20 minute read
Jake Turner, Texas A&M University
Roe v. Wade and Decisions Under Uncertainty
Jake Turner Texas A&M University
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AB S T R A C T
The discussion of abortion in the United States tends to pose a rather odd contradiction: Many pro-choice and pro-life advocates seem to be certain in their ability to find the objective standard of when human life begins, and then premise their arguments on this understanding. However, this can’t be true: at least one side must be wrong as their standards contradict. This becomes increasingly visible after a close reading of abortion laws and precedent in the United States, specifically that of Roe v. Wade. In the United States, most abortion law is premised on the concept of it being possible to identify the “correct” standard for when the fetus becomes morally considerable. I think this is logically wrong, as it carries the faulty premise that we can conclusively prove when the fetus becomes considerable. Therefore, the question ought to be what the morally correct abortion law is given our limited knowledge. In this paper, I do not contend to have “solved” the abortion question; rather, I argue that laws regarding abortion ought to be made in such a manner that minimizes predictable harm, specifically the harm of the infringement of rights.
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The discussion of abortion in the United States tends to pose a rather odd contradiction: Many pro-choice and pro-life advocates seem to be certain in their ability to find the objective standard of when human life begins, and then premise their arguments on this understanding. However, this can’t be true: at least one side must be wrong as their standards contradict. This becomes increasingly visible after a close reading of abortion laws and precedent in the United States, specifically that of Roe v. Wade. In the United States, most abortion law is premised on the concept of it being possible to identify the “correct” standard for when the fetus becomes morally considerable. I think this is logically wrong, as it carries the faulty premise that we can conclusively prove when the fetus becomes considerable. Therefore, the question ought to be what the morally correct abortion law is given our limited knowledge. In this paper, I do not contend to have “solved” the abortion question; rather, I argue that laws regarding abortion ought to be made in such a manner that minimizes predictable harm, specifically the harm of the infringement of rights.
While abortion has been present in the United States since its founding, the abortion debate truly came into form during the 1960s, peaking with the 1973 Roe v. Wade decision. The question the court answered in that case was whether or not a Texas law prohibiting abortion except to save a mother’s life was constitutional. The court sided with the plaintiff, naming in its decision a few key findings:
a. The finding of a right to privacy in the 1st, 4th, 9th, and 14th Amendments, which reportedly creates a fundamental right to abortion. This right is generally argued as an extrapolation of a right to liberty, which is how I will be approaching it. b. Established a competing state interest through the standard of “fetal viability [of life.]” This standard argues that while the fetus is, from a scientific standpoint, alive, its life is possessed by the mother and is part of her body, until some point where its life becomes its own and it is viable outside the mother, albeit with medical intervention. c. Established a balancing test through a trimester framework. States could not prohibit abortion in the first trimester, may enact some restrictions for the second trimester, and may outright ban abortion starting at the third trimester.
It is worth noting that the trimester standard was later revised in Planned Parenthood v. Casey, being replaced with a metric that establishes ‘fetal viability’1 as the earliest point for potential state action. More importantly, in both Roe v Wade and Planned Parenthood v. Casey, the standard of fetal viability is used as a stand-in for when the fetus becomes morally considerable, therefore justifying state action. Confusingly, the court simultaneously sets a standard for when life begins, says the standard isn’t when life begins, and says that they do not know when
1. When the fetus can survive outside the womb, albeit with medical intervention.
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life begins. Speaking for the majority in Roe, Judge Blackmun admits to the issue: “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.”2 Despite this, their decision still places fetal viability as the binary point at which a fetus becomes morally considerable.
My primary focus for this paper is Blackmun’s last line, for I contend that it wholly undermines the rest of the argument made by the majority in Roe v. Wade. When Blackmun states “are unable to arrive” it is not merely fluff added to the opinion as dictum. Rather, the reality is that “Human Life” is a concept defined exclusively by those who experience it. “Humanity” does not exist as a binary state; it is an idea we are still exploring and, as a term, it is not one that can ever be conclusively defined. The fetus may be a human life from conception, it may be one from birth, it may be one from its first heartbeat or its first word; no binary state standard seems to fully capture the whole of the human spirit or what makes one “human.” This is not a refutation of such a binary standard potentially existing. However, we cannot currently prove one.
Given this reality, the Blackmun Court answered the question of Roe in the wrong manner. Instead of presuming a knowable standard of when the fetus is a morally considerable human, fetal viability, the court ought to have approached the question as a decision made under uncertainty. In this case, we evaluate the risks and rewards of putting different types of laws into place, and make decisions accordingly. Risk and reward are misleading terms however, because I contend that what we truly prioritize are human rights (which I regard as a priori obligations by definition), specifically those held by the mother and those that may be held by the fetus. But, given that we are prioritizing the fulfillment of rights, it now raises the question of what these rights are.
The primary rights I will be focusing on are life and liberty. The first of these is liberty, which I am focusing on as opposed to the supposed right to privacy. While the majority’s decision centers on a so-called right to privacy, I find issues with this terminology. On a purely legal level, finding the right to privacy in the constitution is tenuous. As constructed by the Supreme Court, the right to privacy is a necessary prerequisite to the existence of a right to liberty, which we have enshrined in various amendments, such as the 1st and 2nd. Simply put, the argument is something
2. Roe v. Wade. p, 47 https://tile.loc.gov/storage-services/service/ll/usrep/usrep410/usrep410113/usrep410113.pdf
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like the following: “Privacy is a prerequisite to liberty. There is a right to liberty, therefore there is a right to privacy.” This is logically sound, but constructing the pro-choice argument as a privacy matter diverts attention away from the loss of liberty that restrictions on abortion could potentially impose. Privacy of citizens is unquestioningly infringed quite frequently, often before any crime has been committed, and many privacy laws in the United States only exist on the grounds of a “Reasonable Expectation” of privacy. I highly doubt pro-choice advocates would like to base their claim to a right to abortion on something so ephemeral and subjective as a “reasonable” expectation. Liberty as bodily autonomy is a much more serious concern, and frames the pro-abortion position into something with much greater severity and relevance than a privacy concern.
Moving on to the right to life, there are a number of subtle premises that require unpacking. First hidden with it is the idea of self-ownership; a right to life supposes “life” as a type of “thing” that one has a right to. Within this, it supposes that the life of each individual is their own, framing life in a similar measure to property. Secondly, a right to life assigns some moral bad towards the taking of another life, similar to how the taking of one’s property is also conceived of as a morally bad rights-violation. Besides these two subtleties, it is also worth noting that one possessing their own life is a necessary precondition towards the fulfillment of any other rights. If one does not have their life, one cannot be considered to have liberty or property either, as all that is owned is ultimately owned by some “life.” But, if that life is owned by another, then those things owned by the life naturally transfer to the other which owns the life.
Given these conceptions of rights, we must now consider the moral calculus necessary to determine how our actions impact the fulfillment of rights obligations. This calculus is as follows:
For any abortion law, weigh: (Probability of infringement of life of the mother x severity of infringement of the life of the mother) + (Probability of infringement of liberty of mother x severity of infringement of the liberty of the mother)
versus
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(Probability of infringement of life of the fetus x severity of infringement of life of the fetus) + (Probability of infringement of liberty of the fetus x Severity of infringement of liberty of the fetus)3
The above moral calculus assumes a few key premises that are necessary for making a moral calculus. We assume that moral calculus is probability x severity and can be comparatively weighed. For some instances, such as the trolley problem, probability is not relevant since it’s universally 100%. In others, severity is not relevant, such as when the impacts of choice a or b are the infringement of the same right. Here we have numerous variables, each of which shifts in zero-sum fashion with the others. We have also assumed here that making such a moral calculus does not violate other Kantian obligations towards respecting personhood.
First for consideration is weighing life against liberty. Suppose we have something that is known to be a human life. Given this circumstance, I hold that it would be morally wrong to kill that human, even if prohibiting such a killing reduces the liberty of another. Reductions in liberty are much less severe than reductions in life, and this is a trade that is frequently and unquestioningly made. I believe this trade to be logically and morally correct. For example, it is morally good to incarcerate drunk drivers to stop them from committing manslaughter, as we are maximizing the enjoyment of rights. The drunk driver loses some liberty, but this is much less than the expected value of the life and liberty that would’ve been lost had they killed someone. It can also be said that one doesn’t really have a liberty claim to the killing of another, the rights on one ends where the rights of others begin. Second, with life being the precondition for all other rights, it naturally follows that the taking of a life is never contained to just the taking of a life; it always results in some eventual negation of rights elsewhere. If one does not possess their own life, they cannot possess anything else, such as liberty or property. Therefore, violations of the right to life also contain “runaway violations.”
Second for consideration is probability vs severity. This question is essentially asking whether it is preferable to avoid a more likely but less severe moral harm or a less likely but more severe moral harm. Obviously, it would be best to reduce both by as much as possible, and reducing either to zero is one way to “solve” some moral calculus problems. If there is a zero percent chance of harm being dealt, no moral
3. It should also be noted that I equate the life of any rights holder to be morally equivalent to the life of any other rights holder. All other standards seem to me to be either ableist, racist, or otherwise founded on illogical notions of some being “superior” humans, who ought to “naturally” lord over others and make decisions on their behalf. I find this objectively stupid.
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harm can be done. The same is also definitionally true if the severity is reduced to zero. The question of probability vs. severity is not entirely necessary for the conclusion at which I arrive, but it is still relevant. I find that we ought to prioritize limiting severity before liberty. My argument for this contains two parts. First, it is much easier for one to manage expected harms than unexpected ones. In this way, it can be said that high probability provides human opportunity to reduce severity, allowing us to more efficiently reduce harm. Second, reducing severity as opposed to probability definitionally makes the impacts of the moral harm easier to recover from. If the options are either a statistically relevant chance of being wounded by a drunk driver, or being less often but more severely wounded by a drunk driver, it is much easier for one to “move on” with their life if the harm is less severe, even if it is more frequent. Suffering and bad luck tend to form a feedback loop, so it may be said that severity has an internal multiplicative factor that probability does not.
Finally, I need to clarify what actual rights are engaged in the procedure of abortion. If we assume that, when it is performed, the fetus is not in any way a human life or a rights holder, abortion is simply a medical procedure. It could be compared to elective surgeries, such as a Botox injection, or a medical health choice, such as the removal of an appendix, depending on why the woman is choosing to have an abortion. If the woman is getting an abortion because she is worried about impacts on her physical health (a life or well-being question, I place abortion into a different category than if the woman is getting an abortion because of reasons like “Having a baby would dramatically change my life.”4 In either case, an abortion can be considered either a liberty question, as seen in phrases like “my body my choice,” or a life question, as with instances like “what if the mother’s life was in danger?” The majority of abortions are undertaken as a liberty question, so I will address that as the default and address the competing lives” question separately.
If we assume that the fetus is a human life that is a rights holder when an abortion is undertaken, then abortion can be classified as nothing other than the termination of a morally innocent and morally considerable human life. Of course, this rests on the notions implicit in basic right to life arguments and does not hold if one is of the persuasion that there is no right to life. However, if there is no right to life, then there cannot be any right to liberty either,5 rendering this entire focus on
4. This was the most cited reason by the following 2004 study, hence why I consider it relevant. Finer, Lawrence B.; Frohwirth, Lori F.; Dauphinee, Lindsay A.; Singh, Susheela; Moore, Ann M. (September 2005). "Reasons U.S. Women Have Abortions: Quantitative and Qualitative Perspectives" (PDF). Perspectives on Sexual and Reproductive Health. 37 (3): 110–8. doi:10.1111/j.1931-2393.2005.tb00045.x. JSTOR 3650599. PMID 16150658 5. If there is any doubt as to whether there is any right to liberty, H.L.A. Hart provides
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rights moot. Nevertheless, I contend that there can’t be any claim to abortion based on a right to liberty without first accepting a right to life. Life is a prerequisite to liberty. If one were to claim a right to A, but not to the prerequisites to having A, then one would have no right at all to A; it is internally self-contradictory. This is the same type of argument used in Roe v. Wade to justify a right to privacy, just as it is a prerequisite to liberty so is life, and we therefore have a right to life if there is a right to liberty. In the American abortion debate, the vast majority of participants agree to a right to liberty, so I contend that it is a safe assumption.
Given the above premises, I now propose the following observation. The sooner in fetal development a standard is placed that limits or bans abortion, the higher the probability that it infringes on a woman’s right to liberty. Conversely, the later in fetal development any standard is placed, the more likely that the right to life of a rights-holding fetus has been infringed. This infringement only occurs after some point when the fetus acquires rights, but it almost certainly does acquire rights at some point, otherwise, no one would have rights. Given this dilemma, we can now finally return to the abortion debate proper and determine what question we ought to answer. I argue that the question is more properly understood as “Is it more ethical to potentially prevent the killing of a morally innocent human life at the potential cost of liberty of another person, or is it better to potentially allow the killing of a morally innocent human life to allow a person a fuller expression of their autonomy?” I conclude that it is morally better to ensure that a morally innocent life is not taken, and below I argue why.
It cannot be said that one has any liberty claim to the prima facie killing of another—such a claim contradicts a right to life. Given that an infringement of the right to life is of greater value than an infringement of a right to liberty, as with our drunk driver, if a woman has an abortion it can only be justified under a liberty claim if she is not terminating a human life. This means that, for our moral calculus, the probability of a violation of the woman’s liberty is not 100%. Secondly, as previously mentioned, I hold that life has a greater moral weight than liberty. Admittedly, there is some room for debate on this. If a woman is forced to carry a child to term, she must endure nine months of involuntary pregnancy. This includes the direct trauma of birth, as well as other reductions in liberty and well-being. However, I reject arguments that extend this further than the immediate pregnancy and birth. While the loss of liberty and harm to well-being may be great and quite relevant,
a notable argument for a right to liberty being a precondition to any other natural right. https://www.jstor.org/stable/2182586?seq=1#metadata_info_tab_contents.
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it doesn’t follow that it justifies the potential killing of an innocent human with a right to life. In light of this though, I do strongly argue for support networks for these women, whether these networks be family, local community, or state. It would be utterly inhumane and illogical to command women to simply carry babies to term and then say “deal with it” when that inflicts harm the commander never faces themselves. The goal is minimizing overall moral harm, and, while I am focusing on life and liberty, there are other moral harms we ought to mitigate. Well-being and liberty both have moral weight, just not as great as that of life.
Now addressing the “competing lives” question, since we have now equalized severity of terms, all that is left is probability and number. If the options are either a woman receives an abortion, or the child is delivered at the death of the mother, I conclude it is better to save the life of the mother, but it is ultimately her decision whether or not she wishes to sacrifice her life. While an indescribably tragic scenario, the mother will face less severe suffering than the child, being better able to either prepare or mitigate the downsides. She presumably has family, friends, or a local community who may share in her grief, and provide a support network that I previously mentioned. However, children born without mothers are disproportionately likely to end up as homeless, drug addicts, or criminal.6 This does not in any way argue for a diminishing of the value of the lives of those people; it is quite the opposite. In spite of their increased likelihood to commit harms to others, I still deeply hold that their lives have equal moral value. What I do argue is that we ought to pursue the route that minimizes moral harm and suffering, which, based on this evidence, seems to indicate prioritizing the life of the mother.
Finally, there is the scenario where carrying the baby to term may risk the life of both the mother and the baby. The woman may either run the risk to them both, or have an abortion to guarantee her own survival. In this instance, we refer back to our original probability x severity calculus and move as follows. Additionally, regardless of the odds of the woman dying, we need to consider this probability multiplied by two to represent the fact that we are wagering what is now two human lives.7 The probability of this must now be compared with the different probability of the abortion constituting a killing of a human life. In short, this looks like: Life of
6. “Striking Back in Anger: Delinquency and Crime in Foster Children.” Adoption in Child Time, https://adoptioninchildtime.org/bondingbook/striking-back-in-anger-delinquency-and-crime-infoster-children 7. Since the child is potentially born in the scenario, I’m treating it as a rights-holder while in the womb. I assume the stance that once the baby is born it is now indisputably considered a rights holder, but this position is not universally accepted. See arguments by Peter Singer for justification of the killing of babies after they are born. Singer, Peter. Practical Ethics. Cambridge University Press, 2017.
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the Baby vs. probability of death ×2. So, if the probability of death is 50% or greater abortion can be morally justified. Anything less than that is an overvaluing of the life of the mother.
To conclude, I find that the question of the legality of abortion is essentially an economic question made with limited information, where instead of risk and reward, we look at probability and severity of infringement of rights. I find that infringement of the right to life holds a greater moral weight than an infringement of a right to liberty, and, while both are unpreferable, it is morally more just to optimize for infringing on rights as little as possible. This naturally leads to the earliest possible standard for prohibiting abortion - conception - as it reduces the probability of the killing of an innocent life to essentially zero. Liberty may be infringed, and this is morally tragic, but it is preferable to potentially allowing innocent human life to be taken. In instances where it is a life claim vs a life claim, the determining factor ought to be the course of action that minimizes moral harm.
Bibliography
Hart, H. L. A. “Are There Any Natural Rights?” The Philosophical Review, vol. 64, no. 2, [Duke University Press, Philosophical Review], 1955, pp. 175–91, https://doi.org/10.2307/2182586.
Reasons U.S. Women Have Abortions ... - Guttmacher.org. https://www.guttmacher.org/sites/default/files/pdfs/journals/3711005.pdf?lang=en.
