Proportional moral gravity
One of my conclusions in Part II was that the moral significance of human embodiment underpins the basic gradualist intuition that abortion is a more serious affair the later in gestation it occurs, as pregnancy progresses and the fetus becomes more of an embodied human being. In short, it is intelligible to treat late abortion as involving a more serious loss of value than early abortion, notwithstanding the fact that even a late fetus does not possess any of the core constitutive features of personhood. If this is right, the law may have a prima facie reason to reflect this gradualist-leaning ethic through its abortion regulation. This could be communicated in a number of ways, and not only, or necessarily, by placing greater restrictions on abortions carried out later on in pregnancy. At the very least, the increasing embodiment of the fetus provides the law with a reason, in addition to concerns for women’s health, to encourage early abortion over late abortion, and to abjure procedural requirements like mandatory waiting times, enforced counselling, and mandatory ultrasound if their net effect is only to delay abortions which will nevertheless take place.
Where abortion regulation is in place, demonstrating respect for human embodiment may require nothing more than that early and late abortions are broadly differentiated in a legal framework. A more complicated abortion law, fine-tuned to multiple phases of fetal development, may come at the expense of being too difficult to follow and undermining clarity in the law (particularly so given that dating pregnancies always involves a margin of error), without adding much in terms of vindicating the gradualist outlook.
Reflection on the moral significance of both human embodiment and separate embodiment in the world can also have implications for the use of viability as a milestone in abortion regulation. The standard of constitutional review of abortion restrictions endorsed in Casey and the permissions of the Abortion Act in Britain are alike in treating viability as a pivotal milestone for the purposes of the law. As we saw, the Casey requirement that abortion restrictions not impose an ‘undue burden’ on women seeking abortions applies only before the threshold of viability, with states being free to prohibit abortion post-viability so long as they allow for exceptions where the pregnancy threatens the woman’s life or health. Similarly, the British legislation places emphasis on the importance of viability by requiring more serious grounds for abortion after the lower threshold of viability which, when the Act was last amended, was thought to equate to twenty-four weeks of pregnancy.
In the conventional philosophical debate about personhood, we saw, viability is usually dismissed as tracking features that are inessential for personhood, such as independent breathing or living ability. However, where viability is taken to signify the current ability to live as a separately embodied being, then it may well track a development that is pertinent in our thinking about moral status. Viable fetuses are not yet in our world, but they are the sorts of beings which, if safely extracted rather than aborted, are capable of existing among us and of being included in distinctive human life. (At least, this is so where ‘viability’ denotes the point at which a human being is capable of living independently in the world and not the point at which extraordinary medical efforts can keep a child alive for a very short time only, in a state of severe dysfunction.) Defending the use of viability as a regulatory milestone need not imply the claim that independent living ability is a universal condition for personhood, but only that separate embodiment in the world is salient in our common understanding of personhood. If there is reason enough to endorse a time- limited abortion law, then pointing to this salience could justify incorporating the viability threshold into a legal framework.
-  For an explanation of another key procedural obstacle to early abortion contained in the provisions of the Abortion Act which requires that all abortion ‘treatment’ be carried out on medical premises, see Kate Greasley, ‘Medical Abortion and the “Golden Rule” of Statutory Interpretation’ (2011)19 Medical Law Review 314.