Vol. 18 No. 7 (July, 2008) pp.558-566
DEFENDING LIFE: A MORAL AND LEGAL CASE AGAINST ABORTION CHOICE, by Francis J. Beckwith. New York: Cambridge University Press, 2007. 312pp. Hardback. $75.00/£40.00. ISBN: 9780521870849. Paperback. $22.99/£14.99. ISBN: 9780521691352. eBook format. $19.00. ISBN: 9780511332326.
Reviewed by Eileen McDonagh, Department of Political Science, Northeastern University, e.mcdonagh [at] neu.edu.
As Francis J. Beckwith states on the first page of DEFENDING LIFE, the primary purpose of this book is to “provide a thorough defense of the pro-life position on abortion [as grounded] in a particular view of the human person . . . [that] include[s] the unborn . . . [in] the true wideness of our human community” (p.xi). Thus, Beckwith directs his greatest efforts toward establishing the premise that the fetus is a full human being from the moment of conception. By so doing, his book is primarily focused on the age-old assumption that if it can be established that the fetus is an unborn human being with the same moral and legal rights as a born human being, then there is no moral, legal, much less constitutional justification for choosing an abortion. For people still fixated on this assumption, this is the book for you, because Beckwith provides an unusually detailed survey of philosophical and medical perspectives bolstering this perspective.
However, for those who see the pro-life side as having virtually already won the debate over the personhood status of the fetus, this book will be a disappointment. For Beckwith disproportionately directs much less attention to the more compelling and challenging view that “even if” the fetus is a person with the same rights as a born person, women still have a moral, legal, and constitutional justification for abortion rights. The latter perspective is founded on women’s right to self defense in relation to a fetus whose presence and impact, if a woman does not consent to the fetus’s presence and impact, justifies the use of deadly force to stop the way a fetus transforms a woman’s body from a nonpregnant to a pregnant condition. In the wake of relatively recent state-level legislation, such as that passed by South Dakota, establishing that the fetus has the same rights as a born human being, it is the self defense approach to abortion rights that holds the key for the future of abortion rights for women. Granted, voters in South Dakota overturned by referendum legislation conferring personhood status to the fetus, but no one I know is assuming this is the last of such law-making. Thus, as careful and as meticulous as is Beckwith in establishing why the fetus is a person from the moment of conception, his book is behind the times, since this question is becoming more and more moot as each year goes by. That said, let us review the arguments Beckwith invokes about why the fetus is a person.
Philosophically: What the Fetus “Is”
In Chapter One, Beckwith begins by establishing why he thinks there are moral absolutes, or, in his words “objective morality” (p.17) that translates into granting the fetus [*559] personhood status. In Chapter Two, he reviews his version of the current status of the constitutionality of abortion rights as initially established in ROE in 1973. He depicts the Court’s ruling in ROE as permitting a woman to procure an abortion “for practically any reason she deems fit during the entire nine months of pregnancy” (p.19, italics added). Of course, everyone even superficially acquainted with ROE knows that the Court did no such thing. The Court ruled from the outset that in the latter stages of pregnancy, such as the third trimester, there is no constitutional right to an abortion unless a woman’s health or life is in danger. In later cases, the Court clarified that after viability there is no right to an abortion unless pregnancy poses serious health risks to women. Currently, therefore, “abortion on demand” applies only to the pre-viable stage of pregnancy. And then, only if a woman can back up her “demand” with the funds to pay for an abortion, since the Court has consistently ruled that it is constitutional to deny abortion funding to women, even indigent women whose health is threatened by a medically abnormal pregnancy.
In Chapter Two, Beckwith offers an interesting rebuttal to Blackmun’s contention in ROE that, even if the fetus were a person, it would not be covered by the Fourteenth Amendment because that Amendment refers only to “born” people. However, as Beckwith argues, at the time the Fourteenth Amendment was added to the Constitution, “it was not yet known that the child from conception is a separate, distinct human organism” (p.27). If there had been such a view at that time, Beckwith contends that the unborn fetus would have been explicitly included in the Fourteenth Amendment. As it is, Beckwith advises that we extrapolate backward. Thus, for example, “if a statute that forbids burglary became law at a time when no computers existed, it would not follow that the prohibition against burglary does not apply to computers . . . [rather] what matters is whether the entity stolen is property,” not the particular type of property it might be (p.28, italics in text). By analogy, what matters is that the fetus is a human being, according to Beckwith, not that it is a particular type of human being, that is, an unborn human being. Since the intent of the Fourteenth Amendment is to protect the rights of human beings, according to Beckwith, the fetus should be included in that protection, even though at the time of the Fourteenth Amendment, Congress did not intend to include the fetus in its protection.
Thus, in a nutshell, the goal of DEFENDING LIFE is to establish the personhood status of the fetus, on the assumption that once the fetus is a person, there is no moral, legal, or constitutional right to an abortion. In his apparent zeal, however, Beckwith detracts from his own logical prowess by misrepresenting the Court’s ruling. For example, he claims that the Court in WEBSTER “upheld the [Missouri] statute’s preamble, which states that ‘the life of each human being begins at conception,’ and that ‘[u]nborn children have protectable interest in life, health, and well-being” (p.32). In fact, the Court did no such thing in WEBSTER. Rather, it stated that “We . . . need not pass on the constitutionality of the Act’s preamble” (WEBSTER, p.1389), thereby explicitly refusing to rule on the constitutional relevance to abortion rights of the Preamble of the Missouri [*560] statute. People who care about abortion rights know this, and all that Beckwith accomplishes by presenting such serious misinformation is to dilute his credibility.
For those who still wish to debate whether the fetus is a person – and this book does have the tone of a debate manual on the topic – from the pro-life side, Beckwith covers the ground. He addresses pro-choice arguments that include religious liberty, human consciousness as the standard for personhood, the dangers of illegal abortions, women’s economic inequality, women’s equal rights for employment and education, and the impracticalities of abortion prohibition. He also extends his insistence on the personhood status of the fetus from the moment of conception to a critique of cloning (Chapter 8). Beckwith concludes his book with a recap of his argument, which is that (1) the unborn entity, from the moment of conception, is a full-fledged member of the human community, (2) it is prima facie morally wrong to kill any member of that community, (3) every successful abortion kills a full-fledged member of the human community, and (4) therefore, every successful abortion is prima facie morally wrong.
Legislatively: What the Fetus “Is”
Oddly, missing from Beckwith’s heavy-lifting efforts to establish the personhood status of the fetus is the way federal and state-level statutes in the last ten years have virtually done just that. In 2004, for example, Congress passed, and President Bush signed into law, the Unborn Victims of Violence Act (U.V.V.A.), which makes it a separate crime to injure or kill a fetus while committing a federal or a military crime against a pregnant woman on the grounds that the fetus is an “unborn child” from the moment of conception, where the term “unborn child,” refers to “a member of the species homo sapiens, at any stage of development, who is carried in the womb.” It is important to note, of course, that this legislation specifically exempts legal abortions, stating that “Nothing in this section [protection of unborn children] shall be construed to permit the prosecution of any person for conduct relating to an abortion for which the consent of the pregnant woman, or a person authorized by law to act on her behalf, has been obtained or for which such consent is implied by law.”
In addition, as of 2006, in at least 36 states, when a fetus dies or is harmed as a result of injuries imposed upon its mother, there is some type of fetal homicide law available for prosecuting the assailant on behalf of the fetus. In 31 of these states, fetal homicide is defined by means of state statute, and in two by means of case law. In addition, in fifteen of these states, fetal homicide laws apply to even the earliest stages of pregnancy, defined as “any stage of gestation,” “conception,” “fertilization” or post-fertilization. Fetal homicide laws apply in Arizona, for example, to “any stage of its [unborn child’s] development”), in California to the “fetus,” in Idaho to the “embryo,” in Illinois to the “unborn child” defined within the statute (§ 720 ILCS 5/9-1.2) as “any individual of the human species from fertilization until birth,” in Kentucky to the “fetus,” in Louisiana “from moment of fertilization,” in Maine to the “unborn child,” in Minnesota to the “unborn child [which] means the unborn offspring of a human being conceived, but not yet [*561] born” (Minn.. State §609.266 (2005)), in Missouri and Nebraska to the “unborn child [which] means an individual member of the species Homo sapiens, at any stage of development in utero” (§R.R.S. Neb. 28-3289 (2005)), in North Dakota to the “unborn child [which] means the conceived but not yet born offspring of a human being” (N.D. Cent. Code, § 12.1-17.1-01 (2006)), in Ohio to the “unborn member of the species homo sapiens,” in Oklahoma to the “unborn child” meaning the unborn offspring of human beings from the moment of conception, through pregnancy, and until birth including the human conceptus, zygote, morula, blastocyst, embryo and fetus (63 Old. St. § 1-730 (2005), in Pennsylvania to the “Unborn child” and “fetus . . . . where each term shall mean an individual organism of the species homo sapiens from fertilization until live birth” (18 Pa.C.S. 3203 (2005)), in South Dakota to the “unborn child, an individual organism of the species homo sapiens from fertilization until live birth” (S.D. Codified Laws §22-1-2 (2006)), in Texas to “an unborn child at every stage of gestation from fertilization until birth,” in Utah to the “unborn child at any stage of its development” (Utah Code Ann. §76-5-20 1 (2006)), in Virginia to the “fetus,” and in Wisconsin to the “unborn child [which] means a human being from the time of conception until it is born alive” (Wis. Stat. §940.04 (2006).
Granted, in most instances of congressional or state-level legislation seeking to protect the fetus from third party harm, abortion rights are explicitly protected. However, even this is changing, as was evident when the Governor of South Dakota in 2006 signed into law the “South Dakota Women’s Health and Human Life Protection Act.” Section 1 of this Act explicitly couples restrictions on abortion in the same piece of legislation that defines unborn life to have the same rights as a born human being:
The Legislature accepts . . . the fact that each human being is totally unique immediately at fertilization . . . [and] that to fully protect . . . the rights, interests, and life of . . . [the] unborn child, abortions in South Dakota should be prohibited. Moreover, the Legislature finds that the guarantee of due process of law under the Constitution of South Dakota applies equally to born and unborn human beings, and that under the Constitution of South Dakota . . . [an] unborn child . . . possess[es] a natural and inalienable right to life.
This legislation was based upon a 70 page report by the South Dakota Task Force
to Study Abortion, which concluded that since ROE, there have been scientific advances in the understanding of when human life begins, and that it is now “a matter of scientific fact [that] an abortion terminates the life of a whole separate unique living human being.” Assuming, as does Beckwith, that what the fetus “is” determines abortion rights, the Task Force concluded and the Legislature and the Governor agreed that since the fetus “is” an unborn human being with the same rights as a born human beings, abortions must be all but prohibited. Hence, Section 2 of this Act reads:
No person may knowingly administer to, prescribe for, or procure for, or sell to any pregnant woman any medicine, drug, or other substance with the specific intent of causing or abetting the termination of the life of an unborn human being. No person may knowingly [*562] use or employ any instrument or procedure upon a pregnant woman with the specific intent of causing or abetting the termination of the life of an unborn human being.
It is notable, of course, that this legislation was subsequently rejected by the voters of South Dakota in a referendum. However, there is every reason to suppose that other states will follow suit and no reason to assume that voters in other states can be counted upon to negate such legislation by means of referenda. What is more, although ROE prohibited a state from using a legal definition of when life begins to prohibit abortion rights, how many of us believe the current Court would be bound by that caveat? To the contrary, it is more than likely that the current Court would seize the opportunity to uphold ROE, even while nullifying it by ruling that if and when a state defines the fetus to have the same rights as a born person in the context of abortion rights, then it is constitutional to prohibit abortions on the grounds that abortion rights should follow, not proceed, the definition of what the fetus “is.” Such a ruling would only modify, not overturn ROE, thereby allowing the Court to have its cake and eat it, too.
Philosophically: What the Fetus “Does”
Of course, as Beckwith notes, in addition to the privacy grounds for abortion rights as based on what the fetus “is,” there has been a long standing second prong, the self defense grounds for abortion rights, based on what the fetus “does.” Given the propensity since ROE in the legislative depiction of the fetus as a human being with similar, if not the same, rights as a born person, clearly, this is the prong that is going to be most relevant in the decades ahead. As first articulated by moral philosopher Judith Jarvis Thomson, two years before the ROE decision in her classic article, “In Defense of Abortion,” the question is not what the fetus “is,” but rather what the fetus “does.” In her famous scenario, she asks the reader to imagine what would happen if she woke up one morning to find herself attached to a famous violinist. This violinist will die if you disconnect him. Yet, his connection to you is so intrusive that it necessitates a destruction of your privacy and liberty, since he must accompany you everywhere for a prolonged period of time.
The moral question raised by Thomson was whether a person could disconnect – and, thus, kill – the violinist and still be a moral person. Her unequivocal answer was “yes.” While it would be a magnificent act of altruism to accept the massive intrusion of the violinist upon one’s body and liberty for a prolonged period of time to facilitate his survival, it is not necessary to go to such extremes of giving to be a moral person. Rather, such an act of altruism would be comparable to giving away most of your material resources so that others in the world who are starving might eat. It would, of course, be grandly moral to sacrifice oneself in this way to others in need, but such an extreme degree of self sacrifice is not required in order to be a moral person. Rather, one can eat well, including dinners at fancy restaurants, knowing full well that there are many, many people who are starving.
The analogy with abortion rights is obvious. A fetus intrudes upon the privacy and bodily integrity of a woman for a prolonged period of time. Even if [*563] the fetus is a human being and has a right to life, as would an attached violinist, the question is whether a woman must continue to allow the fetus to be attached to her in order to be a moral person? Or, can the woman detach herself from the fetus, knowing that by so doing she kills the fetus, and still remain a moral person? Thomson’s answer is that even if the fetus is a human being, the needs of the fetus are too great to require a woman to meet those needs as a condition for being moral. Rather, the woman may defend herself against nonconsensual intrusion of a fetus on her bodily integrity and liberty, just as she would have the right to defend herself against the nonconsensual intrusion of a violinist. Hence, a woman has a right of self-defense by means of an abortion in response to nonconsensual intrusion by a fetus, even or if the fetus is defined to be an unborn child.
Beckwith addresses the self-defense prong of the abortion debate based on what the fetus “does.” However, he does not do so with the same thoroughness, much less logical precision, as he does when addressing the privacy prong of abortion rights based on what the fetus “is.” The result is that this book is behind the times. In the years ahead, the issue in abortion rights will be more and more determined by what the fetus “does,” rather than what the fetus “is,” as states and the federal government continue the trend that endows the fetus with a status similar, if not equal to, that of a born person. And when it comes to what the fetus “does,” Beckwith has a long way to go even to come close to dealing with the fundamental moral, legal, and constitutional issues relevant to a woman’s right to defend herself from a fetus, should she refuse to consent to pregnancy, that is, should she refuse to consent to the massive changes in her body and liberty that result from the fetus.
Pregnancy: A condition in a woman’s body resulting from the fetus. Significantly, the Index of Beckwith’s book contains no entry for “pregnancy.” Yet, according to the American Bar Association, an abortion is the termination of pregnancy with an intention other than to produce a live birth or to remove a dead fetus. The very purpose of an abortion, therefore, is to terminate pregnancy. If there is no pregnant condition, there is no possibility of an abortion. How can any book about abortion rights, therefore, omit an Index reference to pregnancy? Rather, it would seem necessary to start with an understanding of what constitutes the condition of pregnancy that abortion terminates. To do so requires, at the outset, recognizing that in order for a woman to be pregnant, a fetus must be growing in – that is, using – her body. Without the fetus’s use of her body, no woman is ever pregnant. To stop the condition of pregnancy in a woman’s body, therefore, requires stopping the fetus from using her body to maintain its own growth and development, which given current technology requires removing it from her body, either by means of childbirth, a miscarriage, or an abortion. It is not until the fetus stops using a woman’s body that her body returns to a non-pregnant condition. Hence, pregnancy is a condition in a woman’s body necessarily resulting from one and only one thing: the presence of the fetus in her body. [*564]
More than a presence. It is not as if the fetus is a passive presence in a woman’s body, however, something that she merely carries around with her for a period of nine months. To the contrary, the pregnant condition resulting from the fetus consists of a massive transformation that entails dramatic changes in every system of her body. In a medically normal pregnancy, for example, a new organ, the placenta, grows in a woman’s body in response to the presence of the fetus; by about the 30th week of pregnancy, blood volume increases by about 50%; red blood cell mass increases by 20-30%; cardiac output is 30-40% higher than in a non-pregnant state during the first 3 months of pregnancy; the heart becomes enlarged and displaced to the left as a result of the way the enlarging uterus displaces the diaphragm; lung volume progressively decreases by as much as 20% from the middle to the second trimester of pregnancy; respiratory rate increases by 15% (2-3 breaths per minute); the enlarging uterus displaces the stomach and intestines from a horizontal to a vertical position; the gallbladder becomes hypotonic with slower and less complete emptying, which can result in gallstone formation due to the thickening of the bile; all metabolic functions increase during pregnancy in order to provide for the demands of the fetus, placenta, and uterus, and a pregnant woman from a metabolic standpoint can be described as living in a state of “accelerated starvation” due to the nutritional needs/demands of the growing fetus; renal plasma and flow increase to a level of 50-60% higher than in a non-pregnant state; and the endocrine system undergoes massive change as the pituitary gland, for example, enlarges by about 135% during pregnancy, prolactin levels increase tenfold, and other hormones increase double, triple, and quadruple their base levels.
Even in a medically normal pregnancy, therefore, what the fetus “does” is a very big deal. The key issue, therefore, is what justifies the fetus’s massive transformation of a woman’s body? Clearly, the fact that the fetus has no conscious intentions and cannot control what it does gives it no justification to impose itself on others, since no born person lacking mens rea has such a right. Similarly, the fact that the woman consented to sexual intercourse as an act prior to her condition of pregnancy gives the fetus no justification to impose itself on the body of its mother, since born children have no such right. Once born, for example, no state in the country requires a biological parent to donate even a pint of blood to a needy child, much less organs or other body parts. Hence, even after a woman has consented to sex, has consented to be pregnant, and has consented to be the parent of her born child, the parental duty to care for her offspring does not include the duty to donate her body. Pro-life advocates demand that the unborn child be treated in the same way as a born child. This would mean that since the duty to care for a born child does not include donating one’s body to it, then neither does the duty to care for an unborn child include the donation of one’s body. What is more, if a born child or someone acting on behalf of a born child were to take a body part from a parent without consent, the government would support the right of the parent to be free of such imposition, not the child’s right to impose on a parent’s body without consent. Applying that [*565] principle to an unborn child that imposes on a woman’s body without consent means that the government would support the right of a woman to be free of such imposition – that is, the government would support abortion rights.
The only answer, therefore, to the question of what justifies the massive transformation of a woman’s body resulting from the fetus is the woman’s consent. If a woman consents to the pregnant condition resulting from the fetus, then the way it massively transforms her body is permissible. If, on the other hand, a woman does not consent to the way it transforms her body, the fetus is imposing massive injury upon the woman. This is because morality and the law both stipulate that the key to defining injury is consent. If a surgeon performs an operation that saves a patient’s life, that surgery is presumably a wonderful event, if and when the patient consented to the surgery. Without the patient’s consent, that same surgery is a serious injury.
Nonconsensual pregnancy, therefore, just like nonconsensual sexual intercourse (rape), constitutes serious injury. Beckwith recognizes the use of this analogy by those, such as myself, who have written about abortion rights from the perspective of what the fetus “does,” but he misrepresents our views. For example, he claims that I compare “pregnancy to rape” (p.176), when, in fact, what I compare is nonconsensual pregnancy to rape. I do not assume that all pregnancies are nonconsensual any more than I assume that all sexual intercourse is nonconsensual. Yet, he claims that “McDonagh’s understanding of pregnancy as morally equivalent to rape” leads to the conclusion that pregnancy is a prima facie wrong (p.176). That is not my position. My position is that nonconsensual pregnancy is a prima facie wrong just as nonconsensual sexual intercourse (rape) is a prima facie wrong. Beckwith is smart, so I can only speculate why he would so blatantly misrepresent the self-defense foundation for abortion rights. Could it be that he cannot refute it any other way?
The extent to which Beckwith fails to address the self-defense argument for abortion rights is evident in his following hypothetical. He asks the reader to imagine a situation where a young woman involved in a car accident arrives comatose at the hospital, where she is examined by a doctor. The doctor determines that she is pregnant and that neither the woman nor her friends are aware of her condition. According to Beckwith, the self-defense argument for abortion rights as represented in my work and others, is that “pregnancy is a prima facie violation of the woman’s bodily integrity,” and, thus, the physician is “morally required to perform an abortion to rid his patient of the ‘massive intrusion’ being imposed upon her by the unborn” (p.176). As noted above, of course, the self-defense argument for abortion rights prescribes no such thing. The crucial point is not whether the woman or her friends know whether she is pregnant, but rather whether the woman consents to be pregnant. Even if the comatose woman is the victim of rape, for example, that fact alone does not tell us whether she consents to be pregnant. Granted she did not consent to sexual intercourse, but we do not know whether she consents to the subsequent condition of pregnancy. [*566] Perhaps she is a Beckwith devotee, a pro-lifer who would consent to be pregnant regardless of whether she was raped. We simply do not know. And without knowledge of whether pregnancy is consensual, the only morally and legally required action is to find out if she did, or most likely would, consent to pregnancy. Only after it is established whether her pregnancy is consensual (or not), can any other decision be made about maintaining or terminating her pregnancy.
Beckwith introduces rape in the context of an unconscious woman with the following scenario. Suppose you enter the hospital room with the same comatose woman and find “a man having sex” with her and “you correctly intervene to stop the ugly violation.” He contends that the quickness with which a person would stop the sex in this example compared to the way a person might allow the comatose woman to continue to be pregnant by refraining from intervening proves that “pregnancy is in fact a prima facie good” (p.177). In fact, that scenario proves nothing of the sort. The reason a person would stop a man from having sexual intercourse with a comatose woman is because, by definition, we would assume that this form of sexual intercourse is occurring without the woman’s consent, as defined by her comatose state. Without consent, that form of sexual intercourse is serious injury (rape), and that is why people would be morally and legally correct to stop it.
In sum, Beckwith has written a careful and meticulous treatise about why the fetus should have a personhood status equal to that of a born human being from the moment of conception. This is exactly where legislation is heading, and his book may bolster those efforts. However, if so, the self-defense argument for abortion rights will become even more important, for its power is that it preserves abortion rights for women – including abortion funding – “even if” the fetus is a person. The more that pro-life people succeed in securing a personhood status for the fetus, the more important the self-defense argument for abortion rights becomes. And yet it is precisely the self-defense argument where Beckwith’s book falls short. The fact that he miserably misrepresents the self-defense argument, despite his erudite and scholarly analysis elsewhere in the book, gives me hope – abortion rights partisan that I am – that the self-defense argument is so strong and inviolable that it stymies even the best of the pro-life advocates, such as Francis Beckwith.
ROE v. WADE, 410 U.S. 113 (1973).
WEBSTER v. REPRODUCTIVE HEALTH SERVICES, 492 U.S. 490 (1989).
© Copyright 2008 by the author, Eileen McDonagh.