II. CONTEMPORARY ETHICAL AND LEGAL ASPECTS: A. ETHICAL PERSPECTIVES

Abortion is widely regarded as one of the most intractable problems in bioethics. It is certainly true that few issues in bioethics have inspired as much discussion, debate, and open conflict as abortion, in part because the abortion controversy, unlike many others in ethics, has not been limited to scholars and practitioners, but has been engaged on numerous fronts in the United States. Churches and religious organizations, political office holders and candidates, the courts, and the general public have all taken a stand on abortion. In the decades since the U.S. Supreme Court, in its historic 1973 Roe v. Wade decision, effectively legalized abortion through the second trimester of pregnancy, the conflict—political, legal, social, and ethical—has not abated.

Another reason for the intractability of the abortion issue is that the views held by critics and defenders of abortion often occupy extremes. At one extreme, abortion opponents defend an absolute prohibition on abortion, calling abortion nothing less than the murder of an innocent person. At the other extreme are those who defend a woman's absolute right to abortion on demand at any time during pregnancy. Both sides engage in rhetoric and hyper-bole; abortion opponents call themselves "pro-life," implying that their opponents are anti-life, while abortion rights supporters call themselves "pro-choice," suggesting that anti-abortionists oppose personal freedom and choice. When the battle lines are largely ideological, as they are in the abortion conflict, there is little room for rational argument. The result is that rather than search for a middle ground, both sides of the conflict have simply dug their heels in deeper.

An additional source of difficulty in reaching agreement about abortion is that the anti-abortion movement in the United States has been led primarily by the Roman Catholic church and fundamentalist Protestants, who base their opposition to abortion on fundamental religious convictions. If it is impossible to argue rationally for or against such convictions, it is no less difficult to argue about an ethical position that is deeply rooted in them.

Finally, the abortion problem is unusually difficult because the fetus is significantly unlike other entities of moral concern, and because the relationship between a fetus and a pregnant woman is unique, in many ways, among human relationships. The moral status of the fetus is itself a highly contested matter, such that the general moral principles that can be appealed to in other areas of human conduct and conflict do not fit cleanly into the abortion picture. Additionally, because the status of the fetus is at issue, abortion can be as much a metaphysical problem as a moral one.

The contemporary moral controversy over abortion focuses on three central issues: the moral status of the embryo or fetus, which many ethicists contend hinges on the ontological status of embryonic and fetal life; the rights conflict between pregnant women and their fetuses; and consequentialist arguments that weigh the potential for harm to women as a result of restricting or abolishing abortion against the negative consequences of terminating fetal or embryonic life.

Ontological and Moral Status of the Fetus

The question of the ontological status of the fetus can be teased apart from the question of moral status, but in the abortion debate, fetal personhood and the possession of moral rights are often assumed to go hand in hand. The term person, however, is ambiguous, having a legal, a descriptive, and a normative sense. To be a legal person is simply to possess legal rights. In Roe v. Wade (1973), the Supreme Court held that fetuses are not persons as defined by the 14th Amendment of the Constitution, but declined to offer a positive thesis on personhood, acknowledging the difficulty of doing so. "We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer" (Roe v. Wade, 1973). To say that something is a descriptive person is just to say that it satisfies certain criteria of personhood, such as species membership. The claim that a fetus is a person in this sense does nothing to justify the claim that killing a fetus is morally wrong unless the fetus also qualifies as a person in the normative sense. Being a person normatively speaking means being a bearer of moral rights, including the right to life. The crucial question of fetal or embryonic personhood, as it relates to abortion, then, is whether and when the genetically human, living entity resulting from the fertilization of an ovum by a spermatozoon is a normative person, a possessor of rights. There is, however, no more consensus on the proper criteria for personhood, and whether or not fetuses can satisfy these criteria, than there is on abortion.

At one extreme of the personhood debate is the position that personhood begins at fertilization, so even very early embryos, composed of only a few cells, are persons. At the other extreme is the view that personhood does not begin until birth or even later, and so no fetus, and perhaps no infant, qualifies as a person. Between the two extremes, there are a multitude of possibilities.

One approach to personhood is the developmental view, which denies that a bright line can be drawn at any particular point in natural development when the fetus acquires moral standing. The developmental view hinges on the continuity of fetal development, and the difficulty of non-arbitrarily picking out properties that qualify some fetuses, but not others, as persons. Since infants are generally regarded as persons with a right to life, and the difference between a late term fetus and a neonate—particularly in the case of viable premature infants—is merely a matter of location, it appears that in the continuous process of embryonic and fetal development, there is no non-arbitrary place to draw a line where personhood begins. This view is in line with the intuition, shared by many on both sides of the abortion conflict, that fetal life becomes increasingly important as gestation continues, but that it is impossible to say with certainty when, exactly, a fetus becomes a person. The inherent vagueness of the developmental view is an obstacle to translating it into practical moral guidelines or public policies, however.

The potentiality view advances conception or fertilization as the beginning of personhood because it is the fertilized ovum, not its constituent gametes, that is considered to have the potential to develop into a human being with full moral status. This can be criticized in two ways. First, it may be argued that even gametes do have the potential to become human persons. Second, as a number of critics of the potentiality criterion have observed, having the potential to become a person is not the same as being one, and it is being a person that confers moral status and rights. As Judith Jarvis Thomson noted, "A newly fertilized ovum, a newly implanted clump of cells, is no more a person than an acorn is an oak tree" (Thomson, 1971, p. 199). In Roe v. Wade, the Court located fetal viability as a line of demarcation, the point after which the state may have a compelling interest in protecting fetal life. Although viability is not a specific moment in the continuum of fetal development, it occurs at approximately twenty-four to twenty-eight weeks gestation, when a number of other significant developmental markers have been achieved, and is the point at which, given proper support, a fetus can potentially survive outside the womb, independently of its mother. It has taken on significance as a convenient, relatively identifiable and verifiable turning point in fetal development, when personhood plausibly begins. Fetal viability is to some extent dependent on technology—premature neonates often need considerable medical support to survive. As technological advances in neonatal care occur, it is possible that the point at which a fetus is viable may change. Some critics of the viability standard claim that personhood ought not be contingent on external facts about the state of medical technology, and therefore cannot stand as a proper criterion for personhood.

As technology has provided a better understanding of the different stages of embryonic and fetal development, criteria such as implantation (when the conceptus becomes imbedded in the uterine lining), the appearance of external human form, and the presence of detectable brainwave activity have all been advanced as criteria for personhood and rights. Traditional criteria for fetal personhood include animation, when fetal movement first occurs, and quickening, the time at which a pregnant woman first feels fetal movement. Early Christian authors talked about ensoulment, the time at which the embryo or fetus is imbued with a soul.

Species membership, or genetic humanity, is the most lenient criterion for personhood, and the most easily verifiable. According to this definition of personhood, any entity conceived of human parents is a member of the human species, and is therefore a person. John T. Noonan, writing from a Catholic perspective, argues that the fetus acquires personhood at the moment of conception, when it receives from its parents the human genetic code (Noonan). The genetic humanity standard can be regarded as both too broad and too restrictive, however. It is too broad because it implies that any living entity with the human genetic code qualifies as a human life worthy of protection. Cancer cells, sperm, and ova all have a human genetic code, and on the least restrictive definition of genetic humanity, such cells would have a right to life, implying that if abortion is impermissible, then so is contraception and chemotherapy. Ethicists who advance a genetic humanity view generally exclude from personhood cells that lack the potential to become human beings, combining a genetic humanity standard with a potentiality principle. The genetic humanity standard can also be regarded as too restrictive because it excludes from the possibility of personhood all nonhuman beings, including some that may warrant the moral status of rights-bearers.

The philosopher Mary Anne Warren argues for a very strict psychological standard of personhood, defining a person as "a full-fledged member of the moral community" (Warren, 1973, p. 347). Genetic humanity alone isn't sufficient for personhood, according to Warren, so not all human beings are members of the moral community. Warren proposes a set of cognitive criteria that, it is claimed, everyone can and does agree are central to the concept of personhood: consciousness, the developed capacity for reasoning and problem-solving, self-motivated activity, the capacity to communicate, and self-awareness. Beings that satisfy some or all of these criteria are people with a moral claim on us, whether they are human or not, for just as some human beings are not people, "there may well be people who are not human beings" (Warren, 1973, p. 348). Membership in the moral community requires the capacity for moral participation, in Warren's view; it would be absurd to ascribe moral obligations and responsibilities to an entity that cannot satisfy any of the cognitive or psychological criteria for moral personhood, and it is equally absurd to ascribe full moral rights to such a being. It is obvious that no fetus can satisfy any of these criteria, and it is equally obvious, Warren argues, that anything that fails to satisfy any of these criteria cannot be a person. A fully developed fetus is no more like a person than a newborn guppy, and cannot have a right to life sufficient to override a woman's right to have an abortion at any stage of pregnancy.

Critics were quick to point out that Warren's standard of personhood could not be met by infants, nor many children and adults with serious cognitive deficits, and thus would problematically justify not only abortion, but infanticide and nonvoluntary euthanasia as well. Warren responded to such criticism by allowing that although a newborn infant is not a person with a right to life, and infanticide is not murder, there are other, utilitarian reasons for the impermissibility of infanticide. Infanticide is wrong for the same reason it is wrong to destroy great works of art or natural resources, because destroying these things deprives people of a great deal of pleasure. Moreover, most people value infants, even if their own parents do not, and would prefer that they not be destroyed. These considerations are not sufficient to override a pregnant woman's right to freedom, happiness, and self-determination, nor her right to an abortion at any stage of pregnancy, Warren claims, but the moment of birth marks the point at which the infant's continued life no longer violates any of its mother's rights, and is thus the point at which its mother no longer has the right to determine its fate. Birth is also morally significant "because it permits the establishment of direct social relationships between the infant and other members of society" (Warren, 1985, p. 6). Thus, although an infant may lack the intrinsic properties that ground a right to life, "its emergence into the social world makes it appropriate to treat it as if it had such a right" (Warren, 1989, p. 56).

While Warren has been accused of offering an ad hoc solution to the problem of infanticide, Michael Tooley argues that neither abortion nor infanticide is intrinsically wrong or undesirable, and indeed, "in the vast majority of cases in which infanticide is desirable … there is excellent reason to believe that infanticide is morally permissible" (Tooley, 1985, p. 14). Tooley's argument is that personhood requires nothing less than self-consciousness, and "An organism possesses a serious right to life only if it possesses the concept of a self as a continuing subject of experiences and other mental states, and believes that it is itself such a continuing entity" (Tooley, 1972, p. 315). Tooley and Warren both explicitly reject the view that the mere potential to become a person gives the fetus any moral standing.

Philosopher Don Marquis attempts to resolve the personhood standoff by starting with an unproblematic assumption: It is seriously morally wrong to kill an adult human being. Marquis then identifies the natural property that adults have that makes killing them wrong. If the same property is found to belong to fetuses, Marquis argues, it must follow that abortion is also seriously morally wrong. Marquis concludes that what makes killing wrong is that murder deprives its victim of a life and future that is valuable. The victim of a murder is deprived of all the experiences, activities, projects, and enjoyments that would have constituted his or her future, deprived of all that he or she values, or would have come to value, in life. The loss of that valuable future, of what Marquis calls a "future like ours," is ultimately what makes killing wrong. It is also what makes abortion morally wrong, Marquis argues, because fetuses have futures of value. "The future of a standard fetus includes a set of experiences, projects, activities, and such which are identical with the futures of adult human beings and are identical with the futures of young children" (Marquis, p. 192).

Marquis's future-like-ours account implies that it is seriously wrong to kill any being with a future of value—it is non-speciesist in that it does not claim that only human life has value or worth. Rather, like some personhood theories, Marquis's theory leaves open the possibility that other species, if they share the property of having a valuable future, have the same right to life that a human being has, and that killing members of other species would therefore be seriously morally wrong. Marquis offers no account of what a future like ours must look like, or what shared properties of an adult human future make it valuable. This point has been a focus of attack for critics, like David Boonin (see below), Jeffrey Reiman, and Peter K. McInerney, who claim that fetuses do not, indeed cannot, have futures like ours.

Marquis's future-like-ours theory, in opposition to other pro-life accounts, is compatible with the permissibility of euthanasia because it is only the loss of a valuable future—not merely the loss of a life—that makes killing wrong. The future-like-ours theory also accounts for the basic intuition that it is seriously wrong to kill young children and infants, for it is presumed they have futures of value. Personhood theories that advance psychological criteria do not straightforwardly account for the intuition or belief that killing infants and children is morally wrong, and must make appeal to other principles, such as social utility, to account for its wrongness. Appeals to social utility, however, cannot explain the wrongness of killing those who are unwanted or unnecessary.

Marquis's critics point out that he fails to provide an argument for why a fetus that is incapable of valuing its own future should count as a being that can suffer a morally relevant loss of its future. The philosopher David Boonin develops an alternative future-like-ours theory that refutes the claim that every fetus has a right to life, and that abortion is in typical cases morally impermissible, on terms that critics of abortion, like Marquis, can and do accept. Boonin argues that a fetus acquires a right to life only at the point in fetal development when organized cortical brain activity is present. The "cortical criterion" is the only morally relevant criterion for moral standing and a right to life, Boonin argues, because organized cortical activity is what makes it possible to have a future like ours. "We have a future-likeours only because we have a brain which will enable us to enjoy, in the future, the kinds of conscious experiences that make our lives distinctively valuable to us" (Boonin, p. 126). Boonin's theory, like Marquis's, identifies a natural property that fetuses possess that makes killing them morally wrong. But while Marquis's future-like-ours property broadly applies equally to all fetuses and embryos, Boonin's cortical criterion narrows the category of beings with a right to life to those with a developed capacity for conscious desires. "It is because these individuals currently have desires about their futures that our desires about how to behave are not the only ones that are morally relevant" (p. 73). Thus, Boonin's theory does not claim, as some personhood theories do, that no fetus ever has a right to life, but only that this right does not exist from the moment of conception, and he concludes that if, as Marquis proposes, depriving a fetus of a future like ours is the wrong-making feature of abortion, then "abortion in typical circumstances is permissible," because the typically aborted fetus lacks a future like ours (p. 129).

Marquis contends that a desire-based account of the wrongness of killing cannot explain why it is morally wrong to kill individuals who have no desire to live, such as suicidal teenagers, the sleeping, and the unconscious. Any theory in which having a valuable future depends upon actually desiring that one's life continue fails to adequately account for the basic intuition that killing beings who do not occurrently value their own futures is seriously morally wrong. The value of life, Marquis argues, is not secondary to our desire for it. If it were, a mere reordering of desires could make killing morally right. The fact that a fetus does not desire the continuation of its own life does not imply that its future has no value—its future is ultimately valuable to it because it will be valuable to it in the future.

Boonin proposes a modified future like ours principle that can account for the wrongness of killing in Marquis's counterexamples, however, because it does not depend on occurrent desiring. In Boonin's modified future-like-ours principle, present ideal dispositional desires—desires an individual would have, given perfect conditions such as rationality, consciousness, and ideal circumstances—account for that being having a valuable future (p. 73). It is only the possession of actual dispositional desires, however, and not the mere capacity for such desires in the future that has moral relevance, Boonin argues. Consequently, a preconscious fetus does not have the same moral standing, or the same right to life, as a conscious late term fetus, an infant, a child, or an adult. If Boonin's cortical criterion is accepted, the vast majority of abortions, which take place well before the point at which fetuses can form conscious desires, are morally permissible.

A looser cognitive criterion for personhood is adopted by Baruch Brody, who appeals to the symmetry between the development of a functioning brain as the beginning of fetal humanity and the cessation of brain function as the definition of death, or the end of humanity. That is, the property whose acquisition confers the right to life in the first place is the same property that, when permanently lost, entails the loss of a right to life. That property is the possession of a functioning brain. If the brain death theory is correct, Brody concludes, a fetus becomes a human being about six weeks after fertilization, when it has a functioning brain. After that point, abortions, except under unusual circumstances, are morally impermissible. Brody's is a significantly looser cognitive criterion than Boonin's "organized cortical activity" criterion because it makes fetal humanity dependent on the presence of early brain function which is not sufficiently organized to support consciousness. A difficulty for Brody's theory is that determining when brain death has occurred may be nearly as difficult as determining when personhood begins. Brain death has proved notoriously difficult to ascertain because detectable electrical activity can continue in a brain that has ceased meaningful functioning. One study shows that at least 20 percent of "brain dead" patients continued to exhibit electrical activity on electroencephalograms, some of it compatible with function (Truog, p. 161). The symmetry Brody appeals to is thus elusive—it may be no easier to define when personhood ends than it is to define when it begins.

Both proponents and opponents of abortion believe that settling the abortion controversy requires settling the question of personhood. While there is room for agreement in positions like Boonin's, Brody's, and even Marquis's, at either extreme standards of personhood like Noonan's and Warren's are incommensurable, leading some to question the utility of defining personhood as a route to resolving the abortion conflict. So long as the fetus's moral standing is believed to depend on fetal personhood, however, the question of personhood will not disappear from the abortion debate.

Rights Conflicts and Abortion

Most opposition to abortion is grounded in two assumptions: the first is the moral personhood and right to life of the fetus; the second assumption is that, in a conflict of rights, the right to life must trump a woman's right to privacy, choice, and bodily autonomy. Many pro-choice arguments ignore the second assumption—perhaps because it seems intuitively implausible that any other right could outweigh a right to life—and focus solely on the first assumption, either offering support for the claim that fetal personhood occurs substantially later in fetal development than conception, or arguing that the criteria for moral personhood can never be met by a fetus. Neither proposition is acceptable or defensible to abortion opponents for whom it is an article of faith that a fetus has a right to life. Thomson puts forth an argument that grants, for the sake of argument, fetal personhood from conception, but challenges the second pro-life assumption that the right to life always overrides other rights.

Thomson's argument employs an analogy that has engendered controversy among both defenders and critics of abortion. Imagine, Thomson writes, that you awake one morning to find yourself hooked up to the body of an unconscious violinist who is suffering a fatal kidney ailment. The Society of Music Lovers has kidnapped you and plugged this famous violinist into your circulatory system, so that your kidneys can be used to filter his blood. You are told that in nine months, the famous violinist will have recovered, and can be safely detached, but in the meantime, to unhook him from your body would kill him. The violinist is a person, and so he has a right to life. Your life is not endangered, but you must remain tethered to the violinist against your will for nine months, thus greatly diminishing your freedom. If his right to life guarantees him the use of your body for life support, then it is morally incumbent on you to provide it, regardless of the cost to your personal freedom. The implications for abortion are clear: the violinist is meant to be analogous to a fetus, and you and your kidneys are analogous to a pregnant woman providing life support to a fetus. If, Thomson argues, it is implausible that you are morally obligated to sustain the violinist's life at such a cost to your personal freedom, then it ought to be equally implausible that a fetus's right to life guarantees it the right to continued use of a woman's body (Thomson). Thus, the fetus's right to life doesn't make abortion morally impermissible, for "having a right to life does not guarantee having either a right to be given the use of or a right to be allowed continued use of another person's body—even if one needs it for life itself" (Thomson, p. 336).

If Thomson's analogy is accepted, there are serious grounds for questioning the assumption that abortion is morally impermissible if a fetus has a right to life. However, both opponents and proponents of the right to abortion have argued against the soundness of Thomson's analogy. Abortion critics claim that there is a deep, even grotesque disanalogy between a fetus and the violinist, and that Thomson fails to attend to the moral distinction between intentionally killing and letting die. Abortion, it is argued, intentionally kills a fetus, but detaching oneself from the violinist only allows the violinist to die from his kidney ailment, an act with a very different moral status than murder. Abortion proponents and opponents alike raise a responsibility objection to Thomson's argument, claiming that her conclusion only holds in cases where pregnancy results from an involuntary act. Warren criticizes Thomson's analogy on those grounds, arguing that it is too weak to provide a thorough defense of a right to abortion, allowing it only in cases of rape (Warren, 1973). Since the majority of unwanted pregnancies are not the result of rape, Thomson's argument would permit abortion in only a small fraction of unwanted pregnancies. Thomson acknowledges that her argument leaves open the possibility that there may be some cases in which the unborn person acquires, tacitly or by consent, a right to the use of the mother's body, and in which abortion would be an unjust killing. But this possibility does not force the conclusion that all abortions are unjust killings. "Except in such cases as the unborn person has a right to demand it … nobody is morally required to make large sacrifices, of health, of all other interests and concerns, of all other duties and commitments, for nine years, or even for nine months, in order to keep another person alive" (Thomson, p. 338).

It is difficult to consistently maintain the position that a fetus's right to life trumps all other rights or considerations. In cases where the life of a pregnant woman is endangered by pregnancy, only the most extreme opponents of abortion claim that because abortion is the intentional killing of an innocent person, it is still morally wrong and the mother must be allowed to die. More moderate opposition to abortion allows exceptions for the life or health of the mother, and also for cases where pregnancy results from rape or incest. There is a clear inconsistency in the rape and incest exception, however, since it makes the unborn fetus's right to life contingent on the actions of its father. Abortion opponents who grant exceptions in cases of rape and incest must, if they are consistent, explain why those fetuses have a different moral status, or less of a right to life, than other fetuses, or why the right to life loses its priority to a woman's rights in those cases.

Pro-choice feminist arguments charge that most discussions of abortion place undue emphasis on fetal rights and too little emphasis on the contexts in which decisions about abortion take place. Susan Sherwin argues that traditional, nonfeminist approaches to the abortion controversy are too simplistic, considering the permissibility of abortion in isolation from the social and sexual subordination of women, and the struggle of women for control over their bodies and reproduction. Nonfeminist arguments thus mistakenly claim that the moral status of abortion turns exclusively on the moral status of the fetus (Sherwin). The central moral feature of pregnancy, Sherwin argues, is that it takes place in women's bodies and profoundly affects their lives. Because fetuses have a unique physical status of dependence on particular women, they have a unique social status as well—the value of a fetus, Sherwin claims, is determined solely by the nature of its primary relationship to the woman who carries it, and "no absolute value attaches to fetuses apart from their relational status" (p. 111). The focus on the fetus as an independent, rights-bearing entity denies pregnant women their proper roles as independent moral agents who, alone, have "the responsibility and privilege of determining a fetus's specific social status and value" (p. 110).

Some pro-life feminists attempt to sidestep the rights controversy and argue instead that abortion is inconsistent with the goals and ideals of feminism, such as opposition to violence, and the promulgation of an ethic of caring, nurturing, and interconnectedness. Others, like Sidney Callahan, argue that feminist goals cannot be achieved in a society that permits abortion (Callahan). The exclusion of the unborn from the sphere of rights and protection, Callahan argues, is analogous to the exclusion of women in unjust, patriarchal systems where "lesser orders of human life are granted rights only when wanted, chosen, or invested with value by the powerful" (Callahan, p. 368). Moreover, to grant a right to abortion in the name of women's privacy or autonomy validates the view that pregnancy and child-rearing are the sole responsibility of individual women, relieving men and the community from any responsibility. Thus "women will never climb to equality and social empowerment over mounds of dead fetuses …" (Callahan, p. 371). To exercise moral autonomy, Callahan argues, requires responsiveness and responsibility not only to what is wanted or chosen, but to what is unwanted and unchosen as well. Callahan makes no exceptions for pregnancy due to rape, arguing that even the involuntarily pregnant woman has "a moral obligation to the now-existing, dependent fetus whether she explicitly consented to its existence or not" (Callahan, p. 370).

Margaret Olivia Little argues that the literature on abortion deeply undersells the moral complexity of abortion, focusing too much on a thin moral assessment of its permissibility. She proposes that what is needed in the moral discussion of abortion is an ethics of gestation that addresses questions of "what it means to play a role in creating a person, how to assess responsibilities that involve sharing, not just risking, one's body and life, what follows from the fact that the entity in question is or would be one's child." (Little, p. 493). A more complex moral interpretation must move beyond questions of metaphysical and moral status and permissibility to consider abortion's "placement on the scales of decency, respectfulness, and responsibility" (Little, p. 492).

If fetuses are not persons, Little argues, they are nonetheless respect-worthy because they are burgeoning human lives, and abortion remains a serious matter because it involves the loss of something significant and valuable. Even if we allow that fetuses are persons, however, the important moral question is what positive duties and responsibilities, if any, pregnant women have to continue gestational assistance. Both liberal and conservative positions on the duties of parenthood assume that it is an all or nothing affair, and that pregnant women either have the same obligations and responsibilities to fetuses that they do to children, or that they owe nothing beyond general beneficence. But parenthood, Little claims, is more than a social role—it is, more crucially, a relationship that develops through time, interaction, and emotional intertwinement. Regardless of the view one takes on the personhood of fetuses, gestation uniquely changes the relationship a woman has to her self, bringing with it a new identity and an impending relationship with another that is not always welcome or sustainable. Thus, "assessing the moral status of abortion … is not just about assessing the contours of generic respect owed to burgeoning human life, it's about assessing the salience of impending relationship" (Little, p. 498).

The fetus's status becomes progressively weightier as pregnancy continues, Little suggests, but until the fetus is a person, there is a moral prerogative to decline parenthood and end pregnancy because it "so thoroughly changes what we might call one's fundamental practical identity …. As profound as the respect we should have for burgeoning human life, we should acknowledge moral prerogatives over identity-constituting commitments and enterprises as profound as motherhood" (Little, p. 498).

The Selective Abortion Controversy

The development of tests to prenatally diagnose genetic diseases and disorders has greatly outpaced the development of effective treatments and therapies. The Human Genome Project promises to accelerate the development of prenatal diagnostic tests. Through procedures like chorionic villus sampling (CVS), which can be performed at ten weeks gestation, and amniocentesis, available at fourteen to sixteen weeks, numerous genetic abnormalities in the fetus can be detected in utero. The tests are routinely administered to women at risk for fetal abnormalities, such as older mothers and those with a family history of genetic disorder. Ultra-sound, which is routinely performed throughout most pregnancies, can detect a number of abnormalities as well, including neural tube defects that can result in severe physical and cognitive disability and death. In rare instances, fetal therapy, including surgery, can correct the problems, but the overwhelming majority of pregnant women whose fetuses are found to have abnormalities are currently faced with only two options: abort the defective fetus, or risk giving birth to a child that will potentially face a lifetime of disability and hardship. In cases where the fetus's condition will result in severe physical or mental impairment, or where it will lead to inevitable death and a short, painful life, only the most extreme opponents of abortion maintain that it is wrong to abort. Abortion moderates and supporters see those as clear cases where abortion is not only morally permissible, but in some situations, morally required. Less agreement exists regarding the abortion of fetuses with minor abnormalities, genetic predispositions to disease, and genetic diseases that are eventually lethal, but compatible with more or less normal life for many years.

Disabilities rights advocates oppose the routine administration of prenatal screening and the selective abortion of fetuses found to have abnormalities. Although many disabilities rights scholars are pro-choice, and defend a woman's right to choose abortion, they object to the use of selective abortion for fetal indications, which they argue discriminates against existing people with disabilities, and sends the message to those living with disabilities that they should never have been born. This so-called Expressivist Argument claims that selective abortion expresses discriminatory attitudes towards the disabled and undermines efforts to create a more just, inclusive society (Asch, 2000). The disability critique of abortion is novel because it is concerned only with the abortion of otherwise wanted fetuses that possess a single undesirable trait, a disability.

There is profound disagreement about the use of prenatal screening and selective abortion to select fetuses for gender, either for purposes of family "balancing" or because of personal or cultural preferences for children of a particular sex—typically male. Throughout many parts of Asia, where female infanticide was once common, it has been to some extent replaced by the use of ultrasound to prenatally determine the sex of a child, followed by selective abortion of female fetuses. Analysis of census data and predicted sex ratios shows that, by a conservative estimate, more than 100 million females are missing worldwide. In China alone, where selective abortion of females is illegal, it is estimated that there are 30 million missing females, about five percent of the national total; in India and Pakistan, the number exceeds 24 million (Kristof). The criminalization of female infanticide and abortion in China and India has done little to change the deeply ingrained cultural preferences that lead to the practices, and there is good reason to believe that in societies where male offspring are overwhelmingly preferred, missing females who are not aborted are the victims of infanticide, abandonment, or fatal neglect. For consequentialist reasons, many would regard abortion as preferable in those circumstances. Little observes that in cultures that openly discriminate against women and girls, giving birth to a daughter who will face rejection and disrespect can do violence to a woman's ideals of creating and parenthood: "A woman living in a country marked by poverty and gender apartheid wants to abort because she decides it would be wrong for her to bear a daughter whose life, like hers, would be filled with hardship" (Little, p. 499). In Western countries where gender equality is avowed, however, the use of abortion for sex selection leaves many abortion rights defenders uneasy with the prospect of justifying a morally serious practice done for reasons regarded as trivial or patently discriminatory.

There is growing controversy over the use of fertility treatments like in vitro fertilization (IVF) and superovulatory drugs, which pose a fairly high risk of multiple gestations and births. Numerous complications affecting both the pregnant woman and her offspring are associated with multiple pregnancies. The high cost and low success rate of fertility treatments contributes to the problem—with IVF, it is typical practice to implant more than the desired number of embryos in order to increase the odds of success; superovulatory drugs, which stimulate a woman's ovaries to produce dozens of ova, afford little control over the number that will ultimately be fertilized and implanted. It is more than a little ironic that the effort to assist couples in achieving pregnancy has led to an abortion controversy over the use of selective reduction, the practice of removing some fetuses in multiple pregnancies in order to increase the chances of a healthy pregnancy and birth for the remaining fetuses. Although the procedure is not without risks—miscarriage, fetal death, and disability are known complications of selective reduction—some commentators question whether in pregnancies with a large number of fetuses—more than two or three—there is a moral imperative to reduce in order to decrease the risks to the surviving offspring. In 1997, twenty-eight-year-old Bobbi McCaughey made history when she gave birth to seven live babies—born eight weeks premature—after using fertility drugs to stimulate ovulation. While the McCaughey septuplets were widely reported as a medical "miracle," some medical ethicists questioned the wisdom of the parents who, as devout Christians, refused the option of selective reduction, thus placing their offspring at increased risk for prematurity, low birth weight, cognitive and physical disability, and death (Steinbock, p. 377). In addition to serious ethical concerns about the risks of fertility treatments and multiple pregnancies, there are consequentialist and social justice concerns about the multimillion dollar cost of neonatal care associated with multiple births, and, in a climate of medical cost-cutting, the responsible use of limited healthcare dollars.

Partial Birth Abortion

Partial birth abortion is a nonmedical term coined by anti-abortionists to describe an abortion procedure known technically as intact dilation and extraction (D&X). D&X is used primarily in second trimester abortions, and the procedure involves partially delivering a living fetus into the birth canal, then collapsing the skull and completing delivery of a dead but otherwise intact fetus. In an amici brief to the Supreme Court, the American College of Obstetricians and Gynecologists noted that D&X involves substantially less risk of complication than other methods of abortion used during the same gestational period (Stenberg v. Carhart, 2000). Fewer than five percent of abortions performed in the United States occur in the second trimester, with the vast majority taking place in the first trimester, but when the D&X procedure was widely publicized by abortion opponents in the mid-1990s, it created immediate controversy. President Bill Clinton twice vetoed federal bills to ban partial birth abortions, but a number of state laws were passed prohibiting the procedure. A Nebraska statute that made the performance of D&X a felony was challenged in a case brought to the U.S. Supreme Court in Stenberg v. Carhart (2000). The Court held that the Nebraska statute violated the Constitution because it lacked any exemption for the preservation of the health of the mother, and because the law's vagueness imposed an undue burden on a woman's ability to choose the more common dilation and evacuation (D&E) abortion procedure, which sometimes involves partial delivery prior to fetal dismemberment. In striking down the Nebraska ban, the Court invalidated the nearly identical laws of thirty other states.

From a consistent pro-life perspective, there can be no moral difference between partial birth abortions and abortions performed using other methods. Because a second-term fetus more closely resembles an infant than does an embryo or very early fetus, publicizing graphic and often gruesome descriptions of the D&X procedure helped the pro-life cause politically, but aside from its inflammatory aspect, it contributed little to the abortion debate. Many pro-choice ethicists, however, regard later abortions of healthy fetuses as more morally serious than early abortions. When the moral permissibility of abortion depends on the criteria used to determine fetal moral status, there is an unsettled empirical question that becomes more urgent as pregnancy continues. In second trimester abortions, cognitive criteria for fetal personhood or rights, such as sentience or cortical activity, may, by conservative estimates, be satisfied, but it remains an open question whether certainty can be achieved in this substantial gray area of fetal development.

Consequentialism and Abortion

The abortion debate in the United States has almost exclusively focused on questions of rights, to the exclusion of all other considerations. A consequentialist approach that assesses the morality of abortion in light of its good and bad consequences has the potential to resolve the rights standoff, and a number of consequentialist considerations have bearing on the abortion debate. Abortion critics have long raised fears of a slippery slope, charging that permissiveness about abortion will inevitably lead to the devaluation of human life, and a "culture of death" in which attitudes about other forms of killing, such as infanticide and euthanasia, will become more permissive. The argument depends on the assumption that the killing of a fetus is regarded as just as serious as the killing of an infant, child, or adult, and that the permissibility of one entails the permissibility of all. The culture of death argument, like other slippery slope arguments, also makes an empirical claim that the evidence to date fails to support. Since abortion was legalized in the United States in 1973, there has been no slide toward permissiveness about other forms of killing. Only one state, Oregon, has legalized physician-assisted suicide, under strict regulation. In all other states that have considered physician-assisted suicide or euthanasia, voters have declined to endorse it. Neither is there evidence to suggest that the killing of newborns is more common in the United States than it was before abortion was legalized, but in parts of the world where infanticide has historically been an acceptable means of eliminating unwanted offspring, the availability of abortion has not increased the incidence of infanticide, but reduced it (Kristof).

The coat hanger has been a powerful symbol of the abortion rights movement, a reminder of the dangerous, sometimes deadly abortions women endured before Roe v. Wade. Proponents of abortion rights have substantial evidence to support the claim that legal prohibitions on abortion lead to the deaths of women through self-induced abortions or illegal, unsafe abortions performed by untrained providers. Legal abortion performed under safe and sanitary conditions is generally safer than pregnancy, but in countries where abortion is prohibited, or access is severely limited, the negative consequences of unsafe and self-induced abortions include serious complications such as sepsis, hemorrhage, genital and abdominal trauma, perforated uterus, gangrene, secondary infertility, permanent disability, and death (World Health Organization [WHO]). Treatment of complications from unsafe abortions places a serious strain on the medical infrastructure of developing countries, where a disproportionate share—up to 50 percent—of scarce hospital resources are expended treating abortion complications. Unsafe abortions thus compromise other maternity and emergency health services in poor countries where healthcare is already inadequately resourced (WHO). Statistics on abortion-related mortality are especially telling: In Paraguay, illegal abortions are responsible for an astonishing 23 out of every 100 deaths of young women (United Nations). In Romania, abortion-related deaths increased sharply after 1966, when the government restricted abortion. The maternal death rate rose from 20 per 100,000 live births in 1965 to 150 per 100,000 in 1983. Abortion-related deaths decreased by more than 50 percent in the year after abortion was again legalized in 1989 (WHO). Statistics on abortion-related mortality in the United States tell a very different story about safe, legal abortion: the death rate is 0.6 per 100,000 procedures, making it as safe as a penicillin injection (WHO).

Social Justice and Access to Abortion

Decades after Roe v. Wade, state and federal courts and legislatures continue to address the abortion issue, and government agencies have adopted numerous regulations that affect access and funding for abortion. The practical effect of much of this activity has been the erosion of abortion rights.

Women seeking abortions currently face difficulties that are not encountered in any other area of medical care. The consolidation of the healthcare industry has reduced the number of hospitals that perform abortion, and the majority of abortions in the early twenty-first century take place in free-standing clinics that are often besieged by anti-abortion protesters who block entry to clinics and harass patients. Abortion clinics have been bombed, and doctors who provide abortion murdered. This use or threat of violence by anti-abortion extremists has had a profound effect on access to safe abortion by contributing to a decline in the number of doctors willing to perform abortion. A 1997 study shows that the percentage of obstetrics-gynecology providers willing to perform abortions dropped from 42 to 33 percent between 1983 and 1995 (Washington Post, 1998). A 1998 study published by the National Abortion and Reproductive Rights Action League showed that 86 percent of U.S. counties—with nearly one-third of the female American population—had no abortion provider (Michelman).

In such an atmosphere, concerns about equality and social justice arise because limited access to abortion disproportionately affects poor women (Schulman). The deeply divisive moral controversy over abortion has engendered a secondary political conflict over who should pay for abortions. Federal restrictions limit Medicaid funding for abortions to those necessary to preserve a woman's life, or for pregnancies that result from rape and incest. At the same time, state and federal welfare reform initiatives have resulted in many women and children losing welfare benefits, putting a further strain on the ability of the poorest women to procure abortions that are available to financially betteroff women, and compounding the economic injustice of a healthcare system already rife with inequalities. When access to safe abortion depends on the ability to pay, the right to abortion exists in principle, but not practice.

Equally problematic from the standpoint of justice are government policies that deny financial assistance to family-planning clinics that provide information to clients about abortion. The global gag rule imposed on international family planning groups—which sometimes provide the only healthcare available to poor women and their children in developing countries—prohibits those organizations from receiving funds from the U.S. government if they discuss abortion. It is incompatible with principles of justice and equality to deny women access to information about the option and availability of abortions if it means they will be denied healthcare services that are available to women who are wealthier or better educated.

Medical abortion, or the use of the abortion drug RU-486, also known as Mifeprex, was once viewed as a solution to the problem of limited or inconvenient access to surgical abortion, but it has not proven to be an option for most women in the United States. The drug has been widely used in Europe, and was approved by the Food and Drug Administration (FDA) in 2000 despite considerable protest by anti-abortion forces. But recent surveys show that only 6 percent of obstetrician-gynecologists and 1 percent of family doctors provide RU-486 to their patients. There are a number of reasons: RU-486 is expensive, it requires three visits to a doctor—which is particularly difficult for women who must travel substantial distances to see a provider—and it must also be administered early in pregnancy. FDA regulations also require that doctors who administer RU-486 be able to perform surgical abortion, or be affiliated with a hospital that can, which limits the number of doctors who can prescribe the drug (Washington Post, 2002).

Can the Abortion Conflict Be Resolved?

The reasons women choose abortion are as varied as the reasons they often choose not to abort. In countries where abortion is legal, and countries where it is not, millions of women make individual moral choices to end pregnancies. Some seek abortion after contraceptive failure, others because it is the only contraceptive option available to them; some choose to end their pregnancies for financial or emotional reasons, or for the well-being of their families; still others make the tragic decision to terminate a desired pregnancy because of an unwelcome prenatal diagnosis, or because their child is the wrong sex, or because their own health is in jeopardy. Regardless of what courts and politicians, ethicists and church leaders decide about abortion, there will always be unwanted pregnancies, and there will always be women willing to risk their lives and health to have abortions. Those are the facts of the matter.

The moral picture is characterized by far less clarity. Few reasonable people would argue that abortion is not a morally weighty issue, but just how serious it is, or is not, are questions that remain unsettled. Abortion may be an insoluble political problem in a pluralistic society where incommensurable moral and religious convictions hold sway and admit of little compromise. That does not necessarily make it an insoluble moral problem. All sides can agree that the stakes are high in abortion, and the difficulty of resolving the moral conflict should not be understated. Equally reasonable and thoughtful moral theories about abortion have produced greatly divergent conclusions. If none of these theories has yet proved immune to counterargument and criticism, if none has yet prompted a collective sigh of relief that the debate is at last over, they have all contributed to the unavoidable conclusion that the abortion controversy defies simplification, and, in its uniqueness, defies easy assimilation to familiar moral principles.

l. syd m. johnson

BIBLIOGRAPHY

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INTERNET RESOURCES

United Nations. "Maternal Mortality Figures Substantially Underestimated, New WHO/UNICEF Study Says." Available from <http://www.un.org>.

World Health Organization. "Unsafe Abortion: Global and Regional Estimates of Incidence of All Mortality Due to Unsafe Abortion with a Listing of Available Country Data." Available from <http://www.who.int>.

Abortion: II. Contemporary Ethical and Legal Aspects: A. Ethical Perspectives

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