Tuesday, November 01, 2005

Rights for the Fetus


I was thinking about the euphemisms we create to obscure the real issues. For example, homophobia is used to label anyone who has not wholeheartedly adopted the homosexual agenda, even though that word is not even defined by the mental health industry. Progressive is used by those who wish that their social views were more widely accepted, implying that those of us who don't want to move in their direction are outdated or something. Pro Life and Pro Choice are used to define opposite camps of opinion, even though pretty much all of us think we are both pro choice and pro life.


When I was studying in law school we covered a section in our Constitutional Law class about the right to privacy, automony over one's body, and abortion. The professor was clearly supportive of the reasoning behind Roe vs. Wade and spent most of the 3 days lecturing in support of that line of thinking.

Then, as the discussion on this section was winding down, he added almost as an afterthought, "Well class, what about the fetus? Does the fetus have any rights here?" No one ventured to offer anything in support of the fetus. There is the mentality in school that the professor's vast reserves of wisdom and knowledge are untouchable by the stilted understanding of mere fledgling students.

I could not let this opportunity pass by without something being said for the rights of the unborn person! Suddenly I had a flash of insight and offered roughly the points explained below. When I had finished speaking, the professor started to say something in rebuttal of my arguments, but then stopped himself as he thought about the answer to his rebuttal. He repeated this start-stop process several times, obviously conducting an internal dialogue regarding my points. In the end, he threw his hands up in the air and stated, "Well class, what do you think? Does the fetus win here?" Again, no response from the class. I felt like I had made a good argument in support of favoring the right to life of the fetus over the right to abortion by the woman.

This is a summary of my points that I made in class in support of rights for the fetus:

Well-Founded Constitutional Principles

Legalized abortion is based on the premise that a woman has the right to autonomy over her own body, which comes from her Constitutional right to privacy. The Constitution contains concepts that are considered “well-founded” or “long-standing,” which are those that were contemplated by the original drafters and expressly stated in the Constitution. The Due Process clause in the Fifth Amendment is one of these. It prohibits the federal government (and States, via the Fourteenth Amendment) from denying Persons their Life, Liberty or Property without due process of law and equal protection under the law.

Judicially Created Constitutional Principles

The “right to privacy” is not expressly stated in the Constitution. It is not among the well-founded or long-standing Constitutional concepts. Rather, it is a concept that has developed over time through judicial interpretation of the Constitution.


At the core of the abortion question is whether an unborn human is a “Person.” Tied in with this question is the concept of viability. A viable fetus is more likely to be recognized as a “Person.” Therefore, it is more difficult to justify aborting a viable unborn human compared with aborting a fetus that has not yet reached viability in its development. But viability is not a given, static point of development, especially considering the ever increasing refinements in medical technology.

In considering whether a fetus should be recognized as a “Person” we must first know how that concept is defined. A Person is first a human being. Are any other qualifiers necessary to be legally considered a Person?

Consider some of the reasons why it is argued a fetus should not be considered a Person. It isn't viable. It isn’t self-aware. It doesn’t have the capacity to appreciate the quality of life. It is not capable of self-determination or self- actualization. None of these reasons by themselves are sufficient to be considered a required qualifier to support the legal concept of Person.


Viability - the capacity to exist separate from the mother’s womb - is changing with advances in medical technology. It is not too difficult to imagine the development of a human being from conception to “birth” occurring completely outside the mother’s body. Some would argue that a fetus is not viable if it requires the intervention of life-support devices and medications, but this is not consistent with our other concepts of Personhood. Consider the stroke or heart attack patient whose life depends on medical intervention. That person is not deemed less than a Person because of his or her medical needs.

Appreciation of the Quality of Life

Incapacity to appreciate the quality of life. This same factor arises in medical cases where a person is rendered unconscious or comatose. It also arises in persons who are born extremely deformed and mentally deficient. It even applies to completely healthy newborns during the first couple of years of life. We don’t withdraw the status of Person from such people for this reason.


Same argument as above. There are many people who are considered to be fully Persons who are not completely capable of self-awareness.


This applies to the same category as described above – the new-born or the physically and mentally handicapped. It also applies to every child who hasn’t yet arrived to his or her teen years. There are many, many people who are considered to be fully Persons who are not capable of self-determination or self-actualization.

The Humanity of the Fetus

Still, we are faced with the question of whether a fetus is a Person. Is it a human being? It can be positively proved that a fetus is made of human tissues, and not dog, cat, pig, horse, whale or any other kind of mammalian tissue. The fetus – even if not yet considered fully human – is destined without doubt to become human. Through blood and genetic testing, it can be proved to perfect certainty that the fetus is of human origin and with nearly perfect certainty the identity of the persons whose sexual union produced the fetus.

Still, for argument sake, suppose the fetus is not yet accepted to actually or fully be a Person – that it possesses merely a portion of or the potential for Personhood. When considering the question of abortion, what we are faced with is a balancing test between two Constitutional rights. The right of the mother, a recognized, legal Person, to privacy and autonomy over her body, and the right of the fetus, “nearly or potentially a Person”, to his or her very life. How do we decide which of these rights should take precedent?

A Contest of Conflicting Rights

The right to life is a long-standing, well-founded Constitutional right held by Persons. The right to privacy and autonomy is a newer, judicially created Constitutional right. If we must sacrifice one of these rights to the other, logic dictates that the newer, judicially created right yield to the long-standing, well-founded right.

Consider the consequences of this analysis.

1) If the mother, a Person, must give up her right to privacy and autonomy, the harm done to her is a measure of emotional and physical pain from childbirth, even a remote risk of losing her own life. Most women recover from the emotional and physical pains of childbirth. Medical technology has reduced the risk of death from childbirth to a very low occurance. The question of whether the child born to her would be raised in a wanting and caring atmosphere is answered by adoption. There are many capable, financially and emotionally secure people who earnestly want to adopt babies.

2) If the fetus, a near-Person, must give up her right to life, then the harm done to her is non-existence. Should we, as a society, force a potential-Person to give up her long-standing and well-founded Constitutional right to life so that a legal Person may enjoy her newer, judicially created Constitutional right to privacy and autonomy?

It comes down to whether we as a society wish to promote the lesser, judicially created right of privacy and autonomy over the long-standing, well-founded right to enjoyment of life. It comes down to whether we wish to promote the certain death of a potential Person over the inconvenience of a legal Person.

Other Constitutional Rights at Stake

Mention is rarely made of the rights or desires of the father of the fetus. The Constitution also guarantees the right of Persons to contract and associate. This is also a well-founded and long-standing right guaranteed by the Constitution. This right includes the right to enjoy family life. The father is considered financially responsible for the welfare of children he helps create through an interpretation of the right to contract. When a man impregnates a woman, he is considered to have entered into a binding contract with his offspring to provide a level of material welfare during his or her childhood. Should the mother’s exercise of her newer, judicially created right to enjoy privacy and autonomy through obtaining an abortion override both the father’s and the fetus’ long-standing, well-founded contractual right to enjoy family life?


By this analysis, I believe that logic and reason compel upholding the right of the fetus to enjoy life in the abortion question. Abortion does great harm to our Constitution, to the concept of family integrity and to the concept of humanity.


Catbird S. Affectations said...

Thoughtful post. Thank you!

Tracy M said...

Thank you for making what is often perceived as an ambiguous and difficult topic entirely clear.

edward the blogger said...

You missed another fundamental right - liberty. Should a mother's womb be held hostage for 9 months to provide life to another person? Isn't that the basis of slavery? Does it matter if slavery is a temporary condition? Does it matter if this other person (fetus in this case) was initially invited?

Would YOU use force (physical restraint for up to 9 months) to prevent a woman from having an abortion? If you don't have this moral right can you grant it to government?

There is no easy answer. I think the LDS church has it correct - The choice for abortion is between a woman, her God, and her doctor.

Madelene said...

"Should a mother's womb be held hostage for 9 months to provide life to another person? Isn't that the basis of slavery? Does it matter if slavery is a temporary condition?"

This comparison is tenuous at best.
A slave cannot choose it's master. He (or she) also has no say in whether or not he can "abort" his owner.
A mother has a right to choose: she chooses whether or not to have sex. She can also choose whether or not to abort her fetus. (The issue of rape in abortion cases is another debate--but still it's not the fetus' fault that the woman is pregnant, and thus the slave analogy still falls short)
A slave is at the mercy of the slaveowner.
A fetus is a helpless, vunerable lifeform, who is completely dependent on the mother for life, and certainly has no power to take anyone "hostage."
A slave owner (the fetus under your analogy) has the power to control the life of the slave.
Yet it is the mother, not the fetus, who holds the power to first create the life, and then to destroy it. She can, if she wishes, choose to carry it to full term. This is a noble sacrifice, yes. But it is not "enslavement."

Even if a mother really were a "slave" to her baby--a ridiculous thought, then is such a slave justified in killing her master, because she does not want to endure 9 months of "bondage?" I am no lawyer, but I think it would be very hard to justify this murder in any court of law. I'm sorry, but it doesn't make sense. Freedom is important. But it's pretty hard to practice that freedom if you're dead.
Also, if my freedom comes at the price of someone else's freedom, whose freedom is more important? Difficult questions, which your analogy of slavery just skips right over.
I know that I sure am glad that my mother didn't call the police when I, as an "evil" little fetus took her womb hostage, and refused to give it up until I "forced" her call me her daughter.

There are a lot of hurtful, stupid, wrong and aweful things that we do to eachother. It's a shame when we have to resort to blaming fetuses for our troubles.

Vancouver Barefoot said...


Would you use physical restraint to prevent a mother from killing her children? I personally would, and the law certainly would.

Would you force a mother (or a father) to be in 'slavery' to their children during the first 18 years of their children's lives? We certainly do just that through enforcement of child abandonment laws and child support payment laws.

Its not an issue of slavery, its an issue of responsibility and of protecting the innocent.