion. 

Conservatives may maintain, however, that legalizing abortion on the federal level is an Establishment Clause violation to begin with, since the government would essentially be imposing a federal position on abortion. Many anti-abortion advocates favor leaving abortion rights up to individual states. However, in the absence of recognized federal, constitutional protection of abortion rights, states will ban abortion. Protecting religious freedom of the individual is of the utmost importance  — the United States government must actively intervene in order to uphold the line between church and state. Protecting abortion rights would allow everyone in the United States to act in accordance with their own moral and religious perspectives on abortion. 

Reframing the abortion rights debate as a question of religious freedom is the most viable path forward. Anchoring abortion rights in the Establishment Clause would ensure Americans have the right to maintain their own personal and religious beliefs regarding the question of when life begins. In the short term, however, litigants could take advantage of Establishment Clauses in state constitutions. Yet, given the swing of the Court towards expanding religious freedom protections at the time of writing, Free Exercise arguments may prove better at securing citizens a right to an abortion. 

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The Hastings Center

• Bioethics and Policy—A History Daniel Callahan
• The Hastings Center Bioethics Timeline
• Abortion Bonnie Steinbock
• Aging Daniel Callahan
• Brain Injury: Neuroscience and Neuroethics Joseph J. Fins
• Clinical Trials Christine Grady, RN, PhD
• Climate Change David B. Resnik
• Conflict of Interest in Biomedical Research and Clinical Practice Josephine Johnston, Bethany Brumbaugh
• Conscience Clauses, Health Care Providers, and Parents Nancy Berlinger
• Disaster Planning and Public Health Bruce Jennings
• End-of-Life Care Kathy L. Cerminara, Alan Meisel
• Enhancing Humans Cristina J. Kapustij, Mark S. Frankel
• Environment, Ethics, and Human Health David B. Resnik, Christopher J. Portier
• Family Caregiving Carol Levine
• Genomics, Behavior, and Social Outcomes Daphne O. Martschenko, Lucas J. Matthews
• Law Enforcement and Genetic Data James W. Hazel, Ellen Wright Clayton
• Medical Aid-in-Dying Timothy E. Quill, Bernard Sussman
• Nature, Human Nature, and Biotechnology Gregory E. Kaebnick
• Neonatal Care Jennifer McGuirl, Alan R. Fleischman
• Newborn Screening Mary Ann Baily
• Organ Transplantation Arthur Caplan, Brendan Parent
• Pandemics: The Ethics of Mandatory and Voluntary Interventions
• Public Health Ethics and Law Lawrence O. Gostin, Lindsay F. Wiley
• Quality Improvement Methods in Health Care Mary Ann Baily
• Racism and Health Equity Keisha Ray
• Research in Resource-Poor Countries Voo Teck Chuan, G. Owen Schaefer
• Sports Enhancement Thomas H. Murray
• Stem Cells Insoo Hyun
• Torture: The Bioethics Perspective Steven H. Miles

From Bioethics Briefings

• Abortion remains controversial.
• In recent years, several states, including Texas and Oklahoma, have passed abortion bans early in pregnancy.
• For nearly 50 years, there was a Constitutional right to abortion in the United States, established by the Supreme Court in Roe v. Wade in 1973
• The Supreme Court overturned Roe v. Wade in June 2022, eliminating the Constitutional right to abortion.
• A central ethical question in the abortion debate is over the moral status of the fetus.
• Opinions range from the belief that the fetus is a human being with full moral status and rights from conception to the belief that a fetus has no rights, even if it is human in a biological sense. Most Americans’ beliefs fall somewhere in the middle.
• Moral philosophers from various perspectives provide nuanced examinations of the abortion question that go beyond the standard political breakdowns.

Framing the Issue

Abortion has been one of the most divisive and emotionally charged issues in American politics. At one end of the debate are those who regard abortion as murder, a despicable and heinous crime. At the other end of the spectrum are those who regard any attempt to restrict abortion as an egregious violation of women’s rights to make their own decisions about their bodies and what is best for them and their families. Most Americans are somewhere in the middle.

A central philosophical question in the abortion debate concerns the moral status of the embryo and fetus. If the fetus is a person, with the same right to life as any human being who has been born, it would seem that very few, if any, abortions could be justified, because it is not morally permissible to kill children because they are unwanted or illegitimate or disabled. However, the morality of abortion is not settled so straightforwardly. Even if one accepts the argument that the fetus is a person, it does not automatically follow that it has a right to the use of the pregnant woman’s body. Thus, the morality of abortion depends not only on the moral status of the fetus, but also on whether the pregnant woman has an obligation to continue to gestate the fetus.

Ethical Considerations Around Abortion

Public opinion on abortion falls into three camps—conservative, liberal, and moderate (or gradualist)—each of which draws on both science and ethical thinking.

Conservative

Conservative opposition to abortion stems from the conviction that the fetus is a human being, with the same rights as any born human being, from the beginning of pregnancy onward. Some conservative groups—such as the Catholic Church—consider the fetus to be a human being with full moral rights even earlier than the beginning of pregnancy, which occurs when the embryo implants in the uterus. The Church regards the embryo as a full human being from conception (the conjoining of sperm and egg). This is because at conception the embryo receives its own unique genetic code, distinct from that of its mother or father. Therefore, Catholic doctrine regards conception, not implantation, as the beginning of the life of a human being.

Although conservatives concede that the fetus changes dramatically during gestation, they do not accept these changes as relevant to moral standing. Conservatives argue that there is no stage of development at which we can say, now we have a human being, whereas a day or a week or a month earlier we did not. Any attempt to place the onset of humanity at a particular moment—whether it be when brain waves appear, or when the fetus begins to look human, or when quickening, sentience, or viability occur —is bound to be arbitrary because all of these stages will occur if the fetus is allowed to grow and develop.

A secular antiabortion argument given by Don Marquis in 1989 differs from the traditional conservative view in that it is not based on the fetus’s being human, thus avoiding the charge of “speciesism.” Rather, Marquis argues that abortion is wrong for the same reason that killing anyone is wrong—namely, that killing deprives its victim of a valuable future, what he calls “a future like ours.” It is possible that some nonhumans (some animals or aliens) have a future like ours. If so, then killing them is also wrong.

This raises two questions about what it is to have a future like ours. First, what precisely is involved in this notion? Does it essentially belong to rational, future-oriented, plan-making beings? If so, then killing most nonhuman animals would not be wrong, but neither would killing those who are severely developmentally disabled. Second, at what point does the life of a being with a future like ours start? Marquis assumes that we are essentially human animals, so our lives start with the beginning of our organisms. But Jeff McMahan denies this, arguing that we are essentially embodied minds, and not human organisms. On McMahan’s view, our lives do not start until our organism becomes conscious, probably some time in the second trimester. Early abortion, on his view, does not kill someone with a future like ours, but rather prevents that individual from coming into existence – in much the way contraception does.

The pro-choice position on abortion is often referred to as the liberal view. Mary Anne Warren provides a classic statement of the liberal view. Warren does not dispute the conservative’s claim that the fetus is biologically human, but she denies that biological humanity is either necessary or sufficient for personhood and a right to life. She argues that basing moral standing on species membership is arbitrary, and maintains that it is the killing of persons , not humans, that is wrong. Indeed, Warren thinks that the conservative is guilty of a logical mistake: confusing biological humans and persons. Persons are beings with certain psychological traits, including sentience, consciousness, the capacity for rational thought, and the ability to use language. There may be some nonhuman persons (e.g., some animals, extraterrestrial aliens), and there may be biological humans that are not persons, including early gestation fetuses, who have no person-making characteristics. By the end of the second trimester, fetuses are probably sentient, but even late gestation fetuses are less personlike than most mammals who are not considered to be persons.

In 1971, Judith Thomson gave a completely different pro-choice argument from the classic liberal one, in which she maintained that even if the personhood of the fetus were granted, for the sake of the argument, this would not settle the morality of abortion because the fetus’s right to life does not necessarily give it a right to use the pregnant woman’s body. No one, Thomson says, has the right to use your body unless you give him permission—not even if he needs it for life itself. At least in the case of rape, the pregnant woman has not given the fetus the right to use her body. (Thus, Thomson’s argument, somewhat ironically for an article entitled “A Defense of Abortion,” provides those who are generally anti-choice with a rationale for making an exception in the case of rape, as do many pro-lifers—though not the Catholic Church.) Thomson maintains that whether a woman has a moral obligation to allow a fetus to remain in her body is a separate question from whether the fetus is a person with a right to life, and depends instead on the amount of sacrifice or burden it imposes on her.

In 2003, Margaret Little argued that while abortion is not murder, neither is it necessarily moral. A pregnant woman and her fetus are not strangers; she is biologically its mother which provides her with some reason to protect its life. However, she may have duties of care to others, such as her existing children, which would be more difficult to fulfill if she has another child. The typical abortion patient is already a mother, single, and low-income or poor. Although Little does not regard the fetus as a person, it is a “burgeoning human life,” and as such is worthy of respect. But abortion does not necessarily conflict with respect for human life. Many women regard bringing a child into the world when they are not able to care for it properly as itself disrespectful of human life.

The moderate, or gradualist, agrees with the classic liberal that an early fetus, much less a one-celled zygote, is not a person, but agrees with the conservative that the late-gestation fetus merits some moral concern because it is virtually identical to a born infant. Thus, the moderate thinks that early abortions are morally better than late ones and that the reasons for having one should be stronger as the pregnancy progresses. A reason that might justify an early abortion, such as not wanting to become a mother, would not justify an abortion in the seventh month to the moderate.

Fetal Development Timeline (pdf)

The Legal Perspective

In Roe v. Wade , the Supreme Court based its finding of a woman’s constitutional right to abortion prior to fetal viability on two factors: the legal status of the fetus and the woman’s right to privacy. Concluding that outside of abortion law, the unborn had never been treated as full legal persons, the Court then looked to see if there were any state interests compelling enough to override a woman’s right to make this momentous personal decision for herself. It decided that there were none at all in the first trimester of pregnancy. In the second trimester, the state’s interest in protecting maternal health allows for some restrictions, so long as these are actually related to maternal health and not the protection of the life of the fetus. The state’s interest in protecting potential life becomes “compelling,” and trumps the woman’s right to privacy only after the fetus becomes viable, which in 1973 was somewhere between 24 and 28 weeks. Today, some premature infants are being saved as early as 22 weeks. However, it appears that, absent development of an artificial placenta, 22 weeks represents an absolute lower limit on viability. After viability, states may prohibit abortion altogether if they choose, unless continuing the pregnancy would threaten the woman’s life or health.

Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) pitted the Justices who wanted to reverse Roe against those who wished to preserve it. Neither side prevailed and the result was a compromise written by Justices O’Connor, Kennedy, and Souter. It upheld Roe’s central finding, that women have a constitutionally protected right to choose abortion, prior to viability, while rejecting the trimester framework. Casey held that the State’s profound interest in protecting potential life existed at all stages of pregnancy, not just after viability. States may enact procedures and rules reflecting its preference for childbirth over abortion, so long as these rules and procedures do not constitute an “undue burden” on the woman’s choice.

The Court interpreted the undue burden standard as permitting a requirement that required doctors to provide information about the abortion procedure, the relative risks of abortion and childbirth, embryonic and fetal development, and available resources should the woman choose to carry to term, provided the information given to the woman is truthful and not misleading. This qualification has not always been followed. In several states, doctors are required to tell women seeking abortions that having an abortion increases their risk of breast cancer. While not exactly a lie, this is certainly misleading. Having a full term pregnancy can reduce the risk of breast cancer, but having an abortion does not increase a woman’s risk of developing breast cancer. The Court also upheld a waiting period of 24 hours, as its intent is to make the abortion decision more informed and deliberate. Yet the actual effect of waiting periods is often to make abortion access much more difficult, especially in places where women have to travel long distances to find an abortion provider.

After attempts to overturn Roe failed, a new strategy of restricting abortions was developed. This strategy included outlawing particular methods of abortion, such as partial-birth abortion, imposing time limits based on claims of fetal sentience, and imposing restrictions on clinics and doctors who perform abortions in the name of protecting maternal health.

Fetal Sentience

In 2010, Nebraska banned all abortion after 20 weeks, on the ground that the fetus at that stage can feel pain. Subsequently, more than a third of states passed similar laws. In 2015, the Pain-Capable Unborn Child Protection Act passed the House of Representatives; the motion to consider the bill in the Senate was withdrawn. The bill prohibited a physician from performing an abortion after 20 weeks, except where necessary to save the life of a pregnant woman (excluding psychological or emotional conditions) or in cases of rape or incest against a minor.

Are 20-week old fetuses sentient? This claim is rejected by the American College of Obstetricians and Gynecologists, which says it knows of no legitimate scientific information that supports the claim that a 20-week old fetus can feel pain. Other researchers think that while we do not know when fetuses become sentient, it might occur as early as 17 weeks. Utah became the first state to require doctors to give anesthesia to women having an abortion at 20 weeks or later. The law, which went into effect in May 2016, would not apply to women having abortions needed to save their lives, or in cases of rape or incest. An obstetrician-gynecologist in Utah, who spends half of a Saturday each month in an abortion clinic, protested, “You’re asking me to invent a procedure that doesn’t have any research to back it up. You want me to experiment on my patients.”

Protecting Women’s Health

Casey allowed states to restrict abortions based on a concern for women’s health, so long as the restrictions did not impose an undue burden on the choice. A key issue raised by the Supreme Court case Whole Woman’s Health v. Hellerstedt, decided in 2016, was how judges should evaluate such health-justified restrictions. The case concerned a 2013 Texas law that required any physician performing an abortion to have admitting privileges at a hospital not further than 30 miles from the abortion facility, and required any abortion facility to meet the minimum standards for ambulatory surgical centers. The District Court said that the law was unconstitutional because of its impact on access to abortion in Texas. Many abortion facilities would be unable to meet these requirements and would be forced to close, thereby severely limiting access to abortion. Moreover, the law’s provisions were unnecessary to protect women’s health. Abortion is an extremely safe medical procedure with very low rates of complications and virtually no deaths. In fact, although childbirth is 14 times more likely than abortion to result in death, Texas law allows a midwife to oversee childbirth in the patient’s own home. Thus, the new law was a solution to which there was no problem.

The Fifth Circuit reversed the District Court decision. One of its more startling claims was that states are entitled to impose health-justified restrictions, which are not subject to judicial review. In a 5-3 decision, the Supreme Court roundly rejected this claim. Writing for the majority, Justice Breyer said, “. . . the Court, when determining the constitutionality of laws regulating abortion procedures, has placed considerable weight upon evidence and argument presented in judicial procedures.” In other words, states may not simply assert that the restrictions are necessary, but must have factual evidence to show that they are. Moreover, the Court has an independent constitutional duty to review factual findings where constitutional rights are at stake.

Despite new restrictions on abortion, the core principle of  Roe  and  Casey– that the right to abortion is protected by the Constitution — was upheld. But that was soon to change.

The Change in the Composition of the Supreme Court

Between 1991 and 2020, five Justices openly hostile to abortion (Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Barrett) were appointed to the Court, making the 6-3 decision to reverse Roe possible.

The change in the Court’s composition emboldened several states to pass abortion bans much earlier than viability. One of the most restrictive, signed into law by Texas Governor Greg Abbott in May  2021, prohibits abortions after a fetal heartbeat is detected, usually after six weeks of pregnancy. About a year later, Oklahoma adopted a similar restriction and made illegal abortion a felony punishable by up to 10 years in prison. A bill introduced in Louisiana (House Bill 813) in May 2022 allowed criminal charges for murder to be brought against those who perform or have abortions. Its sponsor, Republican Danny McCormick, justified the bill by saying, “it is actually very simple: Abortion is murder.” Louisiana Right to Life did not support the bill, since their policy is that “abortion-vulnerable women” should not be treated as criminals. The group also called the bill unnecessary since Louisiana already had a trigger law that would outlaw abortion, except when necessary to save the life of the mother, if Roe were overturned. An amended version of HB 813, which removed the language about charging women having abortions with murder and exempted birth control from being outlawed, did pass the House.

Overturning Roe and Casey

Dobbs v. Jackson Women’s Health (June 2022) .  The case concerned a Mississippi law banning all abortions after 15 weeks gestational age except in medical emergencies and in the case of severe fetal abnormality. Characterizing the decisions in Roe and Casey as “egregiously wrong,” the majority held that:

“. . . Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”

With the overturning of Roe and Casey , the matter of abortion has been returned to the states. Most abortions are banned in 14 states, while protected by state law or constitution in 21 states. (For updates, see Kaiser Health News Abortion Policy Tracker .) Abortion providers and advocates have challenged abortion bans in many states as violating the state constitution or another state law.

In his concurrence, Chief Justice Roberts said that while he agreed with the majority’s conclusion to uphold Mississippi’s law, he would have preferred a narrower approach based on the principle of judicial restraint. Instead of “repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed applying the doctrine of stare decisis “, the Court could simply have rejected viability as the point at which the state’s interest in protecting potential life outweighed the woman’s right to terminate her pregnancy, and upheld Mississippi’s right to ban abortions after 15 weeks. The majority rejected this approach, in part because it “would only put off the day when we would be forced to confront the question we now decide. The turmoil wrought by Roe and Casey would be prolonged. It is far better–for this Court and the country–to face up to the real issue without further delay.”

Abortion After Dobbs

The claim that Dobbs will end the turmoil over abortion is dubious. Abortion rights activists have challenged trigger bans in a dozen states. Some have already been rejected by judges, but other cases continue. Most of the legal challenges nationwide seek to establish that state constitutions protect a right to abortion. President Biden has signed an executive order designed to ensure access to abortion medication and emergency contraception, leaving the details up to the secretary of health and human services.

Court cases have challenged the availability of medication abortion . Another issue likely to result in lawsuits is whether states can prevent their residents from traveling to other states to have abortions. Nor are legal battles necessarily limited to the states. Some anti-abortion activists are pushing for a federal ban on abortion, while some pro-choice advocates are pushing for a federal law to protect the right to abortion. Neither side has the 60 votes necessary, but that could change in the future.

The Supreme Court expressly noted that its opinion “is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth.” That leaves open the question whether states may confer legal personhood on embryos. May they punish women who have abortions under their homicide statutes, even executing them in death penalty states?

The extreme conservative position, taken by the official teachings of the Roman Catholic Church, regards even abortions necessary to save the life of the pregnant woman as illicit, since it is forbidden to kill one innocent human being in order to save the life of another. As of July 2022, all of the state anti-abortion laws and proposed laws make an exception for “medical emergencies,” but nothing in Dobbs requires states to make this exception. Moreover, the determination of what counts as a medical emergency can be extremely subjective. A pregnant woman may develop a condition that might be, but is not definitely, life-threatening. May a doctor perform an abortion in that case? Five women in Texas have filed a lawsuit saying that they were denied medically necessary abortions. Joined by two ob-gyns, they are seeking to clarify when abortion is permissible under state law.

Questions abound. How close to death must a woman be for doctors to act? Will doctors be willing to take the risk of possible jail time if they make a call that is later questioned?

Complications can arise in any pregnancy, but the inability to get an abortion for medical reasons is likely to impose particular burdens on pregnant patients with chronic illnesses and disabilities, including psychiatric conditions, diabetes, and heart conditions. Pregnancy may take years off their lives, but this would not be enough for them to get an abortion in states that provide an exemption only in the case of a “medical emergency” that “necessitate[s] the immediate performance or inducement of an abortion.”

Thus, Dobbs is likely to have a deleterious impact on the ability of doctors to care properly for their pregnant patients, as well as for some women who are not pregnant. The AMA condemned the decision as “an egregious allowance of government intrusion into the medical examination room, a direct attack on the practice of medicine and the patient-physician relationship, and a brazen violation of patients’ rights to evidence-based reproductive health services.” In the weeks after the Dobbs decision, there were reports of profound changes in other medical care, including for ectopic pregnancies and for women with lupus, which is treated with a medicine that can cause miscarriage.

There are no exceptions for pregnancies that result from rape or incest in Alabama, Arkansas, Florida, Kentucky, Louisiana, Missouri, Oklahoma, Ohio, South Dakota, Tennessee, or Texas. The rationale is that it is unjust to end a pregnancy because its father is a rapist. Those who favor exceptions for rape and incest regard it as equally unjust to force women to continue a pregnancy for which they have no responsibility.

The Impact of Dobbs Beyond Abortion

The loss of abortion rights is real and of great concern to many Americans, not only because of the impact this will have on the lives of women and their families, but also because a rejection of the constitutional right to privacy and substantive due process could have effects beyond abortion. On the face of it, the analysis in Dobbs applies to other rights that the Supreme Court has upheld, including the right of both married and unmarried couples to use contraceptives ( Griswold v. Connecticut , 1965, and Eisenstadt v. Baird , 1972), the right to marry a person of a different race ( Loving v. Virginia , 1967), the right to engage in private, consensual sexual acts ( Lawrence v. Texas , 2003), and the right to marry a person of the same sex ( Obergefell v. Hodges , 2015). None of these rights are mentioned in the Constitution, nor are they deeply rooted in this Nation’s history and tradition. This means, in the words of the dissenters (Breyer, Sotomayor, and Kagan) that “one of two things must be true. Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid-19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.”

The majority insisted that its decision “concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” But if other precedents fail the test for determining constitutional rights provided in Dobbs , why aren’t these cases also wrongly decided?

Same-Sex Marriage

In his separate concurring opinion, Justice Thomas forthrightly accepted this implication, saying, “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold , Lawrence , and Obergefell .” Thomas, unsurprisingly, did not mention Loving , perhaps because he assumes that discrimination based on race is prohibited by the Fourteenth Amendment’s guarantee of equal protection. The dissenters, however, note that the right to marry someone of a different race was not protected at the time of the adoption of the Fourteenth Amendment any more than the rights to abortion, contraception, to engage in private, consensual acts, or to marry a person of the same sex.

While anti-miscegenation laws are unlikely to garner much public support, the same may not be true for LGBTQ rights protected by Lawrence and Obergefell . Some far-right Republicans have expressed an interest in ending same-sex marriage . Texas Attorney General Ken Paxton has said that he would defend the state’s defunct sodomy law if the Supreme Court were to follow Thomas’s suggestion and revisit Lawrence .

Contraception, IVF

It seems unlikely that there would be much enthusiasm in the states for banning contraceptives in general, although some conservatives might favor rolling back the sexual revolution that stemmed from the Pill. Presumably, that would satisfy the rational-basis test that the Court identified as the standard for abortion restrictions or prohibition. Moreover, some forms of contraception, such as IUDs, that prevent a fertilized egg from implanting, might be prohibited under laws like Oklahoma’s that define persons as human beings from conception onwards.

IVF could also be adversely affected by Dobbs , because of the routine practice of discarding embryos. This occurs for two reasons. First, the creation of excess embryos enables fertility doctors to implant only one or two embryos per cycle, and to freeze the remainders for future use. This protects women from having to go through the onerous process of egg retrieval in future pregnancies. Freezing embryos has also facilitated single embryo transfer for good-prognosis patients, which has resulted in fewer twins and higher-multiple births, which are riskier for both mothers and babies than singleton births.

Second, it is now routine in IVF to test embryos for chromosomal defects and to discard affected embryos. This improves the chances for a successful pregnancy since embryos with chromosomal defects are less likely to implant and to miscarry. At this point, embryos created in labs are not explicitly targeted by state laws that ban abortion. Trigger laws in most states are aimed at preventing the termination of pregnancy, not regulating IVF embryos. That could change. A spokeswoman for Students for Life Action, a large national anti-abortion group, says that they are looking at IVF : “Protecting life from the very beginning is our ultimate goal, and in this new legal environment we are researching issues like IVF, especially considering a business model that, by design, ends most of the lives conceived in a lab.”  Ironically, laws intended to prevent the termination of pregnancies might deprive infertile couples from having a successful pregnancy.

On February 16, 2024, the Supreme Court of Alabama held that frozen embryos are children with respect to Alabama’s wrongful-death statutes. Some have claimed that this will disallow the discard of embryos by IVF clinics, but that is not obvious. Wrongful-death suits must demonstrate negligence, not simply causing death. Nevertheless, the implications of the court’s decision are unclear, creating anxiety among IVF providers and patients. The University of Alabama health system is pausing in vitro fertilization treatments while considering the implications of the court’s decision.

Care for Miscarrying Patients

Another area of concern is the medical care given to women with wanted pregnancies who miscarry. In what is known as a “missed miscarriage,” the fetus dies in the womb but is not expelled from the woman’s body. In an “incomplete miscarriage,” not all of the fetal tissue is expelled. These situations can cause infection that poses a threat to the woman’s life. The medical options are waiting and hoping that the woman miscarries naturally or intervening medically with either a surgical procedure (D&C) or abortion medication to remove the fetus or fetal tissue. Because these interventions are also used in abortion procedures, outlawing abortion could have a chilling effect on what doctors are willing to do.

In states with abortion bans, there are reports of doctors declining to perform any procedure that could be seen as an illegal abortion. In some cases, women have had to wait to miscarry, which could take weeks. Not only does this impose added emotional stress on women who have lost a wanted pregnancy, but it could even cost their lives. This happened in Ireland in 2012. Savita Halappanavar, 17 weeks pregnant, was admitted to hospital after a miscarriage was deemed inevitable. When she did not miscarry after her water broke, she discussed having a termination with the attending physician. This was denied because Irish law at the time forbade abortion if a heartbeat was still detectable. While they waited for the fetus’s heart to stop, Savita developed sepsis and died. The case was instrumental in getting abortion legalized in Ireland.

So far, no woman in the U.S. has died as a result of restrictive abortion laws, but some have come close. An ob-gyn in San Antonio, Tx., had to wait until the fetal heartbeat stopped to treat a miscarrying patient who had developed a dangerous womb infection. The delay caused complications which required her to have surgery, lose multiple liters of blood, and be put on a breathing machine. Texas law essentially requires doctors to commit malpractice.

Landmark cases like Quinlan (1976) and Cruzan (1990) relied on a constitutional right of privacy and substantive due process. The rejection by the Court of these principles could threaten well-established rights of patients to refuse life-saving care and to stipulate their wishes in that regard in advance directives.

At this point, it is impossible to predict all of the effects of overturning Roe and Casey . This much is clear: the battle over abortion rights is far from over.

Bonnie Steinbock , PhD, a Hastings Center fellow, is professor emeritus of philosophy at The University at Albany/State University of New York.

• Symposium: Seeking Reproductive Justice in the Next 50 Years. The Journal of Law, Medicine & Ethics, 51 (Fall 2023): 455.
• Linda Greenhouse and Reva Siegel, “Casey and the Clinic Closings: When ‘Protecting Health’ Obstructs Choice,” Yale Law Review 125 (2016): 1428-1531.
• Bonnie Steinbock, Life Before Birth: The Moral and Legal Status of Embryos and Fetuses, 2nd edition (Oxford University Press, 2011).
• Ronald Dworkin, “The Court and Abortion: Worse Than You Think,” New York Review of Books, May 31, 2007.
• Margaret Olivia Little, “The Morality of Abortion,” in Christopher Wellman and R.G. Frey, eds., A Companion to Applied Ethics (Blackwell Publishing, 2003).
• David Boonin, A Defense of Abortion (Cambridge University Press, 2002).
• Jeff McMahan, The Ethics of Killing: Problems at the Margins of Life (Oxford University Press, 2002).
• Susan Dwyer and Joel Feinberg, eds. The Problem of Abortion (Wadsworth Publishing Co., 1996).
• Sidney Callahan and Daniel Callahan, eds. Abortion: Understanding Differences (Plenum, 1984).
• Kristin Luker, Abortion and the Politics of Motherhood (University of California Press, 1984).
• Don Marquis, “Why Abortion Is Immoral,” Journal of Philosophy, April 1984.
• Donald H. Regan, "Rewriting Roe v. Wade." Michigan Law Review, August 1979.
• Mary Anne Warren, “On the Moral and Legal Status of Abortion,” The Monist, January 1973.
• Judith Thomson, “A Defense of Abortion,” Philosophy and Public Affairs, Winter 1971.
• Ethics and Abortion Resources from The Hastings Center
• Bonnie Steinbock, PhD Hastings Center Fellow and professor emeritus of philosophy at The University at Albany/State University of New York [email protected]
• Thomas H. Murray, PhD President Emeritus and Fellow, The Hastings Center [email protected]
• Maggie Little, BPhil, PhD Director, The Kennedy Institute of Ethics; Hastings Center Fellow [email protected]
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There Are More Than Two Sides to the Abortion Debate

Readers share their perspectives.

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Earlier this week I curated some nuanced commentary on abortion and solicited your thoughts on the same subject. What follows includes perspectives from several different sides of the debate. I hope each one informs your thinking, even if only about how some other people think.

We begin with a personal reflection.

Cheryl was 16 when New York State passed a statute legalizing abortion and 19 when Roe v. Wade was decided in 1973. At the time she was opposed to the change, because “it just felt wrong.” Less than a year later, her mother got pregnant and announced she was getting an abortion.

She recalled:

My parents were still married to each other, and we were financially stable. Nonetheless, my mother’s announcement immediately made me a supporter of the legal right to abortion. My mother never loved me. My father was physically abusive and both parents were emotionally and psychologically abusive on a virtually daily basis. My home life was hellish. When my mother told me about the intended abortion, my first thought was, “Thank God that they won’t be given another life to destroy.” I don’t deny that there are reasons to oppose abortion. As a feminist and a lawyer, I can now articulate several reasons for my support of legal abortion: a woman’s right to privacy and autonomy and to the equal protection of the laws are near the top of the list. (I agree with Ruth Bader Ginsburg that equal protection is a better legal rationale for the right to abortion than privacy.) But my emotional reaction from 1971 still resonates with me. Most people who comment on the issue, on both sides, do not understand what it is to go through childhood unloved. It is horrific beyond my powers of description. To me, there is nothing more immoral than forcing that kind of life on any child. Anti-abortion activists often like to ask supporters of abortion rights: “Well, what if your mother had decided to abort you?” All I can say is that I have spent a great portion of my life wishing that my mother had done exactly that.

Steven had related thoughts:

I have respect for the idea that there should be some restrictions on abortion. But the most fundamental, and I believe flawed, unstated assumptions of the anti-choice are that A) they are acting on behalf of the fetus, and more importantly B) they know what the fetus would want. I would rather not have been born than to have been born to a mother who did not want me. All children should be wanted children—for the sake of all concerned. You can say that different fetuses would “want” different things—though it’s hard to say a clump of cells “wants” anything. How would we know? The argument lands, as it does generally, with the question of who should be making that decision. Who best speaks in the fetus’s interests? Who is better positioned morally or practically than the expectant mother?

Geoff self-describes as “pro-life” and guilty of some hypocrisy. He writes:

I’m pro-life because I have a hard time with the dehumanization that comes with the extremes of abortion on demand … Should it be okay to get an abortion when you find your child has Down syndrome? What of another abnormality? Or just that you didn’t want a girl? Any argument that these are legitimate reasons is disturbing. But so many of the pro-life just don’t seem to care about life unless it’s a fetus they can force a woman to carry. The hypocrisy is real. While you can argue that someone on death row made a choice that got them to that point, whereas a fetus had no say, I find it still hard to swallow that you can claim one life must be protected and the other must be taken. Life should be life. At least in the Catholic Church this is more consistent. I myself am guilty of a degree of hypocrisy. My wife and I used IVF to have our twins. There were other embryos created and not inserted. They were eventually destroyed. So did I support killing a life? Maybe? I didn’t want to donate them for someone else to give birth to—it felt wrong to think my twins may have brothers or sisters in the world they would never know about. Yet does that mean I was more willing to kill my embryos than to have them adopted? Sure seems like it. So I made a morality deal with myself and moved the goal post—the embryos were not yet in a womb and were so early in development that they couldn’t be considered fully human life. They were still potential life.

Colleen, a mother of three, describes why she ended her fourth pregnancy:

I was young when I first engaged this debate. Raised Catholic, anti-choice, and so committed to my position that I broke my parents’ hearts by giving birth during my junior year of college. At that time, my sense of my own rights in the matter was almost irrelevant. I was enslaved by my body. One husband and two babies later I heard a remarkable Jesuit theologian (I wish I could remember his name) speak on the matter and he, a Catholic priest, framed it most directly. We prioritize one life over another all the time. Most obviously, we justify the taking of life in war with all kinds of arguments that often turn out to be untrue. We also do so as we decide who merits access to health care or income support or other life-sustaining things. So the question of abortion then boils down to: Who gets to decide? Who gets to decide that the life of a human in gestation is actually more valuable than the life of the woman who serves as host—or vice versa? Who gets to decide when the load a woman is being asked to carry is more than she can bear? The state? Looking back over history, he argued that he certainly had more faith in the person most involved to make the best decision than in any formalized structure—church or state—created by men. Every form of birth control available failed me at one point or another, so when yet a 4th pregnancy threatened to interrupt the education I had finally been able to resume, I said “Enough.” And as I cried and struggled to come to that position, the question that haunted me was “Doesn’t MY life count?” And I decided it did.

Florence articulates what it would take to make her anti-abortion:

What people seem to miss is that depriving a woman of bodily autonomy is slavery. A person who does not control his/her own body is—what? A slave. At its simplest, this is the issue. I will be anti-abortion when men and women are equal in all facets of life—wages, chores, child-rearing responsibilities, registering for the draft, to name a few obvious ones. When there is birth control that is effective, where women do not bear most of the responsibility. We need to raise boys who are respectful to girls, who do not think that they are entitled to coerce a girl into having sex that she doesn’t really want or is unprepared for. We need for sex education to be provided in schools so young couples know what they are getting into when they have sex. Especially the repercussions of pregnancy. We need to raise girls who are confident and secure, who don’t believe they need a male to “complete” them. Who have enough agency to say “no” and to know why. We have to make abortion unnecessary … We have so far to go. If abortion is ruled illegal, or otherwise curtailed, we will never know if the solutions to women’s second-class status will work. We will be set back to the 50s or worse. I don’t want to go back. Women have fought from the beginning of time to own their bodies and their lives. To deprive us of all of the amazing strides forward will affect all future generations.

Similarly, Ben agrees that in our current environment, abortion is often the only way women can retain equal citizenship and participation in society, but also agrees with pro-lifers who critique the status quo, writing that he doesn’t want a world where a daughter’s equality depends on her right “to perform an act of violence on their potential descendents.” Here’s how he resolves his conflictedness:

Conservatives arguing for a more family-centered society, in which abortion is unnecessary to protect the equal rights of women, are like liberals who argue for defunding the police and relying on addiction, counselling, and other services, in that they argue for removing what offends them without clear, credible plans to replace the functions it serves. I sincerely hope we can move towards a world in which armed police are less necessary. But before we can remove the guardrails of the police, we need to make the rest of the changes so that the world works without them. Once liberal cities that have shown interest in defunding the police can prove that they can fund alternatives, and that those alternatives work, then I will throw my support behind defunding the police. Similarly, once conservative politicians demonstrate a credible commitment to an alternative vision of society in which women are supported, families are not taken for granted, and careers and short-term productivity are not the golden calves they are today, I will be willing to support further restrictions on abortion. But until I trust that they are interested in solving the underlying problem (not merely eliminating an aspect they find offensive), I will defend abortion, as terrible as it is, within reasonable legal limits.

Two readers objected to foregrounding gender equality. One emailed anonymously, writing in part:

A fetus either is or isn’t a person. The reason I’m pro-life is that I’ve never heard a coherent defense of the proposition that a fetus is not a person, and I’m not sure one can be made. I’ve read plenty of progressive commentary, and when it bothers to make an argument for abortion “rights” at all, it talks about “the importance of women’s healthcare” or something as if that were the issue.

Christopher expanded on that last argument:

Of the many competing ethical concerns, the one that trumps them all is the status of the fetus. It is the only organism that gets destroyed by the procedure. Whether that is permissible trumps all other concerns. Otherwise important ethical claims related to a woman’s bodily autonomy, less relevant social disparities caused by the differences in men’s and women’s reproductive functions, and even less relevant differences in partisan commitments to welfare that would make abortion less appealing––all of that is secondary. The relentless strategy by the pro-choice to sidestep this question and pretend that a woman’s right to bodily autonomy is the primary ethical concern is, to me, somewhere between shibboleth and mass delusion. We should spend more time, even if it’s unproductive, arguing about the status of the fetus, because that is the question, and we should spend less time indulging this assault-on-women’s-rights narrative pushed by the Left.

Jean is critical of the pro-life movement:

Long-acting reversible contraceptives, robust, science-based sex education for teens, and a stronger social safety net would all go a remarkable way toward decreasing the number of abortions sought. Yet all the emphasis seems to be on simply making abortion illegal. For many, overturning Roe v. Wade is not about reducing abortions so much as signalling that abortion is wrong. If so-called pro-lifers were as concerned about abortion as they seem to be, they would spend more time, effort, and money supporting efforts to reduce the need for abortion—not simply trying to make it illegal without addressing why women seek it out. Imagine, in other words, a world where women hardly needed to rely on abortion for their well-being and ability to thrive. Imagine a world where almost any woman who got pregnant had planned to do so, or was capable of caring for that child. What is the anti-abortion movement doing to promote that world?

Destiny has one relevant answer. She writes:

I run a pro-life feminist group and we often say that our goal is not to make abortion illegal, but rather unnecessary and unthinkable by supporting women and humanizing the unborn child so well.

Robert suggests a different focus:

Any well-reasoned discussion of abortion policy must include contraception because abortion is about unwanted children brought on by poorly reasoned choices about sex. Such choices will always be more emotional than rational. Leaving out contraception makes it an unrealistic, airy discussion of moral philosophy. In particular, we need to consider government-funded programs of long-acting reversible contraception which enable reasoned choices outside the emotional circumstances of having sexual intercourse.

Last but not least, if anyone can unite the pro-life and pro-choice movements, it’s Errol, whose thoughts would rankle majorities in both factions as well as a majority of Americans. He writes:

The decision to keep the child should not be left up solely to the woman. Yes, it is her body that the child grows in, however once that child is birthed it is now two people’s responsibility. That’s entirely unfair to the father when he desired the abortion but the mother couldn’t find it in her heart to do it. If a woman wants to abort and the man wants to keep it, she should abort. However I feel the same way if a man wants to abort. The next 18+ years of your life are on the line. I view that as a trade-off that warrants the male’s input. Abortion is a conversation that needs to be had by two people, because those two will be directly tied to the result for a majority of their life. No one else should be involved with that decision, but it should not be solely hers, either.

Thanks to all who contributed answers to this week’s question, whether or not they were among the ones published. What subjects would you like to see fellow readers address in future installments? Email [email protected].

By submitting an email, you’ve agreed to let us use it—in part or in full—in this newsletter and on our website. Published feedback includes a writer’s full name, city, and state, unless otherwise requested in your initial note.

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• America’s Abortion Quandary

1. Americans’ views on whether, and in what circumstances, abortion should be legal

Table of contents.

• Abortion at various stages of pregnancy 
• Abortion and circumstances of pregnancy 
• Parental notification for minors seeking abortion
• Penalties for abortions performed illegally 
• Public views of what would change the number of abortions in the U.S.
• A majority of Americans say women should have more say in setting abortion policy in the U.S.
• How do certain arguments about abortion resonate with Americans?
• In their own words: How Americans feel about abortion 
• Personal connections to abortion 
• Religion’s impact on views about abortion
• Acknowledgments
• The American Trends Panel survey methodology

As the long-running debate over abortion reaches another  key moment at the Supreme Court  and in  state legislatures across the country , a majority of U.S. adults continue to say that abortion should be legal in all or most cases. About six-in-ten Americans (61%) say abortion should be legal in “all” or “most” cases, while 37% think abortion should be  illegal  in all or most cases. These views have changed little over the past several years: In 2019, for example, 61% of adults said abortion should be legal in all or most cases, while 38% said it should be illegal in all or most cases.    Most respondents in the new survey took one of the middle options when first asked about their views on abortion, saying either that abortion should be legal in  most  cases (36%) or illegal in  most  cases (27%). 

Respondents who said abortion should either be legal in  all  cases or illegal in  all  cases received a follow-up question asking whether there should be any exceptions to such laws. Overall, 25% of adults initially said abortion should be legal in all cases, but about a quarter of this group (6% of all U.S. adults) went on to say that there should be some exceptions when abortion should be against the law.

One-in-ten adults initially answered that abortion should be illegal in all cases, but about one-in-five of these respondents (2% of all U.S. adults) followed up by saying that there are some exceptions when abortion should be permitted. 

Altogether, seven-in-ten Americans say abortion should be legal in some cases and illegal in others, including 42% who say abortion should be generally legal, but with some exceptions, and 29% who say it should be generally illegal, except in certain cases. Much smaller shares take absolutist views when it comes to the legality of abortion in the U.S., maintaining that abortion should be legal in all cases with no exceptions (19%) or illegal in all circumstances (8%). 

There is a modest gender gap in views of whether abortion should be legal, with women slightly more likely than men to say abortion should be legal in all cases or in all cases but with some exceptions (63% vs. 58%). 

Younger adults are considerably more likely than older adults to say abortion should be legal: Three-quarters of adults under 30 (74%) say abortion should be generally legal, including 30% who say it should be legal in all cases without exception. 

But there is an even larger gap in views toward abortion by partisanship: 80% of Democrats and Democratic-leaning independents say abortion should be legal in all or most cases, compared with 38% of Republicans and GOP leaners.  Previous Center research  has shown this gap widening over the past 15 years. 

Still, while partisans diverge in views of whether abortion should mostly be legal or illegal, most Democrats and Republicans do not view abortion in absolutist terms. Just 13% of Republicans say abortion should be against the law in all cases without exception; 47% say it should be illegal with some exceptions. And while three-in-ten Democrats say abortion should be permitted in all circumstances, half say it should mostly be legal – but with some exceptions. 

There also are sizable divisions within both partisan coalitions by ideology. For instance, while a majority of moderate and liberal Republicans say abortion should mostly be legal (60%), just 27% of conservative Republicans say the same. Among Democrats, self-described liberals are twice as apt as moderates and conservatives to say abortion should be legal in all cases without exception (42% vs. 20%).

Regardless of partisan affiliation, adults who say they personally know someone who has had an abortion – such as a friend, relative or themselves – are more likely to say abortion should be legal than those who say they do not know anyone who had an abortion.

Views toward abortion also vary considerably by religious affiliation – specifically among large Christian subgroups and religiously unaffiliated Americans. 

For example, roughly three-quarters of White evangelical Protestants say abortion should be illegal in all or most cases. This is far higher than the share of White non-evangelical Protestants (38%) or Black Protestants (28%) who say the same. 

Despite  Catholic teaching on abortion , a slim majority of U.S. Catholics (56%) say abortion should be legal. This includes 13% who say it should be legal in all cases without exception, and 43% who say it should be legal, but with some exceptions. 

Compared with Christians, religiously unaffiliated adults are far more likely to say abortion should be legal overall – and significantly more inclined to say it should be legal in all cases without exception. Within this group, atheists stand out: 97% say abortion should be legal, including 53% who say it should be legal in all cases without exception. Agnostics and those who describe their religion as “nothing in particular” also overwhelmingly say that abortion should be legal, but they are more likely than atheists to say there are some circumstances when abortion should be against the law.

Although the survey was conducted among Americans of many religious backgrounds, including Jews, Muslims, Buddhists and Hindus, it did not obtain enough respondents from non-Christian groups to report separately on their responses.

As a  growing number of states  debate legislation to restrict abortion – often after a certain stage of pregnancy – Americans express complex views about when   abortion should generally be legal and when it should be against the law. Overall, a majority of adults (56%) say that how long a woman has been pregnant should matter in determining when abortion should be legal, while far fewer (14%) say that this should  not  be a factor. An additional one-quarter of the public says that abortion should either be legal (19%) or illegal (8%) in all circumstances without exception; these respondents did not receive this question.

Among men and women, Republicans and Democrats, and Christians and religious “nones” who do not take absolutist positions about abortion on either side of the debate, the prevailing view is that the stage of the pregnancy should be a factor in determining whether abortion should be legal.

Americans broadly are more likely to favor restrictions on abortion later in pregnancy than earlier in pregnancy. Many adults also say the legality of abortion depends on other factors at every stage of pregnancy. 

Overall, a plurality of adults (44%) say that abortion should be legal six weeks into a pregnancy, which is about when cardiac activity (sometimes called a fetal heartbeat) may be detected and before many women know they are pregnant; this includes 19% of adults who say abortion should be legal in all cases without exception, as well as 25% of adults who say it should be legal at that point in a pregnancy. An additional 7% say abortion generally should be legal in most cases, but that the stage of the pregnancy should not matter in determining legality. 1

One-in-five Americans (21%) say abortion should be  illegal  at six weeks. This includes 8% of adults who say abortion should be illegal in all cases without exception as well as 12% of adults who say that abortion should be illegal at this point. Additionally, 6% say abortion should be illegal in most cases and how long a woman has been pregnant should not matter in determining abortion’s legality. Nearly one-in-five respondents, when asked whether abortion should be legal six weeks into a pregnancy, say “it depends.” 

Americans are more divided about what should be permitted 14 weeks into a pregnancy – roughly at the end of the first trimester – although still, more people say abortion should be legal at this stage (34%) than illegal (27%), and about one-in-five say “it depends.”

Fewer adults say abortion should be legal 24 weeks into a pregnancy – about when a healthy fetus could survive outside the womb with medical care. At this stage, 22% of adults say abortion should be legal, while nearly twice as many (43%) say it should be  illegal . Again, about one-in-five adults (18%) say whether abortion should be legal at 24 weeks depends on other factors. 

Respondents who said that abortion should be illegal 24 weeks into a pregnancy or that “it depends” were asked a follow-up question about whether abortion at that point should be legal if the pregnant woman’s life is in danger or the baby would be born with severe disabilities. Most who received this question say abortion in these circumstances should be legal (54%) or that it depends on other factors (40%). Just 4% of this group maintained that abortion should be illegal in this case.

This pattern in views of abortion – whereby more favor greater restrictions on abortion as a pregnancy progresses – is evident across a variety of demographic and political groups. 

Democrats are far more likely than Republicans to say that abortion should be legal at each of the three stages of pregnancy asked about on the survey. For example, while 26% of Republicans say abortion should be legal at six weeks of pregnancy, more than twice as many Democrats say the same (61%). Similarly, while about a third of Democrats say abortion should be legal at 24 weeks of pregnancy, just 8% of Republicans say the same. 

However, neither Republicans nor Democrats uniformly express absolutist views about abortion throughout a pregnancy. Republicans are divided on abortion at six weeks: Roughly a quarter say it should be legal (26%), while a similar share say it depends (24%). A third say it should be illegal. 

Democrats are divided about whether abortion should be legal or illegal at 24 weeks, with 34% saying it should be legal, 29% saying it should be illegal, and 21% saying it depends. 

There also is considerable division among each partisan group by ideology. At six weeks of pregnancy, just one-in-five conservative Republicans (19%) say that abortion should be legal; moderate and liberal Republicans are twice as likely as their conservative counterparts to say this (39%). 

At the same time, about half of liberal Democrats (48%) say abortion at 24 weeks should be legal, while 17% say it should be illegal. Among conservative and moderate Democrats, the pattern is reversed: A plurality (39%) say abortion at this stage should be illegal, while 24% say it should be legal. 

Christian adults are far less likely than religiously unaffiliated Americans to say abortion should be legal at each stage of pregnancy.  

Among Protestants, White evangelicals stand out for their opposition to abortion. At six weeks of pregnancy, for example, 44% say abortion should be illegal, compared with 17% of White non-evangelical Protestants and 15% of Black Protestants. This pattern also is evident at 14 and 24 weeks of pregnancy, when half or more of White evangelicals say abortion should be illegal.

At six weeks, a plurality of Catholics (41%) say abortion should be legal, while smaller shares say it depends or it should be illegal. But by 24 weeks, about half of Catholics (49%) say abortion should be illegal. 

Among adults who are religiously unaffiliated, atheists stand out for their views. They are the only group in which a sizable majority says abortion should be  legal  at each point in a pregnancy. Even at 24 weeks, 62% of self-described atheists say abortion should be legal, compared with smaller shares of agnostics (43%) and those who say their religion is “nothing in particular” (31%). 

As is the case with adults overall, most religiously affiliated and religiously unaffiliated adults who originally say that abortion should be illegal or “it depends” at 24 weeks go on to say either it should be legal or it depends if the pregnant woman’s life is in danger or the baby would be born with severe disabilities. Few (4% and 5%, respectively) say abortion should be illegal at 24 weeks in these situations.

The stage of the pregnancy is not the only factor that shapes people’s views of when abortion should be legal. Sizable majorities of U.S. adults say that abortion should be legal if the pregnancy threatens the life or health of the pregnant woman (73%) or if pregnancy is the result of rape (69%). 

There is less consensus when it comes to circumstances in which a baby may be born with severe disabilities or health problems: 53% of Americans overall say abortion should be legal in such circumstances, including 19% who say abortion should be legal in all cases and 35% who say there are some situations where abortions should be illegal, but that it should be legal in this specific type of case. A quarter of adults say “it depends” in this situation, and about one-in-five say it should be illegal (10% who say illegal in this specific circumstance and 8% who say illegal in all circumstances). 

There are sizable divides between and among partisans when it comes to views of abortion in these situations. Overall, Republicans are less likely than Democrats to say abortion should be legal in each of the three circumstances outlined in the survey. However, both partisan groups are less likely to say abortion should be legal when the baby may be born with severe disabilities or health problems than when the woman’s life is in danger or the pregnancy is the result of rape. 

Just as there are wide gaps among Republicans by ideology on whether how long a woman has been pregnant should be a factor in determining abortion’s legality, there are large gaps when it comes to circumstances in which abortions should be legal. For example, while a clear majority of moderate and liberal Republicans (71%) say abortion should be permitted when the pregnancy is the result of rape, conservative Republicans are more divided. About half (48%) say it should be legal in this situation, while 29% say it should be illegal and 21% say it depends.

The ideological gaps among Democrats are slightly less pronounced. Most Democrats say abortion should be legal in each of the three circumstances – just to varying degrees. While 77% of liberal Democrats say abortion should be legal if a baby will be born with severe disabilities or health problems, for example, a smaller majority of conservative and moderate Democrats (60%) say the same. 

White evangelical Protestants again stand out for their views on abortion in various circumstances; they are far less likely than White non-evangelical or Black Protestants to say abortion should be legal across each of the three circumstances described in the survey. 

While about half of White evangelical Protestants (51%) say abortion should be legal if a pregnancy threatens the woman’s life or health, clear majorities of other Protestant groups and Catholics say this should be the case. The same pattern holds in views of whether abortion should be legal if the pregnancy is the result of rape. Most White non-evangelical Protestants (75%), Black Protestants (71%) and Catholics (66%) say abortion should be permitted in this instance, while White evangelicals are more divided: 40% say it should be legal, while 34% say it should be  illegal  and about a quarter say it depends. 

Mirroring the pattern seen among adults overall, opinions are more varied about a situation where a baby might be born with severe disabilities or health issues. For instance, half of Catholics say abortion should be legal in such cases, while 21% say it should be illegal and 27% say it depends on the situation. 

Most religiously unaffiliated adults – including overwhelming majorities of self-described atheists – say abortion should be legal in each of the three circumstances. 

Seven-in-ten U.S. adults say that doctors or other health care providers should be required to notify a parent or legal guardian if the pregnant woman seeking an abortion is under 18, while 28% say they should not be required to do so.  

Women are slightly less likely than men to say this should be a requirement (67% vs. 74%). And younger adults are far less likely than those who are older to say a parent or guardian should be notified before a doctor performs an abortion on a pregnant woman who is under 18. In fact, about half of adults ages 18 to 24 (53%) say a doctor should  not  be required to notify a parent. By contrast, 64% of adults ages 25 to 29 say doctors  should  be required to notify parents of minors seeking an abortion, as do 68% of adults ages 30 to 49 and 78% of those 50 and older. 

A large majority of Republicans (85%) say that a doctor should be required to notify the parents of a minor before an abortion, though conservative Republicans are somewhat more likely than moderate and liberal Republicans to take this position (90% vs. 77%). 

The ideological divide is even more pronounced among Democrats. Overall, a slim majority of Democrats (57%) say a parent should be notified in this circumstance, but while 72% of conservative and moderate Democrats hold this view, just 39% of liberal Democrats agree. 

By and large, most Protestant (81%) and Catholic (78%) adults say doctors should be required to notify parents of minors before an abortion. But religiously unaffiliated Americans are more divided. Majorities of both atheists (71%) and agnostics (58%) say doctors should  not  be required to notify parents of minors seeking an abortion, while six-in-ten of those who describe their religion as “nothing in particular” say such notification should be required. 

Americans are divided over who should be penalized – and what that penalty should be – in a situation where an abortion occurs illegally. 

Overall, a 60% majority of adults say that if a doctor or provider performs an abortion in a situation where it is illegal, they should face a penalty. But there is less agreement when it comes to others who may have been involved in the procedure. 

While about half of the public (47%) says a woman who has an illegal abortion should face a penalty, a nearly identical share (50%) says she should not. And adults are more likely to say people who help find and schedule or pay for an abortion in a situation where it is illegal should  not  face a penalty than they are to say they should.

Views about penalties are closely correlated with overall attitudes about whether abortion should be legal or illegal. For example, just 20% of adults who say abortion should be legal in all cases without exception think doctors or providers should face a penalty if an abortion were carried out in a situation where it was illegal. This compares with 91% of those who think abortion should be illegal in all cases without exceptions. Still, regardless of how they feel about whether abortion should be legal or not, Americans are more likely to say a doctor or provider should face a penalty compared with others involved in the procedure. 

Among those who say medical providers and/or women should face penalties for illegal abortions, there is no consensus about whether they should get jail time or a less severe punishment. Among U.S. adults overall, 14% say women should serve jail time if they have an abortion in a situation where it is illegal, while 16% say they should receive a fine or community service and 17% say they are not sure what the penalty should be. 

A somewhat larger share of Americans (25%) say doctors or other medical providers should face jail time for providing illegal abortion services, while 18% say they should face fines or community service and 17% are not sure. About three-in-ten U.S. adults (31%) say doctors should lose their medical license if they perform an abortion in a situation where it is illegal.

Men are more likely than women to favor penalties for the woman or doctor in situations where abortion is illegal. About half of men (52%) say women should face a penalty, while just 43% of women say the same. Similarly, about two-thirds of men (64%) say a doctor should face a penalty, while 56% of women agree.

Republicans are considerably more likely than Democrats to say both women and doctors should face penalties – including jail time. For example, 21% of Republicans say the woman who had the abortion should face jail time, and 40% say this about the doctor who performed the abortion. Among Democrats, far smaller shares say the woman (8%) or doctor (13%) should serve jail time.  

White evangelical Protestants are more likely than other Protestant groups to favor penalties for abortions in situations where they are illegal. Fully 24% say the woman who had the abortion should serve time in jail, compared with just 12% of White non-evangelical Protestants or Black Protestants. And while about half of White evangelicals (48%) say doctors who perform illegal abortions should serve jail time, just 26% of White non-evangelical Protestants and 18% of Black Protestants share this view.

• Only respondents who said that abortion should be legal in some cases but not others and that how long a woman has been pregnant should matter in determining whether abortion should be legal received questions about abortion’s legality at specific points in the pregnancy.  ↩

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June 23, 2022

Abortion and bioethics: Principles to guide US abortion debates

by Nancy S. Jecker, The Conversation

The U.S. Supreme Court will soon decide the fate of Roe v. Wade , the landmark 1973 decision that established the nationwide right to choose an abortion. If the court's decision hews close to the leaked draft opinion first published by Politico in May 2022, the court's new conservative majority will overturn Roe.

Rancorous debate about the ruling is often dominated by politics . Ethics garners less attention, although it lies at the heart of the legal controversy. As a philosopher and bioethicist , I study moral problems in medicine and health policy , including abortion.

Bioethical approaches to abortion often appeal to four principles : respect patients' autonomy; nonmaleficence, or "do no harm"; beneficence, or provide beneficial care; and justice. These principles were first developed during the 1970s to guide research involving human subjects . Today, they are essential guides for many doctors and ethicists in challenging medical cases .

Patient autonomy

The ethical principle of autonomy states that patients are entitled to make decisions about their own medical care when able. The American Medical Association's Code of Medical Ethics recognizes a patient's right to " receive information and ask questions about recommended treatments " in order to "make well-considered decisions about care." Respect for autonomy is enshrined in laws governing informed consent , which protect patients' right to know the medical options available and make an informed voluntary decision.

Some bioethicists regard respect for autonomy as lending firm support to the right to choose abortion, arguing that if a pregnant person wishes to end their pregnancy, the state should not interfere. According to one interpretation of this view, the principle of autonomy means that a person owns their body and should be free to decide what happens in and to it .

Abortion opponents do not necessarily challenge the soundness of respecting people's autonomy, but may disagree about how to interpret this principle. Some regard a pregnant person as " two patients "—the pregnant person and the fetus .

One way to reconcile these views is to say that as an immature human being becomes " increasingly self-conscious, rational and autonomous it is harmed to an increasing degree ," as philosopher Jeff McMahan writes. In this view, a late-stage fetus has more interest in its future than a fertilized egg, and therefore the later in pregnancy an abortion takes place, the more it may hinder the fetus's developing interests. In the U.S., where 92.7% of abortions occur at or before 13 weeks' gestation , a pregnant person's rights may often outweigh those attributed to the fetus. Later in pregnancy, however, rights attributed to the fetus may assume greater weight. Balancing these competing claims remains contentious.

Nonmaleficence and beneficence

The ethical principle of "do no harm" forbids intentionally harming or injuring a patient. It demands medically competent care that minimizes risks. Nonmaleficence is often paired with a principle of beneficence, a duty to benefit patients. Together, these principles emphasize doing more good than harm .

Minimizing the risk of harm figures prominently in the World Health Organization's opposition to bans on abortion because pregnant people facing barriers to abortion often resort to unsafe methods, which represent a leading cause of avoidable maternal deaths and morbidities worldwide .

Although 97% of unsafe abortions occur in developing countries , developed countries that have narrowed abortion access have produced unintended harms. In Poland , for example, doctors fearing prosecution have hesitated to administer cancer treatments during pregnancy or remove a fetus after a pregnant person's water breaks early in the pregnancy, before the fetus is viable. In the U.S., restrictive abortion laws in some states, like Texas, have complicated care for miscarriages and high-risk pregnancies , putting pregnant people's lives at risk.

However, Americans who favor overturning Roe are primarily concerned about fetal harm. Regardless of whether or not the fetus is considered a person, the fetus might have an interest in avoiding pain. Late in pregnancy, some ethicists think that humane care for pregnant people should include minimizing fetal pain irrespective of whether a pregnancy continues. Neuroscience teaches that the human capacity to experience feeling or sensation requires consciousness, , which develops between 24 and 28 weeks gestation.

Justice, a final principle of bioethics, requires treating similar cases similarly. If the pregnant person and fetus are moral equals, many argue that it would be unjust to kill the fetus except in self-defense, if the fetus threatens the pregnant person's life. Others hold that even in self-defense, terminating the fetus's life is wrong because a fetus is not morally responsible for any threat it poses .

Yet defenders of abortion point out that even if abortion results in the death of an innocent person, that is not its goal. If the ethics of an action is judged by its goals, then abortion might be justified in cases where it realizes an ethical aim, such as saving a woman's life or protecting a family's ability to care for their current children. Defenders of abortion also argue that even if the fetus has a right to life, a person does not have a right to everything they need to stay alive . For example, having a right to life does not entail a right to threaten another's health or life, or ride roughshod over another's life plans and goals.

Justice also deals with the fair distribution of benefits and burdens. Among wealthy countries, the U.S. has the highest rate of deaths linked to pregnancy and childbirth. Without legal protection for abortion, pregnancy and childbirth for Americans could become even more risky. Studies show that women are more likely to die while pregnant or shortly thereafter in states with the most restrictive abortion policies .

Minority groups may have the most to lose if the right to choose abortion is not upheld because they utilize a disproportionate share of abortion services . In Mississippi, for example, people of color represent 44% of the population, but 81% of those receiving abortions . Other states follow a similar pattern, leading some health activists to conclude that "abortion restrictions are racist."

Other marginalized groups, including low-income families, could also be hard hit by abortion restrictions because abortions are expected to get pricier .

Politics aside, abortion raises profound ethical questions that remain unsettled, which courts are left to settle using the blunt instrument of law. In this sense, abortion " begins as a moral argument and ends as a legal argument ," in the words of law and ethics scholar Katherine Watson .

Putting to rest legal controversies surrounding abortion would require reaching moral consensus. Short of that, articulating our own moral views and understanding others' can bring all sides closer to a principled compromise .

Provided by The Conversation

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• Volume 27, Issue suppl 2
• Reproductive autonomy and the ethics of abortion
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• Barbara Hewson
• Littman Chambers, London

Abortion is one of the most controversial issues in today's world. People tend to turn to the law when trying to decide what is the best possible solution to an unwanted pregnancy. Here the author's views on abortion are discussed from a lawyer's and a woman's point of view. By taking into consideration the rights of the fetus an “antagonistic relationship” between the woman and her unborn child may occur. Therefore, women should have more autonomy in the issue. The article concludes with examples of cases in the United States and Ireland where the rights of the fetus are considered more important than those of the mother because of existing laws. This article suggests that a more inclusive ethics of abortion is required rather than a new ethics of abortion when “translating fetal life into law”.

• 1967 Abortion Act

https://doi.org/10.1136/jme.27.suppl_2.ii10

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Practising lawyers generally have little time to reflect on matters of ethics. The law is a blunt instrument. Lawyers are often instructed to act for clients wishing to do things that would strike many people as immoral, but which the law entitles them to do. Evicting homeless people from one's property is an example. Lawyers are not expected or invited to pass moral judgments on their client. If they did, the client would probably go elsewhere! The Bar has a rule of conduct called the “cab-rank” rule. This obliges barristers to accept instructions regardless of the identity of the client, or the nature of the cause, or the barrister's own opinions about the client's conduct. Judges, likewise, must decide disputes according to law; their function is not to pass moral judgments on litigants. The reflections that follow, therefore, do not pretend to constitute some systematic overview but rather, some personal thoughts and ideas which may prompt further discussion.

So what can a barrister say on the ethics of abortion? Is a new ethics developing? Should there be one? These are interesting and important questions. As a lawyer with a commitment to autonomy, I see abortion as an issue that overwhelmingly concerns the autonomy and dignity of the pregnant woman herself. “Autonomy” derives from the Greek and means, literally, “self rule”. If a woman who is pregnant wishes to stop being pregnant, why should we prevent her? If we regard her pregnancy as a morally neutral state, there ought to be no satisfactory reason to prevent her. The way that humans reproduce, in common with other mammals, is simply a product of evolution. Biologically, the developing fetus is somewhat like an invading organism; if it were not for a complex system of compensating mechanisms, the woman's body would reject it in the same way as the body rejects a transplanted organ.

Attitudes to pregnancy are, however, inextricably bound up with how society views sex, women, and the fertile woman in particular. Pregnancy and birth are not minor inconveniences, such as having a cold. They constitute a major life event, which even when welcome causes immense discomfort and disruption to many women. Only recently Mrs Blair confessed that she had forgotten what an ordeal the last few hours of labour are. I have a dear friend who spent much of her two (planned) pregnancies being ill and unable to work. There exists a raft of laws to protect pregnant employees from unfair treatment because they are pregnant. Nevertheless, lawyers in the employment field still encounter cases where employers try to rid themselves of their pregnant employees. When a high-profile court case involving maternity rights is decided, leaders of industry often complain that this will have a chilling effect on employers' readiness to employ women of child-bearing age. I mention these factors simply to contextualise some of the difficulties that child-bearing women face.

If one is adamantly opposed to abortion, one is committed to some set of values which requires that women who become pregnant (whether intentionally or unintentionally) must endure the process of pregnancy and birth, no matter how distressing, painful and risky it is for them. The justification given for this is usually based on an abstract notion of the value of “fetal life”, rather than on the ground that suffering is morally improving for the women concerned. Extreme opponents of abortion argue that abortion is equivalent to murder and that, no matter how much women may suffer, they cannot be allowed to “kill their children”. But opposition to abortion entails a demand that women suffer, regardless of the circumstances in which they came to be pregnant, and despite the opportunities for ending pregnancy that exist. For those who believe that fetuses are full human beings, the justification is presumably that the woman's suffering is a lesser evil than terminating fetal life. This raises the question whether they tolerate the taking of “innocent” human life in other circumstances, for example. NATO's attack on Kosovo, or careless driving. Since an unwanted fetus is analogous to an invading organism, even if it is viewed as a human being, an argument can be made that the woman is entitled to refuse to act as a life-support system for it, and to abort in self defence. What about those who do not believe that fetuses are full human beings, but believe that abortion following consensual sexual activity is “wrong”? As the philosopher Janet Radcliffe Richards 1 has pointed out, the only time when we insist that a particular consequence must follow a particular activity, and do not allow people to escape the consequence, is when the consequence is intended as a punishment. 2 Apart from this punitive aspect of anti-abortion belief, it is also objectionable in ethical terms because it treats the pregnant woman as a means to an end: that of producing a baby.

Of course, many women will not accept the suffering which continuing with pregnancy would cause them (or their families), and take steps accordingly. In countries where safe abortion is illegal or unavailable, this results in self-imposed or “back-street” abortions and all the ills that flow from that: injury, infection, infertility, and even death. It is striking that complications from unsafe abortion are estimated to result in 13 per cent of maternal deaths worldwide. 3 It is hard to see how such wastage of female life could be condoned in ethical terms. As Ann Furedi has said: “The issue is not so much whether or when the embryo/fetus is deserving of respect per se, but how much respect and value we accord to a life (that does not even know it is alive) relative to the respect and value we have for the life of the woman who carries it.” 4

If we start from the premise that the promotion of freedom and the prevention of suffering are fundamental goals which society ought to support, then the prospect of women forced into suffering even—death—ought to worry us. Kant says that “a man is not a thing, that is to say, something which can be used merely as a means, but must in all his actions be always considered as an end in himself”. 5 Denying women abortion is, on this analysis, unethical because it subordinates women to a reproductive end.

The present tendency to characterise questions about abortion ethics in terms of concerns about fetuses, or even fetal “rights”, tends to sideline women and the realities of women's lives. Such sidelining of women is not entirely accidental; it is trite that many “fetal rights” proponents are opposed to the present increase in women's freedoms, and want to roll them back. Others who speak of fetuses as having “rights” assume that fetuses either have, or should have, rights, without necessarily explaining why this should be so, or why it should result in another person's loss of autonomy.

To put women back centre-stage, we should ask: why do women want abortions? Research has shown that the most commonly reported reason worldwide is that women wish to postpone, or stop, childbearing. 6 Abortion is a form of family planning, though it may not be “politically correct” to say so. What other reasons do women give for wanting abortions, worldwide? They include:

disruption of education or employment;

lack of support from father;

desire to provide for existing children;

poverty, unemployment or inability to afford sadditional children;

relationship problems with husband or partner, and

a woman's perception that she is too young to have a child.

To compel such women to bear unwanted children is in my view a form of ethical despotism: in Mill's words: “compelling each to live as seems good to the rest”. 7 If people are to be free, that freedom must include freedom to make these difficult and extremely personal choices.

Is the law informed by a consistent set of ethical principles? In England, Scotland, and Wales, abortion is permitted by the 1967 Abortion Act (amended by the Human Fertilisation and Embryology Act 1990), when two medical practitioners decide, in good faith, that one of the following grounds applies:

That the pregnancy has not exceeded its 24th week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family.

That the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman.

That the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated.

That there is a substantial risk that if the child were born it would suffer from such mental or physical abnormalities as to be seriously handicapped.

Grounds 1 and 3 call for balancing exercises. Ground 2, which is based on necessity, does not. Ground 4 calls for an assessment of the likely severity of fetal handicap.

Doctors may take into account the pregnant woman's actual or reasonably foreseeable environment, in assessing the risk of injury to her health. The World Health Organization (WHO) defines health as a “state of complete physical, mental and social wellbeing that does not consist only in the absence of infirmity”. According to evidence-based guideline no 7, issued in March 2000 by the Royal College of Obstetricians and Gynaecologists (RCOG), The Care of Women Requesting Induced Abortion , 8 most doctors apply the WHO definition of “health” in interpreting the Abortion Act. 9 The RCOG's guideline development group views induced abortion as a health care need. 10 It also states that, among information on other topics which should be available to women, “abortion is safer than continuing a pregnancy to term and complications are rare”. 11

Janet Radcliffe Richards criticises the existing law:

“ …as things stand at the moment there is no real concern to estimate the value of the unborn child, or for the degree of suffering which would justify an abortion. All the law does, in effect, is make sure that a woman may not decide for herself whether to have an abortion, and send her to someone else in the position of a suppliant for favours, or even a culprit. It does nothing else ... as the law now stands there is no reason whatever for stopping where we are, and not going forward to a state where all women who want abortions can have them.” 12

If having an abortion is safer than carrying a pregnancy to term, then all pregnant women who wanted a termination below 24 weeks should qualify under ground 1 above. So perhaps the law is not so bad, after all.

In Northern Ireland, however, the 1967 Abortion Act does not apply. Doctors there do perform abortions on the ground of fetal abnormality. They can also perform abortions in cases where the woman's mental or physical health or wellbeing, or her life, are at real and serious risk. In this context, “real and serious” mean, simply, “genuine” and “not minor or trivial”. Thus, a woman does not have to show a life-threatening risk to her health, or even a “very serious” risk, to qualify for a legal abortion. Ironically, in the absence of any prescribed statutory formalities for abortion, Northern Ireland has on the face of it a more liberal abortion regime than the rest of the United Kingdom. In practice, though, the reluctance of the medical profession to perform abortions has a chilling effect. Most women seeking terminations have to travel to England or Scotland, at their own expense.

There are irreconcilable conflicts between what might be called the fundamentalist approach to the issue of abortion, which sees life as starting at conception, and what might be called the sceptical view, by which life begins when we attribute enough value to it to warrant its protection. Under English law, a fetus is not a “person”. Furthermore, a woman may decline medical intervention that would preserve the life of her fetus, and is free to let nature take its course, even where this may cause the death of her fetus. The justification for this is, firstly, that the common law respects the pregnant woman's autonomy; and secondly, that the common law does not coerce people into being “Good Samaritans” and saving others (assuming, for argument's sake, that the fetus is an “other”). The common law tradition is essentially liberal. The vice-chancellor, Sir Robert Megarry, put it like this in 1979: “[England] is a country where everything is permitted except what is expressly forbidden”. 13 If everyone could be compelled by law to do what others considered “right”, we should have no freedom, only moral dictatorship.

The case of St George's Healthcare NHS Trust v S , 14 decided in 1998, was a landmark case involving reproductive autonomy in another context: that of the pregnant woman's freedom to decline invasive treatment. The Court of Appeal upheld the common law rule that competent adults can refuse medical advice and intervention, despite being pregnant. Ms S was compulsorily detained under the Mental Health Act 1983 because she was refusing hospitalisation for pre-eclampsia. She was then forced into an unwanted caesarean, purporting to be authorised by a court order, which was made without any notice to her. She later recovered very substantial damages for trespass. The Court of Appeal stressed the importance of protecting individual autonomy, regardless of sex:

“while pregnancy increases the personal responsibilities of a woman it does not diminish her entitlement to decide whether or not to undergo medical treatment…. Her right is not reduced or diminished merely because her decision to exercise it may appear morally repugnant . . .the autonomy of each individual requires continuing protection even, perhaps particularly, when the motive for interfering with it is readily understandable, and indeed to many would appear commendable ... if it has not already done so, medical science will no doubt advance to the stage where a very minor procedure undergone by an adult would save the life of his or her child, or perhaps the child of a complete stranger . . .if however the adult were compelled to agree, or rendered helpless to resist, the principle of autonomy would be extinguished.”[italics added]

St George's wanted to appeal to the House of Lords to ventilate the arguments (among others) that a fetus was a “person” and that a pregnant woman could be deprived of her autonomy at the stage of fetal viability. These were interesting arguments for a National Health (NHS) trust, which presumably carries out abortions for fetal abnormality and other reasons, to pursue. If such arguments had been upheld on appeal, they would have had momentous implications for abortion law. St George's was refused leave to appeal by the Court of Appeal, and initially began proceedings for leave to appeal in the House of Lords. These were abandoned before the House of Lords had made a final decision on whether to grant leave.

Another interesting feature of the case is that Ms S's detention and forced treatment were prompted by concerns that she was refusing treatment for a disorder of pregnancy, pre-eclampsia. This could have killed her and her fetus, had it deteriorated into full-blown eclampsia. The irony is that Ms S could have sought a late abortion, on the ground that the continuation of her pregnancy posed the risk of grave and irreparable injury to her health and a serious risk to her life (grounds 2 and 3, referred to above). She was not seeking a late termination, but if she had, her situation would have been covered by the Abortion Act. That she wanted to let nature take its course was certainly eccentric, but ethically less troubling (if you dislike the idea of late termination) than if she had sought a late abortion.

Many people attribute a higher value to fetal life when fetuses reach viability. Thus, some people are troubled at the idea of, or opposed to, late terminations, whilst regarding early terminations as unproblematic or at any rate less problematic. But as Justice Ginsberg of the United State Supreme Court has recently pointed out: “the most common method of performing previability second trimester abortions is no less distressing or susceptible to gruesome description”. 15 In practice, late terminations are rare. The majority are done for fetal abnormality in what were otherwise wanted pregnancies; a minority are done to save the woman's life, or to prevent grave permanent damage to her health.

The question is, again, how to assess when life begins, in an ethical sense. Legally, as I have said, the fetus is not a “person”, and does not become a rights-bearing entity until it is born. But attempts to pin down “viability” as a criterion for abortion run into the problem that viability depends partly on where the fetus happens to be; if it is in an area with excellent facilities for the care of very premature babies, then it may be considered “viable” at an earlier gestational age, than if it were somewhere else. On any view, this is arbitrary.

In the United States' constitutional jurisprudence, access to abortion is a constitutionally protected right. Subsequent to fetal viability, the state may regulate and even prohibit abortion as a means of promoting its interest in the potentiality of human life. However, a woman remains constitutionally entitled to an abortion post-viability, where this is necessary to preserve her life or her health. 16 Her interests in preserving her own life and health will “trump” the state's interest. It is also worth noting that fetuses are not recognised as “persons” under the US constitution; if they were, it would be difficult, if not impossible, to derive any right to abortion under the constitution. Even if a pregnant woman's life were at stake, it would be more difficult to argue that this should justify killing fetal “persons”: our response to people who are dangerously ill is not to kill other people. (Otherwise, every time someone needed a life-saving transplant, we could justify killing someone else to provide the needed organ). Some form of “self-defence” argument would have to be invoked.

Some people argue that it is arbitrary not to bestow “personhood” on a fetus until it is born. They ask rhetorically: What is it about the passage through the vagina that makes such a difference? Of course, if you can only envisage a vagina instead of a woman giving birth, you may have difficulty acknowledging the critical role that a woman plays in giving birth, and why (in turn) society views birth as the critical moment. This is, as much as anything, a mark of respect for women's role in giving birth.

Some obstetricians regard pregnant women as “two patients” in the maternity care context. To a blunt lawyer, this is incongruous in the extreme. One wonders, is the fetal “patient” a “person”? Presumably so, because the idea of a patient who is not a person is bizarre. But in legal terms, as I have said earlier, the pregnant woman is only one person. Whom do doctors advise? Who takes the treatment decisions? The woman. Generally, midwives and obstetricians talk about “babies” rather than fetuses, presumably because that is how the women whom they attend regard their fetuses. But is the fetus really a second patient? If it were such, one might expect doctors would have to open up a separate file for the fetus, which is not customary (as far as I know) in maternity hospitals. Perhaps having “two” patients makes an obstetrician a “super-doctor”, which is why the idea has gained ground!

There are conceptual difficulties to do with attributing personhood to an entity which is invisible, inaccessible, physically contained in and attached to the woman, which entirely lacks capacity, and which cannot interact with others at all, prior to birth. In everyday life, such an idea, if given legal effect, would lead to some strange outcomes. Pregnant women might have to purchase two tickets every time they used public transport to avoid being prosecuted for fetal “fare-dodging”. More seriously, if fetuses were “persons”, this would open the way to lawsuits for alleged wrongdoing by pregnant women whose conduct allegedly compromised fetal wellbeing in some way. In the words of a 1993 Canadian Royal Commission on New Reproductive Technologies (cited in the St George's judgment): “each choice made by the woman in relation to her body will affect the fetus and potentially attract tort liability”. 14

One can make a case for saying that a pregnant woman is entitled to be regarded as two persons, not as a means of subordinating her interests and autonomy, but rather to enhance it. (I have problems with this argument, however, and it doesn't work in terms of abortion). Quite simply, one could say that, given the increased needs which pregnancy brings, the pregnant woman is entitled to call for special care and treatment for herself and for her fetus. In theory, the pregnant woman could act as the fetus's proxy, with sole authority to advocate on its behalf, and to determine what happens to it. The problem with translating the idea of “two patients” into legal terms, however, is that “fetal rights” proponents have deployed this concept not as a means of improving care for pregnant women, but as a pretext for coercion: state intervention which forces pregnant woman into an antagonistic relationship with their fetuses. In other words, state control of pregnant women.

An illustration of the coercion to which this can give rise, is provided by certain US states. In South Carolina and California, drug-addicted pregnant women attending antenatal clinics have been arrested and charged with criminal offences, after they tested positive for drugs whilst pregnant. The MSUC hospital in Charleston, South Carolina pursued a particularly punitive policy against addicted African-American women in the 1980s and early 1990s. Pregnant women attending for antenatal care were tested for drugs without their knowledge and, if the tests were positive, the women were arrested and taken into custody by the police. An appeal to the US Supreme Court, in a case called Ferguson v City of Charleston , recently succeeded: the Supreme Court decided in March 2001 that covert drug-testing was unconstitutional. 18

The South Carolina Supreme Court gave a ruling in 1997, in a case concerning another drug-addicted pregnant woman, Whitner v State . 19 She was convicted of criminal child neglect for (in the words of prosecutors) failing to provide proper medical care for her unborn child, and jailed for eight years. He was born healthy, but a test showed prenatal exposure to cocaine. The ruling is that a viable fetus is a “person”, and that acts which endanger fetal health—including drinking and smoking—can be prosecuted under child abuse laws. After this ruling, the Attorney-General's office in South Carolina announced that anyone who had, or who took part in, a post-viability abortion could be prosecuted for murder and receive the death penalty. 20 Here are some examples of how the decision has been applied:

“ Whitner has not been limited to women who use illegal drugs. Following the decision a pregnant woman in South Carolina was arrested because she was pregnant and used alcohol. When a thirteen-year-old girl experienced a stillbirth her parents were arrested: one charge was for unlawful conduct to a child because the girl's parents had allegedly ‘failed to get proper care for the fetus’. A woman who suffered a miscarriage was arrested and charged with homicide by child abuse. The prosecutor admitted there was no evidence of drug use but nevertheless insisted that the miscarriage was a ‘crime’ for which the woman had to take responsibility.” (L M Paltrow, personal communication, 4 May 2000)

Another example of state control is provided by the Republic of Ireland, where the constitution gives the “unborn” a right to life equal to that of the “mother”. Even rape is not recognised as a legal basis for abortion, though this could be the subject of a challenge before the European Court of Human Rights in Strasbourg. In two dramatic cases involving child victims of sexual assault, the X and C cases, 21 , 22 Irish courts have become involved in the question whether such victims are free to travel to England for lawful abortions. Where children become pregnant, and family courts have to consider their welfare, the Irish courts will only permit travel abroad for abortions when the children can show their lives are in danger. This is surprising, given that the Irish people voted to give women freedom to travel in 1992. So there are some stark examples from both sides of the Atlantic of problems that arise when ethical absolutes about fetal life are translated into law. Perhaps it is not so much a new ethics of abortion that is required, as a more inclusive one.

• ↵ Radcliffe Richards J. The sceptical feminist. London : Penguin, 1994.
• ↵ See reference 1: 279.
• ↵ A Joint World Health Organisation/UNFPA/UNICEF/World Bank statement. Reduction of maternal mortality. Geneva: World Health Organization, 1999: 14.
• ↵ Furedi A. Women versus babies: comment & analysis. The Guardian 2000 Feb 22: .
• ↵ Kant I. Fundamental principles of the metaphysic of morals. In Cahn SM, Markie P, eds. Ethics: history, theory and contemporary issues . New York: Oxford University Press, 1998: 297.
• ↵ Smith C. Contraception and the need for abortion. A quest for abortion: new research about obstacles, delays and negative attitudes . London: Voice for Choice, 1999: 3-4.
• ↵ Mill JS. On liberty. Three Essays London: Oxford University Press, 1975: 18.
• ↵ Royal College of Obstetricians and Gynaecologists. The care of women requesting induced abortion. London: Royal College of Obstetricians and Gynaecologists, 2000.
• ↵ See reference 8: 16: para 2.1
• ↵ See reference 8: 36.
• ↵ See reference 8: 26.
• ↵ See reference 1: 289.
• ↵ Malone v Metropolitan Police Commr, (1979)ch 344,537.
• ↵ St George's Healthcare NHS Trust v S [1999] Fam; 26 :46-7.
• ↵ Stenberg v Carhart US Supreme Court, June 28, 2000.
• ↵ Planned Parenthood v Casey (1992) 505 US 833.
• See reference 14: 49-50.
• ↵ Ferguson v City of Charleston , US Supreme Court 21 March 2001.
• ↵ Whitner v South Carolina , 492 SE2d 777 (SC 1997).
• ↵ Paltrow L. Pregnant drug users, fetal persons and the threat to Roe v Wade. Albany Law Review 1999 ; 62 : 999 –1014. OpenUrl
• ↵ Attorney-General v X [1992] 1 IR 1.
• ↵ A & B v Eastern Health Board [1998] 1 IR 464.

Barbara Hewson is a Barrister at Littman Chambers, 12 Gray's Inn Square, London WC1R 5JP.

Read the full text or download the PDF:

Other content recommended for you.

• Is current practice around late termination of pregnancy eugenic and discriminatory? Maternal interests and abortion Julian Savulescu, Journal of Medical Ethics, 2001
• About abortion in Britain , Journal of Medical Ethics, 2001
• Conscientious objection in medicine Julian Savulescu, BMJ, 2006
• The new ethics of abortion Joan Greenwood, Journal of Medical Ethics, 2001
• After 50 years of legal abortion in Great Britain, calls grow for further liberalisation Sally Howard, BMJ, 2017
• Terminating pregnancy after prenatal diagnosis—with a little help of professional ethics? Dagmar Schmitz, Journal of Medical Ethics, 2012
• ‘A disastrous blow’: psychiatric risk, social indicators and medical authority in abortion reform in post-war Britain Sarah Crook, Medical Humanities, 2019
• Questionable benefits and unavoidable personal beliefs: defending conscientious objection for abortion Bruce Philip Blackshaw et al., Journal of Medical Ethics, 2019
• Ethics briefings Martin Davies et al., Journal of Medical Ethics, 2013
• New abortion guidance in Northern Ireland places greater emphasis on women’s health Clare Dyer, BMJ, 2016

Abortion in the US: What you need to know

Subscribe to the center for economic security and opportunity newsletter, isabel v. sawhill and isabel v. sawhill senior fellow emeritus - economic studies , center for economic security and opportunity @isawhill kai smith kai smith research assistant - the brookings institution, economic studies.

May 29, 2024

Key takeaways:

One in every four women will have an abortion in their lifetime.

• The vast majority of abortions (about 95%) are the result of unintended pregnancies.
• Most abortion patients are in their twenties (61%), Black or Latino (59%), low-income (72%), unmarried (86%), between six and twelve weeks pregnant (73%), and already have given birth to one or more children (55%).
• Despite state bans, U.S. abortion totals increased in the first full year after the Supreme Court overturned Roe v. Wade.

Introduction

Two years after the Supreme Court overturned Roe v. Wade, abortion remains one of the most hotly contested issues in American politics. The abortion landscape has become highly fractured, with some states implementing abortion bans and restrictions and others increasing protections and access. The Supreme Court heard two more cases on abortion this term and will likely release those decisions in June. Beyond the Supreme Court, pro-choice and pro-life advocates are fiercely battling it out in the voting booths, state legislatures, and courts. If the 2022 midterm elections are any indication , abortion will be one of the most influential issues of the 2024 election. So what are the basic facts about abortion in America? This primer is designed to tell you most of what you need to know.

What are the different types of abortion?

There are two main types of abortion: procedural abortions and medication abortions. Procedural abortions (also called in-clinic or surgical abortions) are provided by health care professionals in a clinical setting. Medication abortions (also called medical abortions or the abortion pill) typically involve the oral ingestion of two drugs in succession, mifepristone and misoprostol.

Most women discover they are pregnant in the first five to six weeks of pregnancy, but about a third of women do not learn they are pregnant until they are beyond six weeks of gestation. 1 Women with unintended pregnancies detect their pregnancies later than women with intended pregnancies, between six and seven weeks of gestation on average. Even if a woman discovers she is pregnant relatively early, for many it takes time to decide what to do and how to arrange for an abortion if that is her preference.

Why do women have abortions?

The vast majority of abortions (about 95%) are the result of unintended pregnancies. That includes pregnancies that are mistimed as well as those that are unwanted.

Women’s reasons for not wanting a child—or not wanting one now—include finances, partner-related issues, the need to focus on other children, and interference with future education or work opportunities.

In short, if there were fewer unintended pregnancies, there would be fewer abortions.

How common are abortions?

About two in every five pregnancies are unintended (40% in 2015). Roughly the same share of these unintended pregnancies end in abortion (42% in 2011). About one in every five pregnancies are aborted (21% in 2020).

How have abortion totals changed over time?

The number of abortions occurring in the U.S. jumped up after the Roe v. Wade decision in 1973. After peaking in 1990, the number of abortions declined steadily for two and a half decades until reaching its lowest point since 1973 in 2017. 2 Possible contributing factors explaining this long-term decline include delays in sexual activity amongst young people, improvements in the use of effective contraception , and overall declines in pregnancy rates , including those that are unintended . In addition, state restrictions which became more prevalent beginning in 2011 prevented at least some individuals in certain states from having abortions.

In 2018 (four years before the Supreme Court overturned Roe v. Wade), the number of abortions in the U.S. began to increase. The causes of this uptick are not yet fully understood, but researchers have identified multiple potential contributing factors. These include greater coverage of abortions under Medicaid that made abortions more affordable in certain states, regulations issued by the Trump administration in 2019 which decreased the size of the Title X network and therefore reduced the availability of contraception to low-income individuals, and increased financial support from privately-financed abortion funds to help pay for the costs associated with getting an abortion.

Another contributing factor, whose importance bears emphasizing, is the surging popularity of medication abortions .

The use of medication abortions has increased steadily since becoming available in the U.S. in 2000. However, in 2016, the FDA increased the gestational limit for the use of mifepristone from seven to ten weeks and thereby doubled the share of abortion patients eligible for medication abortions from 37% to 75%.

Later, during the COVID-19 pandemic, the FDA revised its policy in 2021 so that clinicians are no longer required to dispense medication abortion pills in person. Patients can now have medication abortion pills mailed to their homes after conducting remote consultations with clinicians via telehealth. In January 2023, the FDA issued another change which allows retail pharmacies like CVS and Walgreens to dispense medication abortion pills to patients with a prescription. Previously only doctors, clinics, or some mail-order pharmacies could dispense abortion pills.

Although access varies widely by state , medication abortions are now the most commonly used abortion method in the U.S. and account for nearly two-thirds of all abortions (63% in 2023). 3

This is why the Supreme Court’s upcoming decision in the Mifepristone case (FDA v. Alliance for Hippocratic Medicine) is so consequential. Among other issues, at stake is whether access to medication abortion will be sharply curtailed and whether regulations regarding medication abortions will revert to pre-2016 rules when abortion pills were not authorized for use after seven weeks of pregnancy and could not be prescribed via telemedicine, sent to abortion patients by mail, or dispensed by retail pharmacies.

Who has abortions?

Most abortion patients are in their twenties (61%), Black or Latino  (59%), low-income (72%), unmarried (86%), and between six and twelve weeks pregnant (73%). 4

The majority of abortion patients have already given birth to one or more children (55%) and have not previously had an abortion (57%). 5 Among abortion patients twenty years old or older, most had attended at least some college (63%). The vast majority of abortions occur during the first trimester of pregnancy (91%). So-called “late-term abortions” performed at or after 21 weeks of pregnancy are very rare and represent less than 1% of all abortions in the U.S.

The abortion rate per 1,000 women of reproductive age is disproportionately high for certain population groups. Among women living in poverty, for example, the abortion rate was 36.6 abortions per 1,000 women of reproductive age in 2014, compared to 14.6 abortions per 1,000 women among all women of reproductive age.

How much does an abortion cost?

The cost of an abortion varies depending on what kind of abortion is administered, how far along the patient is in their pregnancy, where the patient lives, where the patient is seeking an abortion, and whether health insurance or financial assistance is available. In 2021, the median self-pay cost for abortion services was $625 for a procedural abortion in the first trimester of pregnancy and $568 for a medication abortion.

Since 1977, the Hyde Amendment has banned the use of federal funds to pay for abortions except in cases of rape, incest, or life endangerment. Today, among the 36 states that have not banned abortion, fewer than half (17 as of March 2024) allow the use of state Medicaid funds to pay for abortions. 6 Many insurance plans do not cover abortions, often due to state limitations. Most abortion patients pay for abortions out of pocket (53%). State Medicaid funding is the second-most-commonly used method of payment (30%), followed by financial assistance (15%) and private insurance (13%). 7

Whether state law allows state Medicaid funds to cover abortions has a very large impact on the difficulty of paying for abortions and the methods used by women to pay for them. In the year before the Dobbs Supreme Court decision, 50% of women residing in states where state Medicaid funds did not cover abortion reported it was very or somewhat difficult to pay for their abortions, compared to only 17% of women residing in states where abortions were covered.

How has the Supreme Court handled abortion?

In Roe v. Wade (1973), the Supreme Court established that states could not ban abortions before fetal viability, the point at which a fetus can survive outside the womb. Under the three-trimester framework established by Roe, states were not allowed to ban abortions during the first two trimesters of pregnancy but were allowed to regulate or prohibit abortions in the third trimester, except in cases where abortions were necessary to protect the life or health of a pregnant person. The Court ruled that the fundamental right to have an abortion is included in the right to privacy implicit in the “liberty” guarantee of the Due Process Clause of the Fourteenth Amendment.

Since it was decided, Roe v. Wade has faced legal criticism. Notwithstanding these critiques, the Court upheld Roe multiple times over the next half-century including in Planned Parenthood v. Casey (1992). But after former President Trump appointed three new Justices to the Supreme Court, a new conservative supermajority overturned Roe v. Wade in Dobbs v. Jackson Women’s Health Organization (2022) and established that there is no Constitutional right to have an abortion.

In his Dobbs majority opinion , Justice Alito concluded “Roe was egregiously wrong from the start.” Writing for the majority, he underscored that “[t]he Constitution makes no reference to abortion,” and while he recognized there are constitutional rights not expressly enumerated in the Constitution, he concluded the right to have an abortion is not one of them. Justice Alito reasoned that the only legitimate rights not explicitly stated in the Constitution are those “deeply rooted in the nation’s history and traditions,” and he found no evidence of this for abortion.

Because the Court determined there is no Constitutional right to abortion, it allowed the Mississippi state law which banned abortion after 15 weeks of pregnancy with limited exceptions to go into effect. The Court ruled that states have the authority to restrict access to abortion or ban it completely and that the power to regulate or prohibit abortions would be “returned to the people and their elected representatives.”

The Court’s three liberal Justices criticized the majority’s decision in a withering joint dissent . The dissenting Justices argued the right to abortion established in Roe and upheld in Casey is necessary to respect the autonomy and equality of women and prevent the government from controlling “a woman’s body or the course of a woman’s life.” They lamented “one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens.”

How did the states respond to the overturning of Roe v. Wade?

Since Roe v. Wade was overturned, many states have implemented abortion bans or restrictions, while others have added protections and expanded access. The abortion landscape in America is now fractured and highly variegated .

As of May 2024, abortion is banned completely in almost all circumstances in 14 states. In 7 states, abortion is banned at or before 18 weeks of gestation. Many states with abortion bans do not include exceptions in cases where the health of the pregnant person is at risk, the pregnancy is the result of rape or incest, or there is a fatal fetal anomaly.

Access to abortion varies widely even among states without bans since many states have restrictions such as waiting periods, gestational limits, or parental consent laws making it more difficult to get an abortion.

Many state bans and restrictions are still being litigated in court. The interjurisdictional issues and legal questions arising from the post-Dobbs abortion landscape have not been fully resolved.

Despite the Supreme Court’s stated intention in Dobbs to leave the abortion issue to elected officials, the Court will likely hear more cases on abortion in the near future. This term, in addition to the case about Mifepristone, the Court will decide in Moyle v. United States whether a federal law called the Emergency Medical Treatment and Labor Act (EMTLA) can require hospitals in states with abortion bans to perform abortions in emergency situations that demand “stabilizing treatment” for the health of pregnant patients.

What are the trends in abortion statistics post-Dobbs?

In 2023, the first full year since the Dobbs Supreme Court decision, states with abortion bans experienced sharp declines in the number of abortions occurring within their borders. But these declines were outweighed by increases in abortion totals in states where abortion remained legal. Nearly all states without bans witnessed increases in 2023. Taken together, abortions in non-ban states increased by 26% in 2023 compared to 2020 levels.

As a result, the nationwide abortion statistics from 2023 represent the highest total number (1,037,000 abortions) and abortion rate (15.9 abortions per 1,000 women of reproductive age) in the U.S. in over a decade. The 2023 U.S. total represents an 11% increase from 2020 levels.

It’s unclear why, despite Dobbs, abortions have continued to rise . It may be because of the increased use of medication abortions , especially after the FDA liberalized regulations related to telehealth and in-person visits. In addition, multiple states where abortion remains legal have implemented shield laws and other new protections for abortion patients and providers, increased insurance coverage, or otherwise expanded access . Abortion funds provided greater financial and practical assistance . Interstate travel for abortions doubled after the Dobbs decision.

In short, the impacts of Dobbs are being felt unevenly. Although most women who want abortions are still able to obtain them, a significant minority are instead carrying their pregnancies to term. In the first six months of 2023, state abortion bans led between one-fifth and one-fourth of women living in ban states who may have otherwise gotten an abortion not to have one.

Young, low-income, and minority women will be most affected by state bans and restrictions because they are disproportionately likely to have unintended pregnancies and less able to overcome economic and logistical barriers involved in travelling across state lines or receiving medication abortion pills through out-of-state networks.

What are the effects of expanding or restricting abortion access on women and their families?

Effects of abortion restrictions on women.

Abortion bans jeopardize the lives and health of women. The impacts on their health can be especially troublesome. Pregnancies can go wrong for many reasons—fetal abnormalities, complications of a miscarriage, ectopic pregnancies—and without access to emergency care, some women could face serious threats to their own health and future ability to bear children. Abortion restrictions can place doctors in difficult situations and undermine women’s health care.

Although medication abortions are safe and effective, abortion bans could also increase the number of women who use unsafe methods to induce self-managed abortions, thereby endangering their own health or even their lives. State abortion legalizations in the years before Roe reduced maternal mortality among non-white women by 30-40%.

Enforcement of state laws that restricted access to abortion in the years before Dobbs has even been associated with increases in intimate partner violence-related homicides of women and girls.

In addition, lack of access to abortion leads to worse economic outcomes for women. After a conservative group suggested that such effects have not been well documented, a group of economists filed an amicus brief to the Supreme Court in the Dobbs case, noting that in recent years methods for establishing the causal effects of abortion have shown that they do affect women’s life trajectories. Although there has been some difficulty in separating the effects of access to abortion from access to the Pill or other forms of birth control, an extensive literature shows that reducing unintended pregnancies increases educational attainment , labor force participation , earnings , and occupational prestige for women. These trends are especially pronounced for Black women .

One example that focuses solely on abortion is the Turnaway study, in which researchers compared the outcomes for women who were denied abortions on the basis of just being a little beyond the gestational cutoff for eligibility to the outcomes of otherwise similar women who were just under that cutoff. The study along with subsequent related research has shown that women who are denied abortions are nearly four times more likely to be living in poverty six months after being denied an abortion, a difference that persists through four years after denial. They are also more likely to be unemployed , rely on public assistance , and experience financial distress such as bankruptcies, evictions and court judgements.

Finally, increased access to abortion results in lower rates of single and teen parenthood. State abortion legalizations in the years before Roe reduced the number of teen mothers by 34%. The effects were especially large for Black teens.

Effects of abortion restrictions on children

Along with contraception, access to abortion reduces unplanned births. That means fewer children dying in infancy, growing up in poverty, needing welfare, and living with a single parent. One study suggests that if all currently mistimed births were aligned with the timing preferred by their mothers, children’s college graduation rates would increase by about 8 percentage points (a 36% increase), and their lifetime incomes would increase by roughly $52,000.

Despite this evidence that the denial of abortions to women who want them would be harmful to women and to children once born, those who are pro-life argue that these costs are well worth the price to save the lives of the unborn. As of April 2024, 36% of Americans believe abortion should be illegal in all (8%) or most (28%) cases, while 63% of Americans believe abortion should be legal in all (25%) or most (28%) cases.

Looking ahead

The abortion landscape in America is continually evolving. Whereas pro-choice advocates will seek to expand access and add additional protections for abortion patients and providers, opponents of abortion will continue to criminalize abortions and further restrict availability.

Abortion will be one of the top issues of the 2024 elections in November. Democratic candidates in particular believe abortion is a winning issue for them and will broadcast their pro-choice stance on the campaign trail. Some evidence suggests the overturning of Roe has galvanized a new class of abortion-rights voters. Multiple states will have abortion referenda on the ballot .

The Supreme Court’s Dobbs decision will not prevent women and other citizens from affecting the legislative process by voting, organizing, influencing public opinion, or running for office. What they do with that power in November remains to be seen.

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The Brookings Institution is financed through the support of a diverse array of foundations, corporations, governments, individuals, as well as an endowment. A list of donors can be found in our annual reports published online  here . The findings, interpretations, and conclusions in this report are solely those of its author(s) and are not influenced by any donation.

• We recognize people of all genders become pregnant and have abortions, including about 1% of abortion patients who do not identify as women or female. For concision, we use “women” and female pronouns in this piece when discussing individuals who become pregnant.
• The Guttmacher and CDC data produced in this primer only represent legal abortions that occur within the formal US healthcare system. They do not include self-managed which occur outside of the formal US healthcare system.
• As of March 2024, 29 states have laws that restrict access to medication abortion, for example by requiring ultrasound, counseling, or multiple in-person appointments.
• We define low-income as earnings below 200% of the federal poverty level.
• The CDC abortion data is less complete than the Guttmacher Institute data and omits abortion data from states which account for approximately one-fourth of all abortions in the U.S.
• Today, roughly 35% of women of reproductive age covered by Medicaid (5.5 million women) are living in states where abortion is legal but state funds are not allowed to cover abortions beyond the Hyde exceptions of rape, incest, or life endangerment.
• Respondents could indicate multiple payment methods.

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Phenomenology of pregnancy and the ethics of abortion

Fredrik svenaeus.

Centre for Studies in Practical Knowledge, Södertörn University, 141 89 Huddinge, Sweden

In this article I investigate the ways in which phenomenology could guide our views on the rights and/or wrongs of abortion. To my knowledge very few phenomenologists have directed their attention toward this issue, although quite a few have strived to better understand and articulate the strongly related themes of pregnancy and birth, most often in the context of feminist philosophy. After introducing the ethical and political contemporary debate concerning abortion, I introduce phenomenology in the context of medicine and the way phenomenologists have understood the human body to be lived and experienced by its owner. I then turn to the issue of pregnancy and discuss how the embryo or foetus could appear for us, particularly from the perspective of the pregnant woman, and what such showing up may mean from an ethical perspective. The way medical technology has changed the experience of pregnancy—for the pregnant woman as well as for the father and/or other close ones—is discussed, particularly the implementation of early obstetric ultra-sound screening and blood tests (NIPT) for Down’s syndrome and other medical defects. I conclude the article by suggesting that phenomenology can help us to negotiate an upper time limit for legal abortion and, also, provide ways to determine what embryo–foetus defects to look for and in which cases these should be looked upon as good reasons for performing an abortion.

Introduction

In this article I want to investigate the ways in which phenomenology could guide our views on the rights and/or wrongs of abortion. To my knowledge very few phenomenologists have directed their attention toward this issue (but see Mumford 2013 ), although quite a few have, indeed, strived to better understand and articulate the closely related themes of pregnancy and birth, most often in the context of feminist philosophy (Adams and Lundquist 2013 ; Bornemark and Smith 2015 ; Diprose 2002 ; Toledano 2016 ; Young 2005 ). After introducing the ethical–political contemporary debate about abortion I will move on to phenomenology in the context of medicine and how phenomenologists have viewed the human body not only as a biological organism but also as a “lived body”. I then turn to the issue of pregnancy and discuss how the embryo or foetus could appear for us, particularly from the perspective of the pregnant woman in quickening, and what such “showing up” may mean from an ethical perspective. The way medical technology has changed the experience of pregnancy—for the pregnant woman as well as for the father and/or other close ones—is discussed, particularly the implementation of early obstetric ultra-sound screening and blood tests (NIPT) for Down’s syndrome and other medical defects. I introduce the idea that screening measures for diseases/defects should only be strived for when the baby to be born with the disease/defect could be predicted to lead a life considerably more painful and alienated in terms of illness suffering than what is the case in a standard human life. I conclude the article by suggesting that phenomenology can help us to negotiate an upper time limit for legal abortion in absence of indications of medical defects. Phenomenology could also be helpful in providing ways to determine what embryo-foetus defects to look for and in which cases these should be looked upon as good reasons for performing an abortion, also in cases beyond the upper time limit for legal abortion in absence of indications of defects.

The ethics of abortion

The ethics of abortion has been a battleground ever since the rise of bioethics in the late 1960s. The discussions on the wrongdoing of, or the right to, terminating pregnancy are heavily politicized and jam-packed with rhetoric, especially in the USA, but also in many other Western countries (Dworkin 1994 : chapter two). The stalemate between pro-lifers and pro-choicers is more or less total and has often been presented as a war between religious and/or conservative and feminist and/or liberal ideologies and many different solutions have been established by the laws regulating abortion we find in the case of different countries (Warren 2009 ).

On the pro-life side you find the idea that the embryo-foetus is a person from very early on, perhaps even from day one. However, persons are most often understood as creatures possessing self-consciousness, language, memory and ability to plan their actions, so this is hardly a convincing view (DeGrazia 2005 : Chap. 2). Even considering the fact that children in the normal case do not attain full personhood until about 4–5 years of age and that some children never do (because of defects) it remains unconvincing to assign personhood to a ball of cells only, even if these cells possess human DNA. A much more persuasive thought is that the embryo-foetus is protection worthy because it is a potential person (Gómez-Lobo 2004 ). While it is hard to deny that all embryos by way of their biology are human beings, the question whether they are also potential persons depends on they way one defines identity and potentiality in this context (Brown 2007 ). The genetic make up of the embryo, so the potentiality argument goes, directs its development from the very beginning, if it is given the opportunity to mature in its natural environment (meaning the uterus of a woman). Abortion is wrong, according to the pro-life argument, because it ends the life of a (potential) person.

On the pro-choice side you find the idea that the pregnant woman has the right to decide upon ending pregnancy, because the embryo-foetus is a part of her body. Persons have the right to decide upon what to do with their own bodies because the bodies belong to them. The idea of patient autonomy has been on the agenda of bioethics from the start and the right to legal abortion for every woman has been pursued as a part of this agenda—and other, political—movements. Women have the right to decide on issues that concern their reproductive life and the right to legal abortion is a part of this set of rights, as is the access to birth control or IVF. According to the pro-life argument, the choice if pregnancy should continue or not is for the pregnant woman to take, and nobody else’s business. If the foetus lives or dies is her decision, at least up until the point when it could survive outside her body by help of an incubator (Thomson 2006 ).

Could phenomenology offer a way to understand the ethical dilemmas surrounding abortion that would unlock the stalemate between pro-lifers and pro-choicers? Could it give us some ethical advice on in what situations abortion is a legitimate choice for a pregnant woman and in what situations it is not? I think it can, but first a disclaimer should be made. To do a phenomenological-ethical analysis of abortion is not the same thing as writing a law text proposal. Considerations beyond ethical arguments may play into political decision making in this and many other bioethics areas, and legitimately so (van der Burg 2009 ). Phenomenology is rather equipped to provide a point of view that better informs political decision- and law making than it can provide detailed regulations on its own. But this, I think, is characteristic for many valuable philosophical contributions to bioethics, not only for phenomenology. What phenomenology is able to offer is a perspective, which will make us see things slightly differently and, I hope, more comprehensibly in abortion ethics. Let us start with a brief introduction of what it means to do phenomenological analysis in questions regarding medical practice and health care.

Phenomenology and medicine

The main topic of phenomenology of medicine so far has been bodily experiences of phenomena such as illness, pain, disability, giving birth, and dying (Meacham 2015 ; Toombs 2001 ; Zeiler and Käll 2014 ). Everybody has a body—a body which can be the source of great joy but also of great suffering to its bearer—as patients and health care professionals know more than well. The basic issue that the phenomenologist would insist on in this context is that not only does everybody have a body, everybody is a body. Not only can I experience my own body as an object of my experience—when I feel it or touch it or look at it in the mirror—but the body is also that which makes a person’s experiences possible in the first place. The body is my place in the world—the place where I am which moves with me—which is also the zero-place that makes space and the place of things that I encounter in the world possible (Gallagher 2005 ).

Normally what the phenomenologist refers to as “the lived body” remains in the background of our experience and our attention is instead focused on the things in the world that we are engaged with. In the works of Maurice Merleau-Ponty, to mention the most well know “body phenomenologist,” we find penetrating descriptions and conceptual analyses of such everyday experiences that are bodily in nature even though we are not focused upon the body: seeing, listening, walking, talking, dancing, reading, etc. (Merleau-Ponty 2012 ). In some situations, however, the body calls for our attention, forcing us to take notice of its existence in pleasant or unpleasant ways (Leder 2016 ; Slatman 2014 ). This experienced body can be the source of joy, as when we enjoy a good meal, do sports, have sex, or are just relaxing after a hard day of work. However, the body can also be the source of great sufferings to its bearer, when a person falls ill or is injured and experiences pain, nausea, fever, or difficulties to perceive or move (Aho and Aho 2008 ; Carel 2008 ).

When I am developing a headache, an example explored by Jean-Paul Sartre in Being and Nothingness , the phenomenologist would point out that the pain is not only a sensation experienced inside my head but something that invades my entire world experience (Sartre 1992 ; Svenaeus 2015 ). If the doctor examines my body with the help of medical technologies she may be able to detect processes going on in my brain and the rest of my body that are responsible for the headache, but they will never find my experience , the feel and meaning the pain has for me in my “being-in-the-world,” to speak in a phenomenological idiom invented by Martin Heidegger in his magnum opus Being and Time (1996). This difference between the first-person and the third-person perspective on the body is an important one. It makes it possible to explain not only how human experience is meaningful and material simultaneously, but also how the body belongs to a person in a stronger and more primordial sense than a pair of trousers, a car or a house do. A phenomenological take on embodiment is also helpful in understanding pregnancy and the way medical technologies are involved in maternal care and to these issues we now turn.

Phenomenology and abortion

From the phenomenological point of view, questions concerning if, when, and on what indications abortion may be performed, must be answered by way of reference to the condition and situation of the pregnant woman, as well as the condition and situation of the embryo–foetus in its different developmental stages as they are revealed through the pregnant woman’s experiences and by way of medical investigations. As we will see, the embryo-foetus shows up in human experiences also before it reaches a stage of development in which we can assume that it has experiences of its own (Bornemark 2015 ). The main difference between the phenomenological and most pro-choice views on abortion in such an analysis will be that the body of the pregnant woman is not considered as her property, but as an embodied way of being that goes through drastic and significant changes in the process of pregnancy (Mumford 2013 ). The main difference between the phenomenological and most pro-life views on abortion will be that the being of the embryo–foetus must be considered from the perspective of the pregnant woman’s life as soon as implanted and not simply as a person-in-being taking residence in her body (Mackenzie 1992 ; Young 2005 ). As we will see, the focus on the embodied experience of pregnancy in developing arguments about abortion accords importance to the way the woman experiences the foetus presence inside her at a certain point of time (quickening) and the assumed experiences had by the foetus at a later point (sentience). Important is also the time point at which the foetus could survive in an incubator if pregnancy is ended (viability), because this underlines that at least from this time point we are dealing with two individuals and not one embodied experience only.

At least two different questions have to be dealt with in a phenomenological-ethical investigation of abortion. First, under what circumstances and possible time limits should it be permitted by law and made medically available for a woman to abort her embryo-foetus simply because she wishes to do so. Second, what other circumstances concerning the pregnancy (e.g. brought about by way of rape, fear for the woman’s life if continued) and state of the foetus (medical defects) would make it reasonable to extend an established time limit, and in these cases, how far should the benchmark be moved?

Let us begin with the question of legal abortion. The conditions and limits to qualify for such opportunities vary significantly in the laws of different countries. And the standards have often changed over time due to shifts in political majorities. The countries in Africa, South America, and South East Asia, generally do not allow abortion with the exception of rape or on medical grounds. On the other hand, abortion law is most often permissible in the countries of North America, Europe, North and West Asia, as well as Australia and New Zealand. However, among the countries that allow legal abortion, the circumstances concerning the procedure for a woman’s informed consent may differ. And as it stands, the upper time limit of legal abortion varies significantly from country to country, from 10 to 24 weeks of gestational time.

What circumstances have been taken into consideration in the political process of deciding how late a woman may decide upon abortion? Generally, countries that have a considerably vast time frame—USA, Great Britain, Singapore, Sweden, The Netherlands—refer to the rights of the individual woman to do as she pleases with her own body. Whereas countries that adopt stricter limitations—France, Finland, Denmark, Belgium, Portugal, Vietnam, to offer some examples—do so not on grounds of embryo rights, but, nevertheless, according to the perspective of the growing embryo–foetus (see my introduction to abortion ethics above). This perspective becomes acutely important in the stages when the foetus is suspected to feel things, such as pleasure or pain, or if it could possibly survive in an incubator. The question of when the foetus is equipped to feel pain is disputed and infused by the political debates surrounding abortion. As a consequence there is no scientific consensus on the issue, but week 22 appears to be a good estimation (Bellieni 2012 ). Babies born as early as week 22, or even late in week 21, have been saved in neonatal care (Edemariam 2007 ). It should be stressed, though, that babies born earlier than week 23 rarely survive, and that very-early prematurely born babies—as a rule—suffer from a variety of severe health problems.

The scientific and technological means to explore the life of the foetus and inventions that make it possible for prematurely born babies to survive outside the womb, affect our views on the acceptable upper time limit of abortion. If the right to abortion is defended on the grounds that the foetus is a part of a pregnant woman’s body, and nothing else , that the foetus may feel pain and possibly survive even should the pregnancy be terminated, appears to undermine the view that it is no more than a kind of extra organ belonging to the pregnant woman. However, should abortion be performed to save the life of the pregnant woman, or because the chances of the baby’s survival without severe defects are slim, the right (or even obligation) to perform abortion in week 22 or beyond could be defended on these grounds instead of the “my-body right” view. We will return to the issue of medically motivated abortions below.

Quickening and bodily alienation

What other developmental milestones in the life of an embryo-foetus than sentience and viability should be taken into account when determining the time limits of legal abortion? From a phenomenological perspective, the most obvious one is the pregnant woman’s experiences of “quickening” (Bornemark 2015 ; Young 2005 ). The first sensations had by the pregnant woman of the foetus moving and kicking in her belly are, as a rule, felt in gestational week 18–20 (Sinha et al. 2012 : 4). In the literature and on various webpages one finds reports of even earlier occurrences of quickening, so let us add two extra weeks (week 16) to be on the safe side. (In gestational weeks before week 16 it is probably very hard, if not impossible to distinguish foetal movements from bowel movements (gas).)

Quickening is a very significant occurrence because the woman can actually feel the presence of another human being inside her. This occurrence is very different from the experience of bodily alienation in illness that has been analysed by many phenomenologists (see the section on phenomenology and medicine above). Drew Leder has called such alienation the “dys-appearance” of the body in pain and illness in contrast to the dis appearance of the body enjoyed when the body stays in the background of our attentive field, which is the normal condition (Leder 1990 : 69). The lived body, indeed, has a kind of background feel to it all the time, a way of being present that we can focus our attention upon by way of will. Yet, this way of sensing the different parts of the body, like when we do what is called a “body scan” in mindfulness training, is very different from the alienating force of the dysappearing body in pain. The healthy body offers a kind of primary being-at-home for us, which is turned into a not-being-at-home in illness (Gadamer 1996 ; Svenaeus 2009 ).

Iris Marion Young, who published her classic piece on the phenomenology of pregnancy already in 1983, argues that the experiences of pregnancy, including quickening, are not alienating in themselves (Young 2005 ). What alienates the life of pregnant and birthing women, according to Young, is the medical-technological gaze associated with the equipment of maternal care. Young’s perspective is typical of early phenomenology-of-medicine studies, assuming the medical perspective to be inevitably alienating and oppressive in nature, in contrast to a personally experienced, bodily transformation that would preserve the dignity and autonomy of the patient. In contrast to this view, I would argue that medical science and the attention of doctors and nurses are not necessarily alienating or oppressive for the patient (Slatman 2014 ; Svenaeus 2013 ). It is certainly neither of these when medical technologies provide means to limit severe suffering and save lives, such as is regularly the case in maternal care and birthing care. Notwithstanding this critique, I think Young and other feminist scholars are right in pointing towards the risks of unnecessary medicalizing pregnancy, and also in claiming that pregnancy, despite involving the experience of “an alien,” is not necessarily an alienating experience in this regard.

There is a clear difference between, for instance, the typical occurrence of morning sickness in early pregnancy and the events of quickening. The difference is between the experiences of the lived body as alien—in this case in nausea—and the experiences of another living being in my body. The foetus may to some extent be perceived as an unwelcome stranger—particularly if the pregnancy is unwanted—but in most cases, quickening is instead referred to as the first contact with the baby to come. To feel the foetus is to feel the togetherness of mother and child and this feeling is generally not referred to as alienating by the pregnant woman, but rather as the feeling of a different, and in some ways, fuller state of being (Bornemark 2015 ). Many feminists developing arguments about the right to legal abortion appear to miss, or, even, gravely misconstrue, the experiences of the pregnant woman by portraying it in terms of being chained to an alien when it is rather a matter of perceiving the successive arrival of a child. This is not only the case in Judith Jarvis Thomson’s famous thought experiment of waking up in the hospital back to back with an unconscious violinist, who has been plugged into your circulatory system (Thomson 2006 ), but also in cases of comparing the foetus to, for instance, a fish that has taken residence in the pregnant woman’s body (see the criticisms found in Mackenzie ( 1992 ) and Mumford ( 2013 )).

Admittedly, this way of attempting to specify the phenomenological conditions of normal pregnancy runs the risk of underestimating the individual differences between pregnancies. If pregnancy is unwanted for the woman, and, especially, if it has been brought about by rape, the pregnant woman may feel the presence of the foetus to be exactly alien in nature. This may also be the case if the woman is afraid of how the new state of being will change her life, even if she does not wish to have an abortion, say if she is afraid of the pains of giving birth or of becoming a mother. Even so, quickening may in such cases also serve as a “counter alienating” experience in which the woman feels the foetus and exactly through this contact with a child to be accepts her pregnancy as a not entirely bad thing. In any case, a 16 weeks gestational time upper limit for legal abortion should provide plenty of time for early legal abortions in cases in which women do not want to continue with their pregnancies and give birth.

The appearance of the foetus through obstetric ultrasound

The experience of quickening appears to be a strong candidate for setting an upper limit for legal abortion from the phenomenological point of view. This idea is not new; it appears to have proliferated in many pre-modern societies and cultural contexts that did not explicitly forbid early abortions (Dworkin 1994 : 35 ff.). However, contemporary medical technologies have changed the way we establish the first contact with the child to come in comparison with pre-modern times. As a routine part of obstetric care, ultrasound pictures of the foetus are currently made for reasons of determining a more exact date of gestation, and to look for early signs of foetal abnormalities, such as Down’s syndrome. Obstetric ultrasounds are routinely performed in most developed countries of the world in the gestational interval of weeks 16–20 (and often earlier, see below). This time interval squares well with the first perceived movements of the foetus on part of the pregnant woman (quickening).

The differences between visual and inner-felt proof of foetal life are significant and it could be claimed that the pictures provided in the clinic are more of scientific documentation than contact with the baby to come. However, the routine of listening to the heartbeats of the foetus when viewing it on the screen and the provision of detailed, realistic pictures and videos by specialized commercial medical services, complicate the view that the ultrasound is only a medical-diagnostic tool. As a matter of fact, it could be argued that the pictures and videos of the foetus to be shared with others and put in the family album, are perceived as more real than the movements of the foetus experienced in quickening, even from the perspective of the pregnant woman. Vision, in comparison to the other senses (hearing, touch, taste and smell) has been privileged through our cultural history as offering the ultimate access to things in the world (“I see”), and this appears to apply even in the case of obstetric ultrasound and pregnancy. Ultrasound “opens up” the body of the pregnant woman, providing a new way of experiencing the presence of the foetus, for her, and for others (Mills 2011 : 101–21).

As mentioned above, diagnostic ultrasound is carried out in gestational week 16–20 as a part of standard maternal care. This time interval squares well with the events of quickening and the technologically mediated contact with the foetus provided by the pictures, though it changes the experience of the pregnancy, does not change the view on the upper time limit of legal abortion from the phenomenological point of view. What complicates the matter of providing an upper time limit is the recent introduction in many countries of more or less routine ultrasound scans in a much earlier stage of pregnancy, roughly week 10–12. The reason for introducing these scans has been that ultrasound is less invasive than tests of foetal DNA for genetic disorders. For a long time, such tests have been recommended in high-risk pregnancies (e.g. high age of the mother to be), to test for Down’s syndrome (DS) and other medical defects. Because the sampling of amniotic fluid containing foetal DNA requires the insertion of a needle into the uterus, it carries a certain risk for miscarriage. Early ultrasounds were introduced to scan for embryo-foetal defects that could then be either confirmed or denied by way of amniocentesis (and/or maternal blood serum tests). The early ultrasounds, however, are presently in some countries not only offered in cases of high-risk pregnancies, but rather as a standard part of maternal care (in Denmark, for instance). In the countries where early ultrasound has been introduced, in combination with blood tests from the pregnant woman, the practice has lead to the performance of a large number of abortions when tests indicate a high risk for DS, which has subsequently radically reduced the number of babies born with this defect (Gordon 2015 ).

That a large number of babies with chromosomal or other congenital defects are never born because a life with such a defect is considered not to be worthwhile, and that the subsequent disabilities in question become rare or inexistent, might be problematic in itself. Our concern here, however, is how the early ultrasound affects our views, and arguments on legal abortion from the phenomenological point of view. If early ultrasound is not made use of as a routine test in maternal care, but only as a way of scanning high-risk pregnancies, it does not significantly change the analysis I have developed above. However, if early ultrasound is becoming part of standard maternal care, and is also being presented by the medical staff as a first opportunity to get to know the baby to come, the phenomenology of a pregnancy’s early-weeks will radically change That the same pictures made in week 10–12 to scan for medical defects routinely find their ways into the family albums of the prospective parents is deeply problematic, if we want to defend a right for women to legal abortion with an upper time limit of week 16 (the first possible experiences of quickening). Admitting that some parents to be may see the early ultrasound as a strictly medical procedure (no pictures saved, maybe not even looking at the screen) the standard way appears to be exactly to embrace it as way of making contact.

The child to come appears for the parents by way of the early ultrasound at a stage in pregnancy at which it was previously not identifiable as something distinct from the woman’s body. From the perspective of the doctors, nurses and midwifes, this is considered a good thing, since they think it makes it easier for the woman to embrace the pregnancy and take good care of the foetus. The problem from the vantage point of legal abortion, however, is that some foetuses in an early stage of development take on the ethical standing of children to be whereas others (that have not been scanned, or, are aborted as a consequence of the scan) are not considered to have any significant ethical standing. This is clearly ambivalent and the only way to remedy this inconsistency is, either, to adapt the upper time limit of legal abortion to the routine of the early ultrasound, or to only apply early ultrasound to high-risk pregnancies rather than use it as a standard way of establishing contact with the child to be. If we aim for the first, we should set the limit of legal abortion the same week that such a test is scheduled in maternity care. If we aim for the second, the last week of legal abortion should be the earliest week of quickening. The law would obviously have to state a specific week rather than refer to events in individual pregnancies.

Abortion for medical reasons and the responsibility appeal

So far I have discussed how a phenomenological perspective on pregnancy will affect our views on legal abortion. Cases of pregnancies involving health risks for the pregnant woman open up for a permissive (or, even, injunctive) view on abortion in stages later than the weeks of gestation that we have discussed so far. If the life of the woman is threatened by the pregnancy, this overtrumps the perspective of the appearing, or even feeling foetus, as the foetus is not a person, but only a person in potential being. (The same argument could possibly also be used in cases of rape, in which the dignity, rather than the life, of the pregnant woman is threatened.) The remaining central reasons for abortion on grounds other than the woman’s wish not to have a child (at the present time) are of embryo-foetal defects identified through medical examinations and tests. Since it appears not only cruel, but also pointless to offer diagnostic tests without the option of abortion should the tests turn out positive, the challenging ethical question thus becomes: what tests should be made available or be made mandatory in maternal care. This brings us to the issue of if, and how, to choose the characteristics of children to be.

In his book, The Imperative of Responsibility: In Search of an Ethics for the Technological Age , the phenomenologist Hans Jonas offers the example of the new born, “whose mere breathing uncontradictably addresses an ought to the world around, namely, to take care of him” (Jonas 1984 : 131). According to Jonas, the new born child, by way of its shear appearance, demands our attention and assistance in preserving his life and allowing him to prosper. The new born ushers in an ethical appeal to shoulder responsibility for his vulnerable and dependent being that is similar to the claim that originates from the face of the other in Levinasian ethics (Levinas 1991 ). This claim targets a temporal dimension by addressing the need to resume responsibility for the future and the generations to come (Jonas 1984 : 136). Jonas’s main message in the book is the need to resume control of technologies that threaten the future of human life with their potential to destroy the ecological niches necessary for life on the planet (e.g. weapons of mass destruction, the plundering of natural resources and industrial pollution). However, his example of the new born child, who presents an “you ought to take responsibility for me,” is also interesting in the pre-birth context, even though Jonas himself never presented any consistent view on the rights or wrongs of abortion in the way he took a stand against cloning and genetic enhancement (Jonas 1987 : 162–218).

As I have surveyed above, it could be argued that the foetus presents a similar, although perhaps weaker, claim of a need to be taken care of by presenting itself to the pregnant woman via quickening, or to her and other close responsibility-assumers in the ultrasound image. Such a claim would challenge the woman’s right to abortion, as well as other behaviours that would pose a risk to the health and life of the foetus. But what if the claim to be taken care of collides with knowledge about the future situation of the mother to be, or child to be, which makes the continuation of pregnancy to full-term appear irresponsible ?

The responsibility to secure a future for the child when the pregnant woman judges her chances of taking good care of the new born to be slim or non-existent, for financial or other reasons, could possibly be handled by way of adoption, which means the challenge against the right to abortion in such cases of late abortions would still hold from the phenomenological angle. But what if the prediction of the future has to do with the baby’s health and possibility for flourishing rather than the mother’s? To knowingly give birth to a child with bodily defects that will lead to severe suffering and/or a radically shortened life, such as is the case in disorders such as anencephaly, Edward’s syndrome (Trisomy 18), muscular dystrophy, cystic fibrosis or Tay-Sachs disease, appears irresponsible and immoral, at least if the pregnancy could have been terminated when the foetus remained in a non-viable, or, even better, pre-quickening stage. The diagnostic tests for such genetic diseases are available precisely to spare future human beings of unnecessary suffering (Milunsky and Milunsky 2016 ).

This does not mean that such a human life with severe disease would in every case not be a life worth living—this depends on the severity of the disorder and the circumstances of the individual case— but it could be predicted to be considerably more painful and alienated in terms of illness suffering for the person in question. From a phenomenological perspective suffering could be viewed as a painfully attuned being-in-the-world separating a person from her goals and potentials in life (Svenaeus 2014 ). Such a mood (or combination of moods) involves painful experiences at different levels that are connected but are nevertheless distinguishable by being primarily about, firstly, the person’s embodiment, secondly, her engagements in the world together with others, and, thirdly, her core life-narrative values. The being-at-home or not-being-at-home of a person in a mood is interpreted as a being-in-the-world, which is also a being-as-a-body and a being-in-time (Heidegger 1996 ). Suffering, especially the sufferings brought on us by illness, is a bodily experience, but the alienating powers of suffering cover a territory that includes many kinds of life-world and self-interpretation issues.

Suffering is according to such a view in essence a feeling (a mood), but as such it has implications for and involves the person’s entire life: how she acts in the world, communicates with others, understands and looks upon her priorities and life goals. It is essential for medicine and bioethics to discern these different layers of suffering and how they are connected through the suffering-mood (Svenaeus 2014 ). Suffering-moods are typically intense and painful in nature, but they may also display a rather subconscious quality in presenting things in the world and my life as a whole in an alienating way. In the situation of living with severe diseases, like the ones mentioned above, it could be argued from the phenomenological point of view that the mood of the afflicted person is painful and the life alienated to a degree which makes such a life, if not worse than never being born, at least considerably worse than normal.

An argument in favour of abortion in this context would also include medical defects that tend to make a human life considerably worse when compared with normal circumstances, even if offering a rather large number of healthy years before facing a painful and deadly illness-suffering (Huntington’s disease, for instance). In such cases, the suffering will be considerable as soon as the person gets to know about her inevitable future falling-ill, and this suffering will also include knowledge about the risks of passing on the disease to children. The use of “considerable” in the argument above is admittedly vague, but it should at least lead us to assume grounds in support of abortion, also when the pregnancy has developed beyond the week limits we have considered for abortion on non-medical grounds. When the defect can be predicted to lead to severe suffering and a radically shortened life of the new born, the responsibility claim possibly transforms into an obligation to abort on part of the woman for the reason of avoiding undue suffering of a future person (DeGrazia 2005 : Chap. 7).

Prenatal diagnostic technologies and Down’s syndrome

The diagnostic tests on offer in maternal care scrutinize embryo-foetal DNA or other biomarkers found in amniotic fluid (or in the blood) of the pregnant woman, as well as bodily defects visible by way of the outer appearance of the foetus in forms of imaging such as ultrasound (Milunsky and Milunsky 2016 ). The currently most debated test in prenatal diagnostics is the ultrasound scan to detect Down’s syndrome (DS) by way of the NT procedure (nuchal translucency ultrasound scanning), followed up by blood serum and/or amniocentesis, also called combined ultrasound and blood (CUB) test. The questioning from an ethical point of view of ultrasound scanning for DS has been directed particularly towards early routine scanning beyond the boundaries of risk groups. Recently, the possibilities to detect genetic disorders by way of analysis of the very small amounts of foetal DNA that can be found in the blood of the woman from very early on in pregnancy (NIPT) has also been brought to the centre of attention (Dondorp et al. 2016 ). Such tests can be made to scan for genetic defects—or for genes associated with other characteristics than diseases—very early in pregnancy with very high accuracy. However, if the genetic disorders scanned for are rare, NIPT could nevertheless lead to a considerable number of false positives, if the test is used to scan the whole population of pregnant women as opposed to only risk groups. (NIPT is short for “non invasive prenatal testing,” which is potentially confusing, since a needle is injected to obtain the blood sample from the pregnant woman, but the use of “non invasive” is clearly meant in concern of the uterus in this case.)

The argument from critics against a recommended, more or less obligatory, early diagnostic test for DS in maternal care is that the tests lead to unnecessary abortions of foetuses at risk of carrying DS (especially when performed in an early stage of pregnancy) and that this is unfortunate because, first, these children may be unaffected (false positives), second, even if children have the syndrome, they may lead a good life, and, third, the tests and the ensuing abortions (carried out in about 90% of the positive cases) send the message to persons with DS and their families that these children are an unnecessary burden to society (Gordon 2015 ). In addition to these three concerns, one should mention that standard prenatal scanning for DS and other genetic disorders or diseases could lead to a less tolerant view in general on persons who are different from the healthy norm in our society in the future (Parens 2015 ).

Acknowledging these points of criticism, one should nonetheless take into consideration that even though a life with DS is not, as a rule, a life filled with suffering, it is without doubt a life that is more afflicted by medical problems than normal—a considerably higher risk of developing heart failure, neurological spasms, sleep apnoea, problems with speech, endocrine disturbances, gastrointestinal diseases and mental disorders are the most prevalent ones (Hickey et al. 2012 ). One should also remember that a life with DS, even if it does not involve major medical problems, is fraught with intellectual disabilities and that it is, in most cases, a life that is shorter than other human lives.

Admitting the medical problems to be real and in some case devastating to the life of persons with DS, the phenomenological perspective on suffering and its counterpart, flourishing, by way of concepts such as attuned being-in-the-world (see above), leave room for alternative ways of leading a non-alienated live with DS. Core life goals could be different than normal and so could the life narratives that DS persons identify with and embody together with family and friends. If possibilities for work and other meaningful activities are provided, such persons could flourish and contribute to our culture and society in many ways.

The main problem associated with judging if a life with DS is considerably more prone to suffering and/or considerably less prone to flourishing than a “standard” human life is that this varies from case to case. Some persons with DS appear to live happy and successful lives, whereas others suffer or are robbed of most normal life opportunities as a consequence of the syndrome. The prenatal tests cannot determine whether the child will be severely disabled or a case of “high performing” DS. However, the tests are able to determine with high accuracy—especially if we are considering ultrasound in combination with amniocentesis or NIPT—that the child will suffer from DS with standard complications in some degree of severity from the first day of birth. This is a main difference in comparison with other (prenatal) genetic tests that determine statistical risks for developing diseases at some point in life, tests that are already around and that will likely become increasingly common in the future with NIPT.

Most diseases are not single-gene disorders but multifactorial, involving many genes that determine risks for developing a disease in combination with environmental factors. We do not currently apply such diagnostic tests to determine risks that a child will develop, for instance, heart disease, various forms of cancer, ADHD or depression, at some point in life, because the risks associated with single genes or even combinations of many genes are too low and uncertain to motivate abortion, even if the tests would turn out positive. Perhaps the ultrasonic scanning for DS should rather be considered as such a low-risk test on the grounds that what the test should really determine if being relevant is the risk of developing DS with major medical problems and severe intellectual disabilities, not DS as such. If the current diagnostic test is to be considered as relevant or not depends on the size of the group of severe-suffering DS persons in relation to the group of mild-suffering DS persons. If the ratio is something like 20–80 we should probably not use the NT test as a standard procedure in maternal care. If the ratio is more like 80–20, the risk for severe-suffering DS is probably too high to not offer the test as a part of routine maternal care. I am currently unable to make the estimation, but I think this way of approaching the ethics of prenatal diagnostics for DS would be the best way to proceed. In making such an estimation, it should be kept in mind that the content moods or even happy moods, which persons with DS appear to standardly enjoy, clearly counts against considering such a life as fraught with suffering from the phenomenological perspective, despite the fact that important ways to flourish may be closed as a result of intellectual disabilities (Svenaeus 2014 ).

The medical-technological gaze

Would a 50–50 ratio be enough to motivate scanning for DS in early pregnancy? Perhaps, but much depends on how criteria are set for the two groups of mild and severe DS. We will likely see much more risk-ratio and severity-issue discussions for a variety of diseases in the future if NIPT in early pregnancy is implemented as a standard part of maternal care. Since such risks, linked to certain genes, may also, in some cases, be “risks” of developing characteristics that we treasure—emotional sensitivity or intelligence in the case of depression and bipolar disorder, for instance—it is a development that should be closely monitored and ethically scrutinized. A broad implementation of NIPT would likely lead to a much larger number of abortions performed to avoid giving birth to babies with risks for developing diseases and/or carrying genetic defects of varying kinds. Such a development is ethically problematic for the different reasons that I have touched upon above: false-positive cases of abortions, abortions of embryos–foetuses that would have given rise to persons with lives that are not considerably worse than normal, stigmatizing effects for the persons who live with the diseases and disorders, and a less tolerant view in general on abnormalities in our society.

However, replacing early ultrasound scanning for DS with NIPT only, would have one significant advantage in light of the phenomenological argument about abortion developed above. The embryo–foetus tested by way of NIPT would not appear to the parents in the way the moving image of the foetus on the screen does and it would not result in any family album photographs. The blood test would not bring about any contact with a child to be, in the manner that ultrasound imaging currently does, but would rather be a medical-technological examination of the pregnant body, only. Nevertheless, one should not underestimate the way medical technologies, also in the cases not giving rise to spectacular images, is able to transform our perception and ways of thinking about what matters in a human life and what is normal. We are increasingly becoming objects of a medical-technological gaze, which we are making our own. Heidegger in the 1950s called this “Gestell”—an enframing of our world by science through which everything consequently shows up as calculable and usable (Heidegger 1977 ). Heidegger, in his essays on technology, mainly talked about forests, rivers and nuclear technology subjecting us to the Gestell , but the true extension of his analysis is the recent developments of gene technology, in which humankind itself is becoming the manipulated, not only the manipulator (Svenaeus 2013 ). Early ultra sound could be viewed as such an enframing, too, transforming pregnancy into production of normal babies, although the cultural meaning and use is arguably much more manifold than that, as I have discussed above.

It is obvious that many medical technologies, if brought and kept within the bounds of sound judgement and application, are too valuable to our lives to be abstained from, although they do force people to take a stand on and possibly change their attitudes towards their own lives and bodies (Svenaeus 2013 ). However, in the case of pregnancy this impact of medical technology has not only consisted in making pregnancy and birth safer for the mother and child, it also includes an impact on the relationship formed to the embryo–foetus and the risks of instrumentalizing human-reproductive issues. If children are chosen—or, rather, in the case of DS, not chosen—because of their genes instead of being received as persons in potential being, this could have negative effects on the parent–child relationship as such (Habermas 2003 ; Hauskeller 2014 ; Parens 2015 ). This is an important subject for so-called “human enhancement” studies, but a phenomenological analysis of the parent–child relationship and its transformation by way of future medical technologies making it possible to design babies lies beyond the scope of this article.

Conclusions

The phenomenological analysis in the field of abortion ethics proceeds from the embodied perspective of the pregnant woman and from the imagined perspective of the embryo–foetus–new-born-child, informed by medical science and technologies. The main difference between the phenomenological and most pro-choice views on abortion in such an analysis will be that the body of the pregnant woman is not considered as her property, but as an embodied way of being that goes through drastic and significant changes in the process of pregnancy. The main difference between the phenomenological and most pro-life views on abortion will be that the being of the embryo–foetus must be considered from the perspective of the pregnant woman’s life and not simply as a person-in-being taking residence in her body.

The experience of quickening appears to be a strong reason from the phenomenological point of view for setting an upper time limit of legal abortion around week 16 gestational time. In quickening the pregnant woman feels the presence of another human being inside her and this as a rule is not an alienating event, but rather a part and process of a different form of embodied being, in contact with a child to be, which appeals for protection and support. In cases of being able to avoid giving birth to children who will suffer considerably more painful and alienated lives than normal, this responsibility for taking care of the child to be will be transformed into a responsibility to consider and/or have an abortion, also in cases of pregnancies continued beyond the weeks of quickening, or, even, in some cases, beyond the weeks of sentience and viability.

Diagnostic technologies, such as ultrasound imaging and various forms of genetic tests, do not only make it possible to abstain from having children who will suffer considerably more painful and alienated lives than normal, they also change the experience of pregnancy as such. The foetus appears to the pregnant woman and others by way of ultrasound images, videos and sounds, in some cases long before it will make itself known through movements in quickening. This must be taken into consideration in setting upper time limits of legal abortion.

In the case of Down’s syndrome (DS), the early tests by way of the NT procedure, followed up by blood serum and/or amniocentesis, and, in the future, NIPT, already has and probably will lead to less and less children with DS being born. Such a development is ethically problematic for the following reasons: abortions of embryos-foetuses that would have given rise to persons with lives that are not considerably worse than normal according to a phenomenological analysis, stigmatizing effects for the persons who live with DS, and a less tolerant view in general on abnormalities in our society. The last development is a clear indication that medical technologies do not only equip us with more choices regarding what type of children should be born, they also change our perception of what is a normal human life and what a life worth living looks like in the first place.

Acknowledgements

The author would like to thank two anonymous reviewers for very good critical points and productive suggestions that have helped a great deal in improving the arguments found in the article.

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Melinda French Gates: The Enemies of Progress Play Offense. I Want to Help Even the Match.

By Melinda French Gates

Ms. French Gates is a philanthropist and the founder of the charitable organization Pivotal.

Many years ago, I received this piece of advice: “Set your own agenda, or someone else will set it for you.” I’ve carried those words with me ever since.

That’s why, next week, I will leave the Bill & Melinda Gates Foundation , of which I was a co-founder almost 25 years ago, to open a new chapter in my philanthropy. To begin, I am announcing $1 billion in new spending over the next two years for people and organizations working on behalf of women and families around the world, including on reproductive rights in the United States.

In nearly 20 years as an advocate for women and girls, I have learned that there will always be people who say it’s not the right time to talk about gender equality. Not if you want to be relevant. Not if you want to be effective with world leaders (most of them men). The second the global agenda gets crowded, women and girls fall off.

It’s frustrating and shortsighted. Decades of research on economics , well-being and governance make it clear that investing in women and girls benefits everyone. We know that economies with women’s full participation have more room to grow. That women’s political participation is associated with decreased corruption. That peace agreements are more durable when women are involved in writing them. That reducing the time women spend in poor health could add as much as $1 trillion to the global economy by 2040.

And yet, around the world, women are seeing a tremendous upsurge in political violence and other threats to their safety, in conflict zones where rape is used as a tool of war, in Afghanistan where the Taliban takeover has erased 20 years of progress for women and girls, in many low-income countries where the number of acutely malnourished pregnant and breastfeeding women is soaring.

In the United States, maternal mortality rates continue to be unconscionable , with Black and Native American mothers at highest risk. Women in 14 states have lost the right to terminate a pregnancy under almost any circumstances. We remain the only advanced economy without any form of national paid family leave. And the number of teenage girls experiencing suicidal thoughts and persistent feelings of sadness and hopelessness is at a decade high.

Despite the pressing need, only about 2 percent of charitable giving in the United States goes to organizations focused on women and girls, and only about half a percentage point goes to organizations focused on women of color specifically.

When we allow this cause to go so chronically underfunded, we all pay the cost. As shocking as it is to contemplate, my 1-year-old granddaughter may grow up with fewer rights than I had.

Over the past few weeks, as part of the $1 billion in new funding I’m committing to these efforts, I have begun directing new grants through my organization, Pivotal, to groups working in the United States to protect the rights of women and advance their power and influence. These include the National Women’s Law Center, the National Domestic Workers Alliance and the Center for Reproductive Rights.

While I have long focused on improving contraceptive access overseas, in the post-Dobbs era, I now feel compelled to support reproductive rights here at home. For too long, a lack of money has forced organizations fighting for women's rights into a defensive posture while the enemies of progress play offense. I want to help even the match.

I’m also experimenting with novel tactics to bring a wider range of perspectives into philanthropy. Recently, I offered 12 people whose work I admire their own $20 million grant-making fund to distribute as he or she sees fit. That group — which includes the former prime minister of New Zealand, Jacinda Ardern, the athlete and maternal-health advocate Allyson Felix, and an Afghan champion of girls’ education, Shabana Basij-Rasikh — represents a wide range of expertise and experience. I’m eager to see the landscape of funding opportunities through their eyes, and the results their approaches unlock.

In the fall, I will introduce a $250 million initiative focused on improving the mental and physical health of women and girls globally. By issuing an open call to grass-roots organizations beyond the reach of major funders, I hope to lift up groups with personal connections to the issues they work on. People on the front lines should get the attention and investment they deserve, including from me.

As a young woman, I could never have imagined that one day I would be part of an effort like this. Because I have been given this extraordinary opportunity, I am determined to do everything I can to seize it and to set an agenda that helps other women and girls set theirs, too.

Melinda French Gates is a philanthropist and the founder of Pivotal, a charitable, investment and advocacy organization.

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The Ethical and Practical Failings of the Death Penalty

This essay about the death penalty argues that it is fundamentally wrong due to ethical, practical, and systemic issues. It highlights the violation of human rights, the risk of wrongful executions, and the failure of the death penalty to deter crime effectively. Additionally, it points out the significant economic burden it imposes on the judicial system and the deep-seated biases and inequalities in its application. The psychological impact on those involved in its administration is also discussed. The essay concludes that abolishing the death penalty in favor of more humane and effective approaches to justice would uphold the dignity of human life and contribute to a more equitable society.

How it works

One of the most contentious issues in the fields of criminal justice and human rights is still the death penalty. Many contemporary nations are debating the morality, effectiveness, and ramifications of the death penalty despite its historical roots. There are many reasons why the death sentence is inherently immoral, ranging from moral conundrums to pragmatic issues.

Human rights are inherently violated by the death sentence, which is one of the strongest grounds against it. The idea that each and every person has the right to life and dignity is the foundation of human rights.

By its inherent nature, the death penalty completely violates human rights. The state-approved, irreversible act of terminating a life creates a risky precedent that diminishes the value of human life. Furthermore, there is a serious possibility of erroneous executions. Since new information is frequently discovered too late, there is not always a guarantee that someone on death row will remain acquitted. This is evidence that legal systems are imperfect. Due to the death penalty’s irreversible nature, any errors made after an execution made cannot be corrected, leading to an unjust and tragic loss of life.

In addition to the moral arguments, the death penalty fails to serve as an effective deterrent to crime. Numerous studies have shown that the death penalty does not significantly reduce crime rates compared to life imprisonment. The assumption that harsher punishments lead to lower crime rates oversimplifies the complex social, economic, and psychological factors that drive criminal behavior. Instead, a more rehabilitative approach to justice, focusing on prevention, education, and social support, has proven to be more effective in reducing crime in the long term. By addressing the root causes of criminal behavior, society can foster an environment where crime is less likely to occur, rather than relying on the fear of capital punishment.

The economic burden of the death penalty also raises significant concerns. Contrary to popular belief, the process of prosecuting and executing a death sentence is far more costly than sentencing an individual to life imprisonment without parole. The extensive legal proceedings required to ensure a fair trial, including numerous appeals and lengthy trials, place a substantial financial strain on the judicial system. These funds could be better allocated to crime prevention programs, victim support services, and other areas that contribute to the overall well-being of society. By diverting resources away from the costly death penalty process, communities can invest in initiatives that have a more profound and positive impact on public safety and justice.

Furthermore, the application of the death penalty often reveals deep-seated biases and inequalities within the judicial system. Studies have shown that factors such as race, socioeconomic status, and geography can significantly influence who is sentenced to death. Minority groups and those from disadvantaged backgrounds are disproportionately represented on death row, highlighting systemic injustices. This disparity not only undermines the principle of equal justice under the law but also perpetuates cycles of discrimination and inequality. A justice system that claims to be fair and impartial cannot condone a practice that so blatantly reflects and reinforces social biases.

The psychological impact of the death penalty on those involved in its administration also warrants attention. Executioners, prison staff, and even judges and jurors can experience severe emotional and psychological distress as a result of their participation in the process. The act of taking a life, even in a legal context, can lead to long-term mental health issues and moral injury. These often-overlooked consequences further illustrate the pervasive harm caused by capital punishment, extending beyond the individuals directly affected by its implementation.

In conclusion, the death penalty is an inadequate form of punishment in contemporary society due to a number of ethical, practical, and structural problems. It infringes upon fundamental human rights, is a poor deterrent to crime, causes heavy financial costs, and exacerbates social injustices. It also causes psychological damage to those who carry out its implementation. Society may respect human life and strive toward a more just and equitable system for all by doing away with the death penalty and concentrating on more compassionate and successful methods to justice.

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7 Powerful Truths about Abortion and the Definition of a Person

• Dr. Kenneth Boa Author
• Updated May 23, 2024

Abortion is the most controversial ethical issue of our time. It touches on social, political, philosophical, and religious questions, including the relationship between sex and procreation, feminism, the relationship between church and state, contraception, euthanasia, biotechnology and bioethics, the meaning of life, and the meaning of personhood. Let's take a look at abortion from the Bible to the present.

Photo Credit:  Image created using DALL.E 2024  AI technology and subsequently edited and reviewed by our editorial team.

1. Is Abortion Mentioned in the Bible? 

Although the Old Testament does not specifically mention abortion, Judaism historically has generally been opposed to it except to save the life of the mother. More liberal forms of Judaism allow abortion for a variety of reasons.

The New Testament also does not specifically mention abortion, though this should not be construed as approval or permissiveness. The early church absolutely prohibited abortion and compared it to infanticide. Later, Origen followed Aristotle in distinguishing between the unformed and the formed unborn child, arguing that aborting the unformed was immoral but not murder. This view was widely accepted in the medieval church. The Roman Catholic church accepted the medieval view until the late nineteenth century when increased knowledge about fertilization gradually led to its abandonment in favor of recognizing the unborn as human persons from the moment of conception.  Protestant thinking on abortion quickly reverted to the pre-medieval view that all abortions destroyed human lives and were, therefore, always tantamount to murder except when performed to save the mother’s life.

2. What Is the History between Abortion and the Church?

Since abortion was rare, it was not often discussed in the church until the nineteenth century when abortion became more common. The swelling abortion rate led Americans to enact state laws against abortion, reflecting the prevailing cultural abhorrence of abortion and the belief that the unborn were human persons. During the first half of the twentieth century, the abortion rate declined significantly, partly because contraceptive technologies became more efficient, more available, and generally more acceptable.

Despite contraception becoming increasingly common, after World War II abortion rates began rising again, in part because medical technologies made abortion much safer for women. The main reason for the increase in abortions, however, was a dramatic rise in premarital sex among teenagers and young women.

Abortion advocates used so-called “hard cases” to get anti-abortion laws overturned. This culminated in Roe v. Wade (1973), in which the Supreme Court ruled that a Texas law anti-abortion law was unconstitutional.  In the wake of the Roe decision, all laws against abortion were held to be unconstitutional until the 2022 Dobbs decision that sent the issue back to the states. Since then, some states have introduced varying levels of restrictions on abortion while others have removed all restrictions on abortion up to the moment of birth.

Recent abortion debates have made it clear that the main issue is consequence-free sex, not saving women’s lives or their health or defending women from rape. Pro-choice opposition to laws mandating medical care to babies born alive after botched abortions demonstrates this conclusively.

Although not all pro-lifers regard the entire Bible as the infallible word of God (since there are Orthodox Jews and Muslims who are pro-life), within Christianity nearly all pro-lifers accept the orthodox view of the Bible as God’s word, while most pro-choice Christians hold to a more liberal view of the Bible. While some pro-choice Catholics and evangelicals hold a high view of Scripture, they are a small minority. Thus, biblical values (some of which are shared by Muslims, Orthodox Jews, and Mormons) inform the pro-life position, while the pro-choice view is in some respects out of keeping with biblical ethics.

3. What Are the Biblical Ethics of Human Life?

The life of the unborn.

The pro-life argument is actually very simple. Patrick Lee summarizes it in three points:

• Intentionally killing an innocent person always is morally wrong.
• Abortion is the intentional killing of an innocent person.
• Therefore, abortion is always morally wrong.

The only way to attack the argument is to deny one of the premises.

Abortion and the Sixth Commandment

The basic reason for the pro-life view is the Sixth Commandment, “You shall not murder” ( Ex. 20:13 ; Deut. 5:17 ; Matt. 19:18 ; Rom. 13:9 ). In biblical teaching, murder is prohibited because what is killed was created in the image of God . The classic text on this is Genesis 9:6 . This verse affirms that all human beings are made in God’s image, that murder does not include animals (contrary to some abortion and animal rights activists), and that it specifically refers to innocent life since murderers are subject to the death penalty.

Whether or not it is morally right to kill murderers, in biblical ethics it is always morally wrong to kill those who are doing no harm to others. The pro-life position follows directly from this premise. It asserts that it is always morally wrong to kill the unborn except where they pose a danger to the mother’s life.

This brings us to the second premise: Do the unborn qualify as persons? Or is this even the right question?

Photo Credit: ©Getty Images/Violeta Stoimenova

4. How Do We Define Personhood? 

The abortion debate is commonly framed around the personhood of the unborn. Pro-lifers routinely argue that the unborn are persons, while pro-choicers argue that abortion is permissible because the unborn are not persons. Patrick Lee uses the term “person” as the key term in the two premises of his argument against abortion, quoted earlier.

The trouble with making personhood the decisive issue in the abortion debate is that our culture no longer has a consensus view of what personhood is. Some people define personhood in terms of the developed characteristics of self-awareness, individuality, rational thought, the capacity for moral choice, and so forth. Defining personhood in this way virtually guarantees that the unborn will not be considered persons, but arguably six-month-old infants will not qualify as persons either.

Others define personhood as the possession of an individual soul or spirit distinct from the body. The trouble with this way of defining personhood is that there is no unanimity in our society as to whether such things as souls exist, let alone when they become part of the human being.

Given that there is no clear definition of the term “person,” it is best to leave it aside and focus instead on the simpler and more direct argument that the unborn should not be killed because they are human beings . After all, the Bible does not use the word “person” in Genesis 1:26-27 or 9:6 but speaks instead of human beings, ’ Adam , as created in God’s image possessing life that is not be violated. Nowhere in the Bible or in the legal traditions of our civilization is there any suggestion that only some classes of human beings are deserving of life. Thus, all that is necessary to defend the claim that the unborn deserve to have their rights protected by law is to show that they are human beings.

5. Humanity Encompases the Unborn

This, it turns out, is exceedingly easy to defend — which is why many pro-choice advocates keep the discussion on the more debatable concept of personhood. Conception (or, perhaps more narrowly, fertilization) is the first event in the history of the human organism — indeed, the event that constitutes it as a distinct human being. Prior to conception, what exists is an egg, which is genetically and functionally part of the mother’s body, and a sperm, which is organically, genetically, and functionally part of the father’s body. When fertilization is complete, a new organism is conceived, which is genetically distinct from the mother and father and is functionally developing as a distinct organism. Specifically, from the moment of conception what exists is a human organism, a human being, with potential for development, growth, and full realization.

The point here is not merely that the unborn are human. As pro-choice advocates never tire of pointing out, our fingernails are human, but we think nothing of cutting them off and throwing them in the trash. The unborn, from the moment of conception, is not merely human, but a whole human being , distinct from the mother, needing only time and nourishment to develop into a fully functioning adult human person. This is a non-controversial fact of biology that no one seriously denies and which even many people on the pro-choice side freely admit.

Photo Credit: Image created using DALL.E 2024  AI technology and subsequently edited and reviewed by our editorial team.

6. Is Abortion Prohibited by God?

Given that the unborn are human beings from the moment of conception, it follows directly that killing them for any reason other than to save the mother’s life is forbidden by the sixth commandment. And killing is exactly what it is, no matter how much pro-choice try to hide the truth from the public, and perhaps from themselves, by speaking vaguely of “a woman’s right to choose” — without specifying what she is choosing — or euphemistically of a woman’s “reproductive rights” — without acknowledging that once a woman has conceived reproduction has already taken place .

It is unnecessary, and in some respects possibly misleading, to base the pro-life position on the facts concerning fetal development, such as at what stage the unborn can feel pain or at what stage the unborn has a heartbeat. Emphasizing the development of various capacities invites the question of whether the unborn deserves legal protection before those benchmarks of human development. If the unborn are human beings from the moment of conception, then what functions emerge at various stages of gestation after conception is irrelevant to the humanity of the unborn.

7. How Can We Defend the Lives of the Unborn?

Many defenders of the pro-choice position base it on a kind of agnosticism about the moral status of the unborn, arguing that since people disagree on this question the law cannot “impose” the pro-life view of the unborn on the rest of society. Yet if we are unsure whether the unborn are fully human beings, then it is surely wrong to permit people to kill them. Peter Kreeft, a Roman Catholic philosopher, sets forth a “quadrilemma” on the question of whether the fetus is a person:

• It is not a person, and we know that.
• It is a person, and we know that.
• It is a person, and we do not know that.
• It is not a person, and we do not know that.

In case (1), Kreeft argues, “abortion is perfectly permissible,” but we cannot know with certainty that the fetus is not a person. In case (2), “abortion is murder,” because it is knowingly killing a person. In case (3), “abortion is manslaughter,” because it is an act of careless and irresponsible killing. In case (4), even though the fetus is not a person, abortion is “criminal negligence,” because one ought to ascertain whether the fetus is a person before killing it.

Kreeft’s analysis is helpful not only because it is an effective response to the agnostic pro-choice argument but also because it introduces important distinctions regarding the seriousness of abortion in criminal law. The sixth commandment says “You shall not murder,” a general statement that does not distinguish between “first-degree” murder, manslaughter, and criminal negligence. These distinctions, however, are biblical, since the Law of Moses clearly distinguished between cases of killing that were punishable by death, exile, and restitution (e.g., Ex. 21:12-14 , 20-21, 28-29). Thus, it is not necessary for women who procure abortions to be judged as committing murder in the first degree for the pro-life position to be reflected in law. Pro-lifers are not asking for the death penalty for women who have abortions, or even for abortionists. They are asking for reasonable punishments that reflect an understanding of the legal and social difficulties of prosecuting abortion cases (e.g., suspension of physicians’ licenses or possibly prison time for repeated illegal abortions, community service, or other penalties for women who obtain abortions).

Although the argument presented here has used Scripture, the major premise that killing innocent human beings is wrong and should be prohibited by law is defensible even apart from the Bible. The abortion issue shows that Christian values are based on the revelation of God’s will in Scripture but that these values can be defended by appealing to facts and moral principles that people of most religions, or even of no religion, can understand and accept.

RELATED PODCAST:

Bill Maher and Piers Morgan had a controverisal and shocking conversation that even left the Democrats and pro-choicers speechless. 

Photo Credit: Photo Credit: Image created using DALL.E 2024  AI technology and subsequently edited and reviewed by our editorial team.

Kenneth Boa  e quips people to love well (being), learn well (knowing), and live well (doing). He is a writer, teacher, speaker, and mentor and is the President of Reflections Ministries , The Museum of Created Beauty,  and Trinity House Publishers.

Publications by Dr. Boa include Conformed to His Image, Handbook to Prayer, Handbook to Leadership, Faith Has Its Reasons, Rewriting Your Broken Story, Life in the Presence of God, Leverage, and Recalibrate Your Life.

Dr. Boa holds a B.S. from Case Institute of Technology, a Th.M. from Dallas Theological Seminary, a Ph.D. from New York University, and a D.Phil. from the University of Oxford in England.  

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