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The Liberal Principle

Often translated into the language of ‘women’s rights’, the Liberal Principle is not an argument in itself, but rather the conclusion to an argument about the interplay of a fetus’s supposed right to life and a woman’s interests in aborting. The conclusion resolves the abortion question permissively. The moral and legal right to an abortion, it is suggested, can just be read off the right to control one’s reproductive

Arguments about Abortion: Personhood, Morality, and Law. First Edition. Kate Greasley. © K. Greasley 2017. Published 2017 by Oxford University Press.

destiny, or to control one’s body in general, and cannot be defeated by a fetus’s interest in life, even if it were identical in strength to that of a fully realized person.

The landmark US Supreme Court judgment in Roe v Wade, which recognized a qualified constitutional right to termination of pregnancy, could be viewed by some as the paradigm legal instantiation of the Liberal Principle.1 Roe recognized that the right to reproductive control contained within the Fourteenth Amendment right to privacy was ‘broad enough to encompass the right to a termination’, albeit this right could be restricted by ‘compelling state interests’, including, in the second trimester, the interest in protecting women’s health, and, in the third trimester, in protecting fetal life.[1] [2] A first look at the decision in Roe may give the impression that the Supreme Court’s decision (and the later affirmation of its central ruling in Planned Parenthood v Casey[3]) was the legal analogue of the ethical principle outlined above: that a woman’s right to bodily autonomy and reproductive control wins out over the fetus’s right to life, whatever the moral status of the fetus is believed to be.

That reading would not be accurate, however. This is because the Roe Court’s rejection of Texas’s submission that a fetus was a constitutional person within the meaning of the Fourteenth Amendment was in fact a material part of its reasoning through to the abortion right.[4] [5] Delivering the majority opinion, Justice Blackmun made it unmistakably clear that if Texas’s contention in favour of fetal personhood were accepted, the fetus’s right to life would consequently be guaranteed by the Constitution and incapable of being abrogated by a pregnant woman’s competing right to privacy.5 In an illuminating footnote to this part of the opinion, Justice Blackmun elaborated that if, as Texas contended, the fetus were a constitutional person, then that state’s own exceptions to abortion prohibition, which permitted abortion to save the life of the pregnant woman, would be rendered incoherent, along with those of its criminal laws that fixed a lesser maximum penalty for abortion than for murder.6

By underscoring these apparent discrepancies, Justice Blackmun cast doubt on the authenticity of Texas’s conviction that the fetus really is a person in the philosophical sense. More to the point, however, his remarks about constitutional personhood meant that the Roe decision itself did not reflect the sorts of abortion rights arguments which seek to displace the relevance of fetal personhood. It was the very opposite of them. Despite their protestations that ‘the difficult question of when life begins’ on which those trained in medicine, philosophy, and theology could not agree was not a question for the judiciary to answer,[6] the majority Justices were clear that the attribution of constitutional personhood to the fetus would be a death-blow to abortion rights. As Justice Blackmun conceded in an integral part of the judgment, if fetal ‘personhood is established, the appellant’s case, of course, collapses, for the fetus’s right to life would then be guaranteed specifically by the [Fourteenth] Amendment’. As the Court saw it, then, the abortion right could not survive a finding that the fetus really was equal in moral status to born human beings. Was it correct to determine thus?

Returning to the ethical dispute, the most influential argument in favour of the Liberal Principle comes in the form of an analogy put forward by Judith Jarvis Thomson, now famous (or, depending on one’s perspective, infamous) in modern moral philosophy.[7] A discussion of that analogy will dominate much of this chapter and the next, since it forms the basis of a number of arguments that might be used to substantiate the Liberal Principle. If the ‘women’s rights’ claims succeed on all of their own terms, recognition of fetal personhood would not dictate any significant moral restrictions on abortion, if any at all. Such claims therefore warrant extensive consideration.

I shall be proposing that the main versions of those arguments fail on their stated terms. That is, they fail to show that, on the assumption that a fetus is a person, abortion is permissible according to general principles of morality that we can and do accept, and, in the legal context, according to principles of the already existing legal framework.

A qualification should be added here. While I doubt the correctness of the Liberal Principle (as I have stated it) as the basis for abortion rights, even the success of that principle might not completely defeat the relevance of the personhood question. For one, we may still need to make a determination about the moral status of the fetus to even know that ‘women’s rights’ justifications were needed to defend abortion morally. If a fetus is nothing like a person in any case, with no strong moral rights, then it is not clear that pregnant women are even called upon to cite an important, superseding right of their own in order to justify terminating a pregnancy. There is an implicit acknowledgement in Thomson’s position, and by those who argue likewise, that if a fetus is a person, then abortion is something that at least calls for a defence. Furthermore, even if we were convinced by the thrust of the Liberal Principle, it would still be necessary to ask whether the arguments substantiating it justify abortion in all cases, at all stages of pregnancy, and by all available methods if the fetus is a person. In other words, if even some qualifications remain on which abortions are morally and legally permissible, given fetal personhood, then we will need to decide the independent moral standing of the fetus in many instances in order to correctly map the ethical and legal situation.

  • [1] Roe v Wade 410 US 113 (1973).
  • [2] ibid. The constitutional understanding of the notion of ‘privacy’, which US law uses in a slightlyunconventional sense, pertains to the right to control aspects of one’s personal life free from state interference, particularly in relation to the sorts of choices that have profound implications for one’s senseof personal identity, such as whether or not to become a parent. (See Griswold v Connecticut 381 US479 (1965) and Eisenstadt v Baird405 US 438 (1972), both of which the Supreme Court relied uponwhen invoking the right to privacy in Roe.)
  • [3] Planned Parenthood of Southeastern Pennsylvania v Casey 505 US 833 (1992).
  • [4] Justice Blackmun summarized the legal position with his remark that ‘the unborn have never beenrecognized in the law as persons in the whole sense’ (ibid 162).
  • [5] Roe v Wade (n 1) 156—7. 6 ibid 157, n 54.
  • [6] ibid 159. Justice Blackmun surmised that ‘we need not resolve the difficult question of when lifebegins. When those trained in the respective disciplines of medicine, philosophy and theology areunable to arrive at a consensus, the judiciary, at this point in the development of man’s knowledge, isnot in a position to speculate as to the answer’.
  • [7] Judith Jarvis Thomson, ‘A Defense of Abortion’ [1971] 1 Philosophy and Public Affairs 47.
 
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