'Fetal Personhood' Is Religious Right's New Dangerous Word Trap in Abortion Debate
What does it mean to be a person? For the anti-abortion group Personhood USA, a “person” is present from the moment a sperm penetrates an egg, and members are fighting to have their definition encoded into law. Online coaching tools for abortion opponents use the term person interchangeably with human or human being. Are they interchangeable? Does it matter?
Personhood USA is driven by a mission that dates back to Roe v. Wade, when, in the process of legalizing abortion, Supreme Court Justice Harry Blackmun made this comment: “If this suggestion of personhood is established, the appellant's [Roe's] case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the [Fourteenth] Amendment.”
In other words, if an embryo or fetus can be defined legally as a person, abortion could potentially be classified as murder and a host of other legal rights could accrue to the developing fetus. The set of legal arguments that support abortion rights would not disappear but they would shrink. In recent years, Personhood USA and conservative Christian allies have been building case law and regulatory precedents with this goal in mind.
To win, they have to equate personhood with human life. But that’s no easy task.
Robots and Aliens
In the secular philosophical traditions that have long informed our laws, personhood means something more complicated and more interesting than mere human DNA. Philosopher Dan Fincke points to science fiction to illustrate the point:
Think about the movie E.T. If an extraterrestrial comes down to earth and asks to use the phone, we shouldn’t say, You’re not human, so instead of letting you use the phone, we’re just going to eat you. If we are talking to an alien who has self-awareness, makes choices, has complex emotional experiences, plans future projects, has enduring memories, etc.; we recognize we’re talking to another person. Those traits, or some cluster of them, are the decisive features in personhood and yet they’re not conceptually identical with “humanity.”
Science fiction stories like E.T., Star Wars, or Wall-e may evoke our personhood intuitions simply for the purpose of entertainment, but some books and films use science fiction to explore more serious moral conundrums. The movie District 9 extrapolates South Africa’s apartheid policies and explores questions around dignity and compassion for an alien species stranded on earth. House of the Scorpion explores the identity and rights of a child who is the product of cloning. The now classic movie, Blade Runner, which is laden with religious allusions, explores themes of yearning for life and love in robots who are keenly aware of their own pre-programmed mortality.
Dogs and Honey Badgers
Back in the real world, our relationship to other species also prompts conversation about the nature and boundaries of personhood. Last December, Yale University hosted a conference called Personhood Beyond the Human. Bioethicists and other scholars came together to discuss the self-conscious intelligence that can be present to varying degrees in nonhuman species.
Research on the mental life of nonhuman animals was pioneered by ethologist Konrad Lorenz during the years before World War II. As late as the 1960s, children were taught that one hard line between humans and other species was that only humans use tools. Today counter examples, like the astounding escapades of Stoffel the honey badger, go viral on the Internet.
We now know that species like dolphins and great apes have rich mental and emotional lives, with enduring social bonds. People who live closely with companion cats and dogs learn to read their moods and desires and to appreciate their very individual personalities. Activists against vivisection and farm cruelty point out signs of preferences, problem solving, attachments, fear, delight, grief, and depression in animals that are cognitively much simpler than primates. It only makes sense that as knowledge and moral awareness grows, thoughtful and compassionate people are asking: Given what we know about the conscious experience of other species, what are our ethical responsibilities, and what are their rights, and how should this affect biomedical research?
Do Unto Others
Formal research on the mental life of other species may be fairly new, but humanity’s moral and ethical traditions have long recognized that other conscious species merit moral consideration that maps to what they are able to experience and desire. Hence the Buddhist focus on compassion as the central virtue. In the Christian tradition, this concern is expressed by St. Francis of Assisi, "Not to hurt our humble brethren [the animals] is our first duty to them, but to stop there is not enough. We have a higher mission: to be of service to them whenever they require it."
Compassion can be described as empathy in action—the ability to feel with another being, and to use that resonance to guide our behavior. Most known wisdom traditions, whether secular or religious, give voice in some form to the Golden Rule: Do unto others as you would have them do unto you. But in reality, the Golden Rule is a rough proxy for a more challenging imperative that has been called the Platinum Rule: Do unto others as they would have you do unto them. By asking, in this situation what would I want? we can make an educated guess what another person might want from us.
Can They Suffer?
One of the most basic and universal elements of consciousness is the ability to feel pain, and so questions of suffering are central to moral decision-making. As 18th-century philosopher Jeremy Bentham said about moral treatment of animals, "The question is not, can they reason, nor can they talk, but rather, can they suffer?"
It should come as no surprise, then, that in the effort to gain person-rights for the human fetus, conservative activists have focused on the question of fetal pain.
But the leap from fetal pain to fetal personhood is a large one. It is clear, for example, that an early embryo is incapable of experiencing pain, or anything else, for that matter. Conversely, we know that a full-term infant can—although the experience may be very different from that of a human with a more developed nervous system. Between embryo formation and birth lies a fascinating and complicated continuum of development. Conscious experience of pain is different than a withdrawal reflex, and when a fetus transitions from reflex to experience is still an open question.
For those who argue on behalf of fetal personhood, the even larger problem is that in most ethical systems an organism’s ability to feel pain creates only an obligation to minimize pain, not an obligation to extend other rights, even the right to life. Many moral systems that permit the eating of cattle, for example, find the torture of cattle or even indifferent cruelty to be reprehensible. The question of when a budding human begins to experience pain matters morally, but it does not answer the question of fetal personhood or whether/when it is moral to terminate a pregnancy.
One of the strongest secular cases against abortion is called the “future like ours” argument, put forward by philosopher Don Marquis. This argument does not depend on the fetus having the qualities of personhood as a fetus but rather relies on those qualities being present at some future date. Marquis argues, essentially, that the fetus will one day have the capacity to feel joy and love and will then value his or her own existence, just like we do. Because the fetus will become a conscious person, the future wishes of that person-to-be must be part of our moral calculus. Indeed, many secular liberals who support abortion rights believe that we have a moral responsibility to future generations—for example, to leave them a healthy planet.
Even acknowledging that we have some responsibility to future generations doesn’t solve the problem faced by fetal personhood advocates. While we may be quite confident that some persons will exist in the future and they will want a bounty and beauty, just like we do, we have no way to know who those persons will be. The future is always in motion. This means that many potential persons-to-be, defined as unique combinations of human DNA plus environmental factors, will never come to exist. Consider, for example, the babies that will never be born because fertile 13-year-old evangelical girls choose to abstain from sex until they are married. Or think of the many fertilized eggs (more than half!) that simply flush themselves out of the female body rather than attaching and starting to grow. Or think of all of the pregnancies that are averted by headaches.
Let me call again on an illustration by Fincke.
My parents wanted just one more child when they decided to conceive me. My mother miscarried before successfully having me. Then she got a tubal ligation. Had she not miscarried but had the other baby, I would never have existed. Would my mother have morally wronged me? Has she morally wronged a dozen more children she didn’t have? That seems absurd. What’s so morally different then about a woman who has two abortions, then two kids, and then ties her tubes and another who has two kids and then ties her tubes? The net result is the same. They both create two people and prevent a dozen or so.
In my own case, I contracted a disease called toxoplasmosis during the first trimester of a much wanted pregnancy. The toxoplasmosis parasite can cause sensory impairments and brain lesions in a developing fetus, so my husband and I aborted and then began a healthy pregnancy three months later. Our elder daughter could not exist in the alternate universe where that first pregnancy comes to term.
No ethical system—even a religious tradition as pro-birth as Catholicism or ultra-Orthodox Judaism—claims that we have a moral responsibility to maximize the number of potential persons that grow into actual persons. That leaves us all in a messy middle ground in which we choose to foster the emergence of some potential persons and decline others. The existence of a possible “future like ours,” offers little guidance about when to continue a pregnancy and when to terminate one. And so we fight.
Our disagreements may well be insurmountable because they ultimately come down to deeply personal and spiritual individual judgments about when human life becomes uniquely valuable and whether childbearing should be a thoughtful, intentional process. Is it most moral to space childbearing to give kids the best possible shot in life? Or is it more moral to leave these questions in the hands of God? If power and responsibility are two sides of the same coin, what responsibilities accompany our power to begin a new life or to end one? For each of us, the answers to these questions are tangled up with much bigger questions about the nature of reality and the meaning of life—questions that every person is entitled to decide to the best of his or her ability.
The quest for fetal personhood is sleight of hand: theology draped with a thin silk scarf of logic and legalese. Those on stage hope the rest of us won’t notice that beneath the scarf they have substituted one concept for another. This sleight of hand is dangerous because the illusionists are willing to degrade and distort one of humanity’s most sacred and longstanding moral understandings—that the lived experience of other beings guides our moral consideration—and the generations of civil and human rights law that have grown out of this fundamental agreement.
Fetal personhood co-opts and paradoxically violates empathy, diverting compassion onto imaginary and potential persons and away from actual persons, women who are trying to take care of their health, their lives and their families. It also co-opts and violates American civil law—the right of citizens to life, liberty and the pursuit of happiness, including the fundamental right to freedom from a church-state apparatus that imposes government-sanctioned theologies via the arm of the law.
Ultimately, the quest for female personhood is about the right of every woman to answer moral questions in keeping with her own conscience and spiritual priorities, her dreams, her responsibilities and her loves.
Thank you to Dan Fincke, who provided early input on this topic and responded to my questions with a thoughtful analysis from his vantage in the field of philosophy.