TOS Blog: Daily Commentary from an Objectivist Perspective

Fetuses Don’t Have Rights; Pregnant Women Do; This Distinction is Crucial

Various opponents of abortion like to pretend that, if a woman has a right to seek an abortion, the law can do nothing to protect a fetus that a woman wishes to carry to term. But that pretense is nonsense.

As Diana Hsieh and I have argued, an embryo or a fetus is not a person, and a woman has a right to seek an abortion. However, that does not mean a fetus has no value: A fetus is enormously valuable to the pregnant woman and the father who want to have a child. Just as a woman has a right to abort a fetus, so she has a right to carry it to term, unmolested by others. Although the fetus does not have rights of its own, the pregnant woman has rights; thus, the government properly protects her body, its contents, and her choice to bring the fetus to term.

With that context in mind, consider the legal chaos that arose in a lawsuit against the St. Thomas Moore Hospital in Colorado.

As the Denver Post reports, in 2006 Lori Stodghill, who was seven months pregnant with twins. She went to the hospital’s emergency room, where she “suffered a blocked artery in her lung . . . went into cardiac arrest” and died. Her twins died, too. “Doctors couldn’t save Lori and decided against a cesarian section to try to save the twins. [Lori’s husband Jeremy] Stodghill sued because he believes they should have performed the C-section,” the Post reports. Although Stodghill lost the case, his attorney has appealed to the Colorado Supreme Court.

The hospital’s lawyers argued that the judge “should dismiss wrongful-death claims with regard to the unborn twins because Colorado law does not define a fetus as a person,” the Post continues. Stodghill, on the other hand, contended the fetuses were “persons,” and, later, so did the hospital. A follow-up article from the Post reports that the hospital “acknowledged [on February 4] it was morally wrong for their attorneys to defend a medical malpractice case in the death of unborn twins by arguing Colorado law doesn’t consider fetuses to be persons.”

The entire legal case is utterly confused. Given that fetuses are not individuated persons with rights, Stodghill and his attorneys had no proper legal grounds to sue under the wrongful-death statute, which is specifically restricted to “the death of a person.”

That said, although a fetus is not a person, the negligent death of a fetus that its mother and father want to bring to birth constitutes a profound harm to the parents. (The question of the doctors’ alleged negligence is outside the scope of this post, as is the question of whether existing statutes adequately address the issues of negligence and criminal harm.)

Properly, the fact that a fetus is not a person is no barrier to holding accountable those who, through criminal assault or negligence, cause or contribute to the death of a fetus. The pregnant woman has a right to decide whether to seek an abortion or seek to carry her fetus to term—and the government’s proper responsibility in this context is to protect her right to choose.

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Posted in: Abortion and Reproduction

Comments are welcome so long as they are civil.
  • Anonymous

    I appreciate this article. We need to discuss these distinctions. To legally declare a fetus a person, leads to a schizoid existence for a woman. To treat a fetus as simply a mass of cells is to renounce the reality of human potential; it is destructive to society. Clearly this case was decided based on public relations, not legality. My concern is that we will pass laws based on public relations, not on reason.

  • Anonymous

    I appreciate this article. We need to discuss these distinctions. To legally declare a fetus a person, leads to a schizoid existence for a woman. To treat a fetus as simply a mass of cells is to renounce the reality of human potential; it is destructive to society. Clearly this case was decided based on public relations, not legality. My concern is that we will pass laws based on public relations, not on reason.

  • http://www.facebook.com/profile.php?ref=name&id=100000501085308 Martin Lundqvist

    Hello there! I have a bit of trouble figuring out what the thesis of your response is. Would you like to clarify, please?

  • http://www.facebook.com/profile.php?ref=name&id=100000501085308 Martin Lundqvist

    Hello there! I have a bit of trouble figuring out what the thesis of your response is. Would you like to clarify, please?

  • Anonymous

    So, the case was dismissed without the malpractice issue even being considered? Is wrongful-death the only tool plaintiff’s lawyer had? I’m puzzled by the case, but agree with your view that the mother’s (or fathers’s in this case) rights should be the standard–always.

    BTW, an interesting exercise is to read the abortion article in the online Catholic encyclopedia.

  • Anonymous

    So, the case was dismissed without the malpractice issue even being considered? Is wrongful-death the only tool plaintiff’s lawyer had? I’m puzzled by the case, but agree with your view that the mother’s (or fathers’s in this case) rights should be the standard–always.

    BTW, an interesting exercise is to read the abortion article in the online Catholic encyclopedia.

  • http://www.facebook.com/people/Michael-Edward-Gaddis/1180947052 Michael Edward Gaddis

    Hard lines should not be drawn in this debate. To take the authors assertion literally, a women should have the right to abort her “fetus” up to an including the day before birth. Most of us would have a hard time supporting such an extreme position. Indeed, the horror of extreme late term abortions is too difficult to imagine, at least for me and most thinking adults.

    At some point, the fetus is a baby with a right to life separate and distinct from its mother. That is the law in most states. Some argue that happens at conception, others at the moment of birth (as, apparently the authors do) and still others have argued that happens at one or two years of age (the fringe keeps getting extended).

    The point the authors are making are orthogonal to the point I make above, they are just trying to define a different kind of value, one accruing to the Mother or Father for any fetus regardless of age which I support. Nonetheless, I cannot let stand an argument that defines a 8.9 month term baby a fetus.

  • http://www.facebook.com/people/Michael-Edward-Gaddis/1180947052 Michael Edward Gaddis

    Hard lines should not be drawn in this debate. To take the authors assertion literally, a women should have the right to abort her “fetus” up to an including the day before birth. Most of us would have a hard time supporting such an extreme position. Indeed, the horror of extreme late term abortions is too difficult to imagine, at least for me and most thinking adults.

    At some point, the fetus is a baby with a right to life separate and distinct from its mother. That is the law in most states. Some argue that happens at conception, others at the moment of birth (as, apparently the authors do) and still others have argued that happens at one or two years of age (the fringe keeps getting extended).

    The point the authors are making are orthogonal to the point I make above, they are just trying to define a different kind of value, one accruing to the Mother or Father for any fetus regardless of age which I support. Nonetheless, I cannot let stand an argument that defines a 8.9 month term baby a fetus.

  • http://www.facebook.com/dale.netherton Dale Netherton

    An unborn baby is a fetus and possess no independence until birth. It has no way to exercise any independence until it can actualize its senses through birth. Without the ability to be independent from the womb it cannot posses rights. Defining human life includes the ability to actualize one’s senses. “Life being a process of self generated and self sustaining action” excludes that which cannot act as a self. Those who are disabled and must be cared for have reached that level of awareness required .

  • http://www.facebook.com/Firebolt205 Bill Hunt

    A number of questionable premises here… 1) many of a fetus’ senses are well developed and “actualized” well before birth. They interact with their environment including the external environment. (Sounds, lights, etc.). 2) Based on what you wrote you imply if not outright state that a baby has no rights until it has reached the age to be self-aware. The brains ability to process information is not significantly different 2 days after birth than it was two days before birth, so at what point do rights accrue and who makes that decision for each individual? 3) most fetuses have the “ability” to exist outside the womb after about twenty weeks of pregnancy, but by the arguments laid out here a “premie” born at twenty-two weeks gestation is an individual with rights, but a healthy fetus at 32 weeks gestation but yet to be delivered does not?

    We know far more about fetal development than we did when Ayn Rand was alive. Our knowledge of reality has changed dramatically, we must check our premises. I for one believe that the premise that a fetus is not a person, regardless of term, is demonstrably not valid based on the information science has made available to us.

  • http://www.facebook.com/people/Michael-Edward-Gaddis/1180947052 Michael Edward Gaddis

    Dale,

    That’s one opinion, nothing more. You state this as if fact; “Without the ability to be independent from the womb it cannot posses rights.” But this definition is only consistent within your defined rule set. Why is independence the sole criteria for legal personhood? Defined morally or legally, it is just one criteria of many you could define. A person who is confined by Lou Gehrig’s disease is as helpless as any baby, should we euthanize Stephan Hawking (motor neuron disease) because his illness demands constant care?

    Do you have the courage of your convictions. In your universe would allow a women to abort her baby when she goes into labor—ready to deliver?

  • Larry

    See how big a can of worms your arbitrary standard opens? Since it depends on whether the fetus is wanted or not (even by the father alone in this case), the doctors were not sure how to proceed. Pregnant or not pregnant – that is your only non arbitrary point.

  • Anonymous

    I didn’t read anything about the doctors being unsure about the parents’ intentions. The mother kept the twins for 7 months, so a reasonable conclusion would be that she intended to continue on to birth. The father wanted the babies, so I don’t see any uncertainty on that point.

  • Anonymous

    Another sticky question. Given that the mother intended to go to term, does the father have a right to stop a C-section? Would a legal document stating the mother’s wish, in case of her pre-term death, have a bearing? Even without a document, it seems to me that her intention may be legally presumed.

  • Anonymous

    Bill, the paper by Diana Hsieh and me, cited in the blog post, addresses all of the issues you bring up, and many more besides. Your comments do not respond to our arguments. Thanks, -Ari

  • http://www.facebook.com/people/Michael-Edward-Gaddis/1180947052 Michael Edward Gaddis

    Read the paper Ari. You make a number of important points and I think most Americans support the right of termination in the cases cited where the life of the mother is at stake (physicians make life and death decisions every day, specially on the battlefield where triage saves lives at the expense of others). Also, when a fetus is not viable and there is nothing but suffering to be gained by continuing the pregnancy, then an equally compelling argument can be made for mercy.The law should accommodate this.

    At the end you move to a place I and the vast majority of Americans cannot follow. You argue that a women, having gone into labor (or just before) can decide to terminate her pregnancy for any reason. That is an abhorrent position. I can’t express my revulsion enough.

    Another point I’d like to make and this is orthogonal to the main subject. While I view myself as a libertarian leaning constitutionally conservative person which puts me reasonably close to the Rand sphere of political influence, I object to the vapid atheism of folks who claim the “objective reasoning” label. I’m not a man of faith myself but I respect those who are, including those in my family. (In truth, part of me envy’s them.) Rand’s philosophy and her adherents, because of this dogmatic predilection, alienates a large segment of the population and partially cripples the libertarian movement. There is room for respect and tolerance of religious persons—you’d rather form a majority with the socialists?

  • Anonymous

    Michael, You state that you are “revulsed,” but what you do not do is make any argument in favor of your position. If you proceed to attempt to do so, I suggest you keep several points of context in mind. First, the large majority of abortions take place in the first trimester. Second, I am not arguing that it is moral for a woman to wantonly put off having an abortion until late in the pregnancy; I am arguing it should be legal. Third, if you argue it should be illegal, then you must support police intervention and criminal penalties for abortion—and you are welcome to spell out what you think those should be. Fourth, nothing about a woman’s right to seek an abortion compels a doctor to provide one. And, fifth, legal restrictions on abortion mean that some bureaucrat, not the pregnant woman, must decide if her reason for getting an abortion is adequate, according to the standards of the bureaucracy. (Regarding your ad hominem attacks on atheists, I will ignore those.) Thanks, -Ari

  • http://www.facebook.com/people/Michael-Edward-Gaddis/1180947052 Michael Edward Gaddis

    Ari,

    Fair enough. Clearly the state has an interest in protecting life. We outlaw murder of any “born” person. I will assume we do not disagree on that.

    Therefore, a line does have to be drawn where the interest of the state supersedes the interest of a Mother. You argue that is the moment a baby is separated from a Mother’s womb. I argue that happens on viability. Yes that is arbitrary at some level but so is your line. Your line is drawn at sever-ability, mine at survivability. Granted that is hard to define given the shifting sands of science but laws need objective rules. The supreme court drew those lines roughly at six months but left the states latitude in defining the exact boundary. Most people would be comfortable with that, few people with your line of demarcation. The penalty is murder and accessory to murder except as abortions are allowed by law given the exceptions we discussed earlier for maternal survivability and indefensible pain and suffering.

    The state has an interest, the question is only when it begins.

    ps. My commentary on Objectivist atheism was not meant as an ad hominem attack. It was a heartfelt statement that the pervasive atheism holds the movement back. It marginalizes the movement…

  • John Gold

    Say you saw a man kick a pregnant women in the stomach. Most people would think there is something quite bad about that and in large part because there is a fetus involved.

  • Anonymous

    I do appreciate your comments on this difficult topic. They key problem is that a fetus is in such a unique situation. However, I continue to uphold the standard of individual rights, not any “state interest” theory. Given the nature of the fetus (as contained inside the body of the woman), and given the nature of rights, a woman has rights, but the fetus does not. In addition to the relevant sections in the paper mentioned above, you might find Craig Biddle’s article, “Ayn Rand’s Theory of Rights,” to shed more light on this position. Thanks, -Ari

  • Friend of John Galt

    A woman’s uterus is part of her body. So long as a fetus is in the parasitic mode (unable to survive without receiving life-giving sustenance from the mother), then the mother can make whatever choice she wishes regarding the continued presence of the fetus in her womb. No one else should have any input. Once the fetus is born, then it is an independent being and should have rights as any other child would have. At that point parental custody can be determined or it can be put up for adoption, if that is desired by both parents.

    This is a private matter and government should not be involved. The error by those who wish to make abortion illegal is that by involving government, they give the power to the government to decide whether abortions should be performed or not. In that view, the one-child policy of China (which mandates involuntary abortions) is a “reasonable choice” made by the government for its economy and society. Once the decision becomes the purview of government, then we all have our individual rights infringed a little more. With government making the decision, then todays anti-abortion policy could become tomorrow’s forced abortion policy.

    I support the first amendment rights of those who wish to persuade women to not have abortions — so long as their efforts are performed without fraudulent methods (“clinics” that only offer adoption counseling) but they should be free to offer whatever persuasive arguments they wish to those freely willing to listen.

  • Friend of John Galt

    This would be assault with intention of great bodily harm. The assailant should be arrested and subject to severe penalties. The presence of a fetus makes the crime worse, since there can be damage to the woman’s reproductive organs, and the fetus might be injured or the pregnancy may be interrupted due to the damage inflicted.

    That means that the decision about carrying on a pregnancy is by another person, not the woman’s choice. That is always morally wrong.

  • http://www.facebook.com/people/Rodger-Bartlett/100001395203768 Rodger Bartlett

    Life is an absolute?

  • http://www.facebook.com/people/Michael-Edward-Gaddis/1180947052 Michael Edward Gaddis

    Ari,

    It is useful to probe the edges of this debate as we have done here because that is where the hardest decisions reside. If I understand you correctly—having stated you do not believe in the “theory” of a state interest to protect life against murderous intent—you believe that it is rather a violation of an individual’s right to life that has been violated, or something to that effect…

    If a person rights are impacted by murder, who determines guilt or innocence, compels testimony, seizes and protects evidence, hunts down, arrests, and incarcerates an accused killer etcetera ad nauseam? The murdered victims family who lost a valued member or the state?

    In a constitutional republic the rule of law establishes rules of behavior by grant of authority from the people whom the state serves. The constitution, at least in theory, constrains that law by its proscribed principals. That’s not a theory, that is a system, good or bad. When I say “state interest,” it is under that context, a constrained set of laws given breath by the consent of the governed…

    I used to think that, “Ayn Rand’ian Objectivists,” were useful allies but, perhaps, just a bit egg-headed and ungrounded in pragmatism. I find myself moving away from that position. I am now moving to the idea that the objectivist movement is dangerously naive and blindly doctrinal—kinda like the churches you seem to loathe. Certainly much to narrowly defined and poorly proselytized for real political impact. A pity…

  • Anonymous

    I don’t see any point to responding to your comments, as you are bizarrely attributing beliefs to me that I do not hold. To reject Ayn Rand’s ideas, you would have to first understand what they are, and I’m not persuaded that’s the case. Thanks, -Ari

  • http://www.facebook.com/people/Michael-Edward-Gaddis/1180947052 Michael Edward Gaddis

    Ari,

    I agree, there probably is no point in further discussion although I would like to understand what you meant to say when you said [Quote: I continue to uphold the standard of individual rights, not any “state interest” theory ] If I misunderstood the intent of these words then elaborate as I did when I used the word “state”. (Admittedly a loaded word on an objectivist website.)

    Btw, it is true that I do not have an in-depth understanding of Ayn Rand’s ideas. While my interest has been piqued at times because I share some of her principals I am not motivated by what I have seen here in this debate and in other venues to probe deeper. I can glean what I need by interacting with her acolytes and probing the edges of their “reasoned opinions.” If I had liked what I saw, then, sure, I’d be all in. Unfortunately…

  • Anonymous

    If you wish to understand Rand’s ideas, then read Rand’s ideas. Don’t try to judge her philosophy as a whole by a highly specialized application of philosophy in a brief blog post and exchange. That’s just not a realistic expectation.

  • http://www.facebook.com/tony.ibbott Tony Ibbott

    I think there is a crucial point that has been overlooked. Rights do not derive from one’s ability to survive independently but from man’s lack of any alternative to reason as a means of survival. That means that a fetus in the womb that is receiving all requirements for life via an umbilical cord does not require freedom to act on his own judgement (rights) thus killing a fetus while the umbilical cord is functioning cannot be called murder. Murder only becomes possible at the stage when the newborn has no alternative means of survival but the exercise of reason (regardless of the degree to which he can succeed at exercising reason), that is at the stage where the umbilical cord no longer functions (has withered naturally or been severed). Now what of the fetus whose mother has died leaving him with no functioning cord and now trapped in the womb? I say this makes him a separate entity with reason as his only means of survival and the principle of rights applies. Should the doctor or hospital be charged with murder because the decided against saving his life?

  • AllMenAreIslands

    Indeed there is a point at which a fetus has rights – the moment when it is born. Not before.

  • http://web.mac.com/acibbott/Site/Home.html Anthony Ibbott

    Rights are requirements for survival, not a reward for growing up and figuring out how to survive. Nearly everyone misses this crucial point. It’s in GS, but it goes by quickly.