This article is from The Objective Standard, Vol. 6, No. 4.
In recent years, antiabortion activists have stepped up their attacks on a woman’s right to abortion and have achieved a series of victories in their efforts to outlaw the procedure. This increasing assault poses a major threat not only to women’s right to abortion, but, more broadly, to individual rights as such. Rights form a logical unity, and to the extent that any are threatened, all are threatened. The antiabortionists’ war on a woman’s right to her body is ultimately a war on all our rights, including our rights to property, free trade, and freedom of speech. To demonstrate this, we will briefly survey the goals, methods, successes, and rationale of today’s antiabortion movement; we will then turn to the reasons women seek abortions, to the nature of rights and the positive case for a woman’s right to abortion, and finally to the reasons why any restriction on abortion rights necessarily clears the way for violations of other rights.1
The Antiabortion Movement
For the most part, today’s antiabortion movement opposes abortion across the board, seeking to ban all abortions from the moment of conception. The movement is split, however, over how best to achieve this goal.
One wing of the movement advocates an incremental approach. Recognizing that a total ban on abortion is not politically feasible at this time, the incrementalists seek to restrict the right to abortion by myriad regulations, such as mandating waiting periods and ultrasounds. By such means, they aim to make abortions increasingly difficult to obtain, thereby reducing the number of abortions as much as possible within the constraints imposed by Roe v. Wade. Referring to a state-level late-term abortion ban, Republican presidential candidate Michele Bachmann endorsed this approach, saying, “Sometimes there are steps that you take to get to the point where you want to be.”2 The Susan B. Anthony List (a prominent antiabortion activist group) is an effective advocate of this approach. In order to “keep up the momentum to achieve our ultimate goal of ending abortion in this country,” its “Pro-life Presidential Leadership Pledge” asks presidential candidates to “select only pro-life appointees for relevant Cabinet and Executive Branch positions,” to “advance and sign into law a Pain-Capable Unborn Child Protection Act,” and more. As of mid-November 2011, Republican presidential candidates Bachmann, Newt Gingrich, Ron Paul, Rick Santorum, Herman Cain, and Rick Perry had signed the pledge.3
This incrementalist approach has been remarkably successful, likely due to the fact that each proposed regulation is debated in isolation, not seen as part of an integrated strategy to enact a total ban of abortion. The Guttmacher Institute reports that a record number of restrictions on abortion were enacted in the first half of 2011, including mandatory waiting periods (5 states), limits on private insurance coverage (4 states), bans on abortion after twenty weeks (5 states), and restrictions on medication-induced abortion (6 states). In addition, the Ohio House passed a measure banning abortion after a fetus’s heartbeat can be detected, as early as six weeks.4 As of this writing, 13 states limit private or exchange insurance coverage for abortion, 24 states have waiting periods for women seeking abortion, and 39 states limit later-term abortions. In addition, 24 states now mandate counseling beyond the requirements of informed consent and specify information that must be given to women—information including questionable claims about the alleged ability of the fetus to feel pain (10 states), the supposed negative psychological consequences of abortion (7 states), and the alleged link between abortion and breast cancer (6 states).5
The other wing of the antiabortion movement—the “personhood” approach—regards the incrementalist approach as a dangerous compromise, because any law that permits abortion thereby “condones” it.6 This wing seeks forthrightly to enact a total ban on abortion in America via state and, ultimately, federal constitutional amendments that would grant full legal rights to zygotes from the moment of fertilization. For example, Colorado Right To Life “commits to never compromise on God’s law . . . [and] understands there are no exceptions which would allow for the intentional killing of an innocent human life [i.e., an embryo or fetus].”7
So far, the “personhood” movement has gathered support and attention, but not yet any concrete victories. The first two state “personhood” amendments were proposed to voters in Colorado in 2008 and then 2010; they gathered only 27 percent and 29 percent approval respectively.8 In 2011, a proposed “personhood” amendment to the Mississippi constitution received 42 percent support.9
A major purpose of these measures is to challenge and overturn Roe v. Wade in the courts, thereby freeing states to enforce strict abortion bans. Notably, a 2007 study by the Center for Reproductive Rights concluded that if Roe were overturned, 21 states would be at “high risk” of imposing immediate abortion bans of varying severity due to recently passed “bans-in-waiting” as well as pre-Roe bans.10 The ultimate goal of the movement is a “personhood” amendment to the U.S. Constitution.11
Despite the electoral failures of “personhood” measures to date, most prominent Republican presidential candidates embrace the basic goals of the “personhood” movement.12 Michele Bachmann, Mitt Romney, and Rick Perry support a “Human Life Amendment” to the U.S. Constitution that would define life as beginning at conception.13 Herman Cain describes himself as “pro-life from conception, period,” opposing even exemptions for rape, incest, or the life of the mother.14 Ron Paul seeks to overturn Roe v. Wade and supports state bans on abortion.15
Of course, many opponents of abortion effectively embrace both approaches simultaneously, supporting any and all efforts to reduce or eliminate abortion by any means possible. For example, although Senator Rand Paul “is open to all avenues of redress against the horror of abortion, including state legislation, federal legislation, and judicial appeals, he is committed, without qualification, to support a mandatory personhood human life amendment to the U.S. Constitution.”16
The combined efforts of the antiabortion movement constitute a powerful cultural force for further restricting and ultimately banning abortion.
What drives the antiabortion movement? Why do its members invoke so much fire and brimstone against this procedure?
Despite the strategic differences among antiabortion crusaders, the vast majority of them are zealously driven to rewrite American law in accordance with religious assumptions. They seek to ban abortion because they regard the termination of any pregnancy as contrary to God’s will. Personhood USA describes its “primary mission” as “to serve Jesus.”17 The antiabortion website Abort73.com, a division of Loxafamosity Ministries, says the group’s efforts are a “response to God’s call.”18 The Susan B. Anthony List boasts that its president, Marjorie Dannenfelser, was “named one of Newsweek’s top ten ‘Leaders of the Christian Right.’”19 A video by Mississippi’s “Yes on 26” campaign “characterizes opponents of the amendment as anti-Christian and mocking God,” and suggests that laws should be dictated by Christian doctrine.20 And the website of “Personhood Mississippi” claims that the most important reason to vote for a “personhood” amendment is that “we will be honoring God and loving our neighbors in our law system.”21 Apart from a few outliers, the antiabortion movement undeniably arises from what Michele Bachmann describes as “the faith community”—primarily the Christian community.22
Unsurprisingly, antiabortion Christians explicitly appeal to scripture to justify their political quest to ban abortion. The blog of the Susan B. Anthony List, for example, argues that “all biblical evidence points us to the pro-life position,” citing passages such as Jeremiah 1:5 (“Before I formed you in the womb I knew you, before you were born I set you apart; I appointed you as a prophet to the nations”) and Psalm 139:13 (“For you created my inmost being; you knit me together in my mother’s womb”). The article concludes that “whether you believe these stories literally happened or that these words were written merely as metaphors to teach us how to act and think, the conclusion is the same—God is pro-life!”23 Priests for Life argues that “God commanded our first parents to ‘Be fertile and multiply’ (Genesis 1:28). Why? God Himself is fertile. . . . He has dominion over human life and is its origin. Parents cooperate with God in bringing forth life. Because this whole process is under God’s dominion, it is sinful to interrupt it.”24 Abortion, in this view, is a form of rebellion against the will of God. Personhood Colorado even claims that opposition to abortion is necessarily rooted in religion by speaking of its cause as a “spiritual battle”: “The secular world and their false gods have no reason to protect the preborn child. However, with the power of God’s promises, and the loving support of His people, all of the lies and scare tactics used by the secular world will be defeated. God’s word is clear. The only real question is, will we be faithful?”25
In short, antiabortion activists are motivated not by observable facts about the nature of the embryo, the nature of the pregnant woman, and the relationship between the two, but rather by faith in the notion that God grants the embryo (or zygote) a right to life and thus forbids a woman to abort it.
The efforts of antiabortion activists notwithstanding, every year more than one million American women seek abortions to preserve their lives, health, and happiness.26 Of all pregnancies not ending in miscarriage, 22 percent end in abortion, and as many as 30 percent of all women will have an abortion by age forty-five.27 For these women, legal abortion can mean the difference between life or death, robust health or debilitating illness, pursuit of their goals or sacrifice to an unwanted child, sexual fulfillment or celibacy to avoid accidental pregnancy, and freedom to live life or risk prosecution and imprisonment for illegal abortion.
The antiabortion movement represents a grave threat to women’s lives and well-being, a threat that impugns the justice of the antiabortion cause and its self-proclaimed respect for human life. Far from being pro-life, this movement is aggressively antilife. Toward making this clear, consider the many reasons why women choose abortion.
Why Women Seek Abortions
In a small but important number of cases, women face possible death or permanent physical injury if they continue a pregnancy. Ectopic pregnancy, for instance, is a life-threatening condition in which the fertilized egg implants outside the womb. It “occurs in approximately 1.5 to 2.0% of pregnancies” and accounts “for 6% of all maternal deaths.”28 The termination of an ectopic pregnancy is often not viewed as abortion, given that the embryo cannot survive; yet, under some proposed “personhood” measures and other abortion bans, the legality of the emergency termination of an ectopic pregnancy would become a matter for debate in the courts.29 For María Reyes, the possibility that the courts would view such a procedure as murder had dire consequences: In 2007, she suffered from an ectopic pregnancy and began hemorrhaging. Her Nicaraguan doctors, fearing prosecution under the country’s strict antiabortion laws, delayed treatment, and she bled to death.30
Other medical conditions sometimes require abortion, even late in pregnancy, to secure the life of the pregnant woman. As David Grimes notes in the Journal of the American Medical Association:
Late abortion can be lifesaving for women with medical disorders aggravated by pregnancy. Conditions such as Eisenmenger syndrome carry a high risk of maternal morbidity and mortality in pregnancy, the latter ranging from 20% to 30%. . . . Cancer sometimes makes late abortion necessary. For example, either radical hysterectomy or radiation therapy for cervical cancer before fetal viability involves abortion.31
Any restriction on legal abortion—including bans on late-term abortions—can jeopardize a woman’s health or life. This is true even for abortion bans with explicit language about protecting the life of the mother. For example, the “personhood” language proposed for Colorado’s 2012 ballot allows for “medical treatment for life threatening physical conditions intended to preserve life.”32 However, because the measure otherwise regards abortion as murder—even if the procedure is done to preserve a woman’s health—what constitutes “life threatening physical conditions” and “medical treatment . . . intended to preserve life” would be subject to legal challenge.
Sometimes the abortion of a badly malformed fetus also can protect the pregnant woman’s health. Tammy Watts got an abortion after “she discovered her baby had Trisomy 13, a chromosomal abnormality that causes severe deformities and carries no hope of survival.” She and two other women testified before Congress in 1995 against a ban on so-called “partial-birth abortions”:
Viki Wilson of Fresno, Calif. . . . had a late-term abortion because the brain of the fetus she was carrying had developed outside the skull. So did Vikki Stella of Naperville, Ill., whose fetus had dwarfism, no brain tissue and seven other major abnormalities. All three women told legislators they owed their health to late-term abortions and that a continuation of their doomed pregnancies posed grave health risks such as stroke, paralysis, infertility or even death.33
To force a woman to carry a nonviable fetus to term imposes psychological costs, too. Most women would be cruelly distressed to continue a pregnancy knowing that the deformed infant, once born, cannot survive long and might suffer for hours, days, or even weeks before dying.
In less severe cases, when the malformed fetus might survive outside the womb, perhaps even into adulthood, the pregnant woman might wish to terminate the pregnancy due to the often-severe emotional and financial burdens of caring for a disabled child and then adult. For example, about 90 percent of pregnant women choose to abort fetuses diagnosed with Down syndrome, which causes mental retardation and other health problems.34 Most couples, even if eager for a child, are unwilling or unable to assume the burden of caring for a perpetual dependent.
Even physically healthy women routinely seek abortions to protect their own mental or emotional health. In a 2004 survey, 12 percent of women cited health concerns as a reason for getting an abortion, including mental health.35 Teens under fifteen and women with substance dependencies disproportionately seek late-term abortions.36 Restrictions on legal abortion force women with mental and emotional problems to undergo the rigors of pregnancy, delivery, and then either motherhood or adoption—thereby inflicting further emotional harm on them, as well as subjecting the fetus to possible damage and the child to potential neglect and abuse.
In that same 2004 survey, around 1.5 percent of women who got an abortion cited rape or incest as the cause of the pregnancy.37 Forcing a woman to carry an unwanted fetus to term when the pregnancy was caused by a sexual assault victimizes her yet again. Even if she gives up the child for adoption, she must live with the ever-present physical reminder of her assault for the duration of her pregnancy. Moreover, the woman might feel a torturous conflict over the born child: she might desperately want to raise her own child, but abhor the thought of raising the child of her rapist.
Of course, relatively few abortions are due to rape, and the majority of abortions are elective, meaning that there is no medical reason to terminate the pregnancy. Generally, women who get an abortion in such circumstances have good reasons for doing so; the ability to obtain an elective abortion is crucially important to the lives and happiness of millions of women. As that 2004 survey indicates, women choose elective abortions for weighty, life-affecting reasons, including the desire not to interfere with education (38 percent) or career (38 percent), concerns that a new child will prevent caring for existing children (32 percent), the inability to afford a child (73 percent), an unstable relationship (48 percent), and immaturity (22 percent).38 These are valid reasons for forgoing pregnancy and motherhood: A woman may do herself serious if not irreparable harm by abandoning her education or a career, inflicting financial hardship on herself and her family, or struggling to raise a child in an unstable family or when otherwise ill-equipped.
Although carrying the fetus to term, giving birth, and putting the child up for adoption is a valid option for many women faced with unwanted pregnancy, the physical and emotional hardships involved in that alternative lead many more women to prefer abortion. Even assuming a healthy pregnancy, for many women the physical trauma of carrying a fetus to term constitutes a serious difficulty and expense, and delivery is a painful and risky procedure. And although the likelihood of death during childbirth has dropped to very low levels in the industrial world, a woman is roughly ten times more likely to die giving birth than having an abortion.39 Moreover, a pregnant woman knows that, upon the birth of her child, she bears responsibility for his care. Thus, a responsible woman choosing adoption must spend considerable effort to select stable and loving adoptive parents. (Notably, given a flood of unwanted babies under an abortion ban, parents might be in short supply, thereby making adoption impossible for many women.) She must consider the possibility that the child will seek her out later in life, as well as the likely emotional pain of giving away her newborn infant to others. For these reasons and others, women often prefer abortion to adoption.
With rare exception, the opponents of abortion ignore or downplay the serious harms abortion bans cause women and others. Personhood Mississippi, for example, says nothing about the effects of its proposed “personhood” amendment on pregnant women except that “mothers in crisis will be protected from a harmful medical procedure” (i.e., abortion).40 Although startling, that lack of concern is no accident. The crusaders against abortion regard any sacrifices required of pregnant women as of little consequence when compared to the overriding “duty” to preserve the life of the embryo or fetus. According to antiabortion activists, the fertilization of the egg by the sperm creates a new human life, and every human life has an inalienable and equal right to life, whether in or out of the womb.41 Hence, they claim, any willful destruction of an embryo or fetus must be condemned and outlawed as murder; and pregnant women are morally obligated to preserve and protect the life of the embryo and fetus, regardless of the personal cost.
But this view contradicts the demonstrable nature and meaning of the concept of rights. Rights are not implanted by God in zygotes at conception, nor are they innate possessions or properties of human beings. Rights are factual requirements of human survival and flourishing in society. They apply only to human beings living and acting as individuals in a social context—not to embryos or fetuses in the womb.42
The Moral Basis of Abortion Rights
A “right,” as Ayn Rand observed, is “a moral principle defining and sanctioning a man’s freedom of action in a social context.”43 The purpose of this principle is to identify the fundamental actions that an individual must be free to take to live as a human being—actions such as living one’s life as one sees fit (the right to life), acting on one’s judgment (the right to liberty), keeping and using the products of one’s effort (the right to property), and expressing one’s ideas (freedom of speech). A person’s rights, when recognized and protected, enable that individual to act free of forcible interference from other people.
A woman is morally entitled to the protection of rights because she is an individual, a person in her own right, who must think and act freely in order to live. An embryo or fetus in the womb, in contrast, is not an individual. It is a wholly dependent being, contained within and supported by the body of the pregnant woman. The fetus does not act independently to sustain its life, not even on the basic biological level possible to a day-old infant. It does not breathe independently, eat independently, move independently, or even defecate independently. The fetus cannot know or interact with the world outside the womb in any meaningful way. It is not an individual member of society, but rather a part of the pregnant woman. None of this changes until the fetus departs from the woman’s body at birth and thereby becomes an individual human person.
Birth is a radical biological and existential change for the fetus, more significant than any other change over the whole course of life, except death. The newborn infant lives his own life, outside his mother. Although still very needy, he maintains his own biological functions. He breathes his own air, digests his own food, and moves on his own. He can leave his mother, either temporarily or permanently, to be cared for by someone else, and still live and prosper. His mind, although in its nascent stages of development, now enables him to grasp the world and guide his actions. The newborn infant is no longer a dependent being encased in and supported by the body of another; he is a person in his own right, living in a social context.
These stark differences explain why rights apply to the born infant, but not to the embryo or fetus. As long as the embryo or fetus resides in the womb, it is not living its own life, it is not an individual, it is not a rational being, and it does not exist in a social context. As such, it is not a person with the right to life; it is only a potential person.44
The pregnant woman, in contrast, is an actual person with the right to life, including the right to control her own body. As such, she has the right to terminate her pregnancy for any reason, even if others disapprove. Any attempt to grant rights to the embryo or fetus means denying her rights and forcing her to sacrifice herself in order to provide life support to the embryo or fetus. Such an attempt is wholly irrational and immoral.
Women suffer grave harms under antiabortion laws because those laws violate their inalienable rights to life, liberty, and the pursuit of happiness. In a rights-respecting society, a pregnant woman is at liberty to seek an abortion, whether medically necessary or elective, in order to promote her life and pursue her happiness. The government in such a society recognizes and protects her right to control her own body; hence, her right to terminate an unwanted pregnancy. Any restrictions or bans on abortion are profoundly immoral because they violate rights.
Abortion Rights and Political Liberty
The campaign against abortion rights does not take place in a political vacuum. A woman’s right to control her body connects logically and legally to our other rights, including those in the economic sphere. The antiabortion movement threatens to undermine all rights by demanding false rights for embryos and fetuses.
Most obviously, laws restricting or banning abortion directly violate a woman’s fundamental rights. Such laws violate her right to life, not only by threatening her with death and disability, but also by barring her from living a life of her own design. They violate her liberty by preventing her from controlling her own body and seeking abortion drugs and services in a free market, as well as by imposing criminal punishments if she seeks or obtains an abortion. And they violate her right to pursue her own happiness by forcing her into unwanted pregnancy and motherhood.
Moreover, antiabortion laws directly infringe economic liberty. Such laws forbid voluntary economic activities and exchanges, such as a doctor providing abortion services or a pharmacist selling abortifacient drugs. They also infringe the rights of drug companies to research, produce, and sell drugs that might abort or harm an embryo or fetus. Some abortion bans, particularly those based on “personhood” from fertilization, would likely have even further-reaching effects, such as outlawing the birth control pill and the intrauterine device (IUD) because their use might prevent the implantation of a zygote in a woman’s uterus. The most common fertility treatments would be outlawed, too, because they involve the creation of multiple embryos outside the womb, only some of which are implanted.45 In short, antiabortion laws violate the rights of individuals to produce and trade.
Bans on abortion compound these rights violations by imposing criminal penalties on abortion seekers and providers.46 Under “personhood” laws, these penalties would be draconian: Every abortion, even in the earliest stages of pregnancy, would be premeditated murder, on par with killing an infant or any other person. So a woman who has an abortion could face criminal prosecution and punishment, possibly including a lengthy prison sentence or even the death penalty. A woman’s boyfriend, husband, friend, or doctor who assisted her likewise would face criminal prosecution. This concern about criminal prosecution is not merely hypothetical. Recently, an Idaho prosecutor pressed felony charges against Jennie Linn McCormack for taking the abortion drug RU-486; a judge granted her a preliminary reprieve.47 In 2010, a 21-year-old Australian woman faced seven years in prison for taking RU-486, while her 22-year-old boyfriend faced three years for helping her obtain it (a jury found the couple not guilty).48 In 1975, U.S. physician Kenneth Edelin was convicted of fetal manslaughter for performing an abortion for a 17-year-old girl, even though the girl’s mother begged for the procedure for fear that the girl’s abusive father would harm her upon discovering the pregnancy.49
In addition, antiabortion laws establish dangerous precedents for sweeping rights violations in other spheres of life. For example, laws based on the premise that abortion is “socially destructive” or “harmful to women” violate the woman’s right to seek medical care based on her own best judgment. In so doing, they sanction other paternalistic laws, such as forbidding overweight people from buying certain foods deemed unhealthy by the government, or requiring everyone to purchase health insurance. Laws restricting abortion coverage in insurance policies do not merely violate freedom of contract but also encourage even more political wrangling over costly health insurance mandates.50 Similarly, if politicians are entitled to force a waiting period on women seeking abortion, then what is to stop them from enacting waiting periods on any activity, from buying a gun to selling stocks? Requiring abortion providers to include unscientific and other disputed claims in counseling violates their freedom of conscience and professional ethics—and encourages politicians to demand warnings for other goods and services that some people may oppose. In short, restrictions on abortion pave the way for countless other rights violations.
However, the antiabortion crusade threatens rights in an even more fundamental way—by demanding laws founded on religious beliefs rather than observable facts. Claims of divine commands, including the supposed “rights” granted by God, are nothing more than arbitrary, baseless assertions: There is no evidence for the existence of a God, let alone for any morally binding edicts from such a being. Any laws based on religious stories and dogmas will necessarily clash with the objectively demonstrable rights of individuals and the laws that properly protect those rights. Consequently, the antiabortion movement, particularly in conjunction with the broader “social conservative” agenda of the religious right, poses a grave threat to all our liberties.
If abortion should be outlawed because some people imagine that God imbues the zygote with the right to life at the moment of conception, then our whole system of laws could be rewritten to reflect popular tenets of Christianity—and individual rights would be systematically violated in the process. For example, if, as the Baptists claim, devout Christians should eschew alcohol, then perhaps alcohol should be banned across America, as happened under Prohibition—rights of property and trade be damned.51 Because Jesus regards lust in the heart as adultery (Matthew 5), perhaps pornography should be banned—a goal Michele Bachmann has already endorsed—even if that violates the rights of contract, expression, and voluntary association between consenting adults.52 Any claimed right to ban activities or goods on religious grounds necessarily clashes with our actual rights of property, contract, and speech.
More broadly, Christian scriptures do not advocate individual rights and capitalism, as some conservatives imagine, but instead repeatedly condemn wealth, demand sacrifice to the poor, and even support slavery.53 Hence, if abortion is to be banned based on a few ambiguous references in scripture, then legislation based on Christian values could entail myriad entitlement programs, redistribution of wealth, regulations to limit “greed,” and other rights violations. Observe that many Christians already advocate environmental controls based on “stewardship theology” or “creation care.”54
If, as Rick Santorum says in reference to gay marriage, “we do not have the right to do wrong,” then every imagined command of God can and ought to be given force of law.55 Yet, if God’s alleged word is accepted as the proper basis for law in America, then America will be no more. Individual rights will vanish, particularly as various religions and their sects battle to impose their particular version of God’s commands on everyone else. This trend has already begun, as can be seen in the efforts of Muslims to institute sharia law and of Catholics to institute a “Global Public Authority” to oversee banking and redistribute wealth on a global scale.56 Our choice is demonstrable individual rights or faith-based law: We cannot have both.
Properly understood, individual rights are moral principles arising from facts about the requirements of human survival and flourishing in society. Those facts can be observed and understood by every person who chooses to observe reality and think. The recognition and protection of rights enable individuals to live together peacefully in a society, each pursuing his own life and happiness while respecting the equal rights of others. In a free society, each person may believe whatever he wishes and act on those beliefs, but he may not force others to conform to his religious faith or otherwise violate their rights.
The lives, health, and happiness of millions of American women depend on legal abortion. A woman’s right to life, liberty, and the pursuit of happiness entitles her to seek an abortion if she deems that her best course, because every woman is an individual human person, whereas a fetus is not.
To establish and maintain a free society, we must recognize that our rights logically entail one another and stand or fall together. To fight for liberty, we must reject baseless and contradictory notions of fetal rights, and we must protect women’s rights to their bodies. All of our liberties depend on it.