While we are waiting for the SCOTUS decision on the Dobbs v. Jackson Women’s Health Organization case in Mississippi, we are seeing more discussion on the ethics of abortion. Ezra Klein and Kate Greasley give one of the most thought-provoking discourses I have heard in some time. On the May 20th episode of Ezra Klein’s New York Times podcast, on many fronts Klein queries Greasley, a law professor at the University of Oxford, and the author of Arguments About Abortion: Personhood, Morality, and Law and co-author of Abortion Rights: For and Against.
The Core Question
In their discussion, Klein summarizes Greasley’s argument that “the core question…overriding everything else at the heart of the abortion debate, is whether, or when, a fetus becomes a person.”
On the anti-abortion side, the pending Mississippi case will rule on the constitutionality of a 2018 state law that bans most abortions before viability, after the first 15 weeks of pregnancy. Texas law now declares life begins with a fetal heartbeat. The new Oklahoma law holds the position that life begins at fertilization. Do each of these different positions contend it constellates ‘the’ moment a person becomes a person, a being with the same value and moral status as a person who is already born, or what could be called a ‘born’ person’?
On the other side, what is the abortion rights movement’s official stand on when a person becomes a person? Cornerstone positions of the abortion rights contingent have staunchly included bodily autonomy, sexual equality and the right to choose one’s course in life. However, the movement has not come out clearly on its stance on personhood.
As we are likely on the precipice of Roe v. Wade being dismantled and opening every state to determine the answer to this question and the legality of abortion, I have been musing on whether it is time for the abortion rights movement to include its personhood stand in its framing and messaging, just as the anti-abortion faction does. Let’s explore.
Stances on Personhood
In her articulate Ms. piece, “’What Is ‘Personhood’? The Ethics Question That Needs a Closer Look in Abortion Debates,” Nancy Jecker lays out three common views of personhood. The first view “holds that fetuses qualify as persons from the moment of conception.” It means that the embryo, zygote and all developmental phases after that hold equal moral status to born persons. In effect, it makes abortion a homicide. In this case, clearly bodily autonomy, sexual equality and the right to chart one’s life do not morally outweigh the taking of a ‘person’s’ life, and as Greasley points out, these positions “struggle to prevail.”
This position also puts IVF and miscarriage arenas on troubled ground. Will IVF embryo destruction constitute homicide, and if so, how to determine punishment by law? At what point will miscarriages be considered homicide, thus punishable by law? The conception threshold position clearly opens a boatload of difficult moral, ethical and legal issues.
A second view “regards personhood as arising at some point after conception and prior to birth.” This too has its problems for the abortion rights movement if it takes this position. Greasley makes the heap example to illustrate this. Say you start with a grain of sand, and continue to add one grain at a time, there will come a time when it becomes a heap. But at what specific point is it definitively a heap? At the millionth grain mark? Why not the millionth and one mark? Greasley points out there is no “nonarbitrarily identifiable moment” when the non-heap becomes a heap. The same goes for when the evolving being becomes a person. The heap idea also breaks down at points of conception. Is it a person when the sperm penetrates the egg? Why? When it becomes a zygote? Why? There is no rational answer.
A third view “maintains that personhood begins at birth or shortly thereafter.” This position can be more easily argued as the threshold of personhood. A few points Greasley expresses why includes that birth is a highly visible event, it has “social salience” and is when we begin to “exercise our agency unmediated by another person’s body.”
Greasley also points out how we already often give more value and moral status to a born person. As a hypothetical example, say there are five frozen embryos and one baby in a burning hospital, and you could successfully save the embryos or the baby, not both. If the embryo is a person and has the same moral status as the infant, the five embryo ‘persons’ – five lives over one, should be saved. But what would happen in real life? We’d save the infant.
This idea goes way back in time. Exodus in the Bible does not express that the fetus and a person have equivalent moral value and status. As Melanie Holmes points out in The Female Assumption, “The Bible has passages that refer to the death of a fetus. One specifically differentiates between the loss of a man’s wife from the loss of a fetus; if someone caused the loss of a man’s wife, this was punishable with ‘a life for a life,’ while cause of a miscarriage was punishable with a fine” (Exodus 21:22:25). To Greasley, this seems “to make a very powerful statement about the comparative value of fetal life versus personal life;” the person has greater moral value and status than the fetus.
An Abortion Rights Movement’s Stance to Take
As we may soon be faced with the states having the power to decide, it will be especially important to fight for abortion rights in states that do not have laws yet (e.g., trigger laws) and those that have not made their legal direction clear. To do this more strongly, the abortion rights movement may be wise not to ignore taking a public ethical stance and go head-to-head with the anti-abortion faction on personhood (including how faith-based laws violate the separation of church and state) as part of its framing and messaging, and squarely put it in the spotlight. I’d choose the third position above, specifically: the fetus is an evolving being that has value, and that value increases over the course of the pregnancy, but it becomes a person and holds equal value and moral status to a born person at the time of its own birth.
This position leaves it open for states to decide positions and laws that allow for point(s) at which abortion would not be acceptable, not because it is the point at which the fetus is a person, but that the fetus has reached a level of moral value the citizens of that state believe abortion should not be allowed. It also leaves open the possibility for states to make abortion to be legal at any time during the pregnancy. Overall, this stance means that the answer to the ethical question of whether or when a fetus becomes a person, to both, the abortion rights movement would answer no.
