What Makes a Fetus a Person?

KEVIN HARRIS: Bill, perhaps we should all brush up on arguments for why we are opposed to abortion on demand. This article^[1] in the New York Times by legal scholar Erika Bachiochi argues that it is the personhood of the fetus that is most important. Do you think that is the main issue?

DR. CRAIG: I think the way that she defines the personhood of the fetus does make this the issue. She is equating here persons with human beings because that's the way the U.S. Constitution uses the expression. So she's not making a philosophical point about when does a human being count as a person. She's equating human beings with persons, and in that case I think it is the humanity of the fetus that is the really key question here.

KEVIN HARRIS: She says,

Dobbs v. Jackson Women’s Health Organization has returned the issue of abortion to legislatures. There, pro-lifers will work to ensure that unborn children in every jurisdiction are protected by law. Though individual states can (and already have) sought to protect the most vulnerable human beings through ordinary legislation, constitutional protection of unborn children as equal “persons” under the law remains the movement’s ultimate — if elusive — goal.

Making this constitutional case will require rejecting the concept that a rights-bearing person is fundamentally self-owning and autonomous. Indeed, it is precisely the unborn child’s state of existential dependence upon its mother, not its autonomy, that makes it especially entitled to care, nurture and legal protection too. To exclude some human beings from the law’s protection because of their size, location and state of dependency (and post Roe, whichever jurisdiction their mother happens to be in) seems to pro-lifers an egregious human rights violation, just the kind we believe the 14th Amendment was meant to prevent.

She’s saying that it is not necessarily the unborn child’s autonomy that is at issue, but the unborn child’s uttery dependency on its mother that most entitles it to care and protection. Further down she says,

My fellow pro-lifers and I will also need to make the case to expectant mothers, and fathers too, that their unborn children are, like the rest of us, dependent and needy persons — not expendable property.

DR. CRAIG: I think this is a really interesting emphasis by this author. She's saying it's not simply the autonomy of the fetus that is at stake here. Certainly that is important. It is biomedical nonsense to say that the fetus is part of the woman's body. Rather this is an autonomous human organism growing inside the mother's uterus much like a human being that's hooked up to a life support system. The baby as it develops is hooked up to the mother as a sort of life support system. So even though it is autonomous in the sense that it is an individual human being in its own right, nevertheless, as she says, it's not independent. On the contrary, it is existentially dependent upon the mother, and that makes it especially entitled to care and nurture and legal protection. It's not just its autonomy, but its vulnerability and its dependency that entitles it to such care and protection. I remember in my civics class as a boy we learned that Abraham Lincoln said that it was the purpose of government to protect those who cannot protect themselves. When you think about it, there is no one that is more helpless, more defenseless, than a child in utero. Utterly dependent upon the mother and us for care and legal protection. So I think she's quite right in emphasizing this existential dependence as a very important factor in why the developing fetus is entitled to such care and protection.

KEVIN HARRIS: The article continues,

In the way Americans have argued about abortion over the decades, a standoff exists between the rights-bearing autonomous person — who, as the Dobbs dissent argues, “owns” her own pregnant body — versus the fetus that she might view as impinging on that autonomy. . . .

Americans have an understanding of property rights, deriving from the philosophy of John Locke, as absolute and unlimited. Today, leftists reject this view of property rights as applied to the economy yet, paradoxically, embrace it as applied to a pregnant woman and her unborn child. Indeed, explicitly employing the terms of American property law, abortion-rights supporters often liken the unwelcome fetus to a trespasser or invader, and the welcome one to an invited guest. The right to keep another off one’s property, employing the use of force as necessary, is basic to the Locke-inspired property rights paradigm in the United States.

It also occurred to me that leftists are in favor of mandatory vaccinations but then will argue my-body-my-choice when it comes to abortion on demand.

DR. CRAIG: Interesting – isn't it? – as this author points out how the language of property rights is applied by abortion proponents to a woman and her body and the fetus then regarded as part of her body and therefore her property to dispose of as she wishes. I think, of course, that's just nonsense. The fetus is not to be regarded as mere property; it is an autonomous human being invested with intrinsic value and therefore basic human rights. I think in overturning Roe v. Wade the court acted in accord with the precedent set when the court overturned the Dred Scott decision which also treated a certain class of human beings (namely blacks in America) as mere property – mere chattel – and therefore within the rights of their owners and not fully human. So, again, the Roe v. Wade decision had the practice of dehumanizing a whole category of human beings and placing them in the realm of mere property which is, I think, completely misguided.

KEVIN HARRIS: Continuing the article,

In the years before Roe, the pro-life case was more straightforward. As the historian Daniel Williams has shown in his magisterial “Defenders of the Unborn,” the pro-life movement in the late 1960s originated as a campaign promoting human rights. The message was that every human being has a right to life by virtue of being human. Human life, human being and human person were used interchangeably among pro-lifers . . .

Indeed, that equivalence between a human being and a human person, historically speaking, is what scholarly proponents of fetal personhood lean on to defend their originalist constitutional claims that “person” in the 14th Amendment includes unborn human beings.

Are we seeing a need for both a philosophical definition and a legal definition of personhood?

DR. CRAIG: Well, I think there's no doubt that both of these issues are going to need to be discussed. But she's quite right in saying that the pro-life movement was treating human life, human being, human person as interchangeable terms, and so what was critical here (and is critical, I think) is the humanity of the developing fetus. Is this a human being? It seems to me that that's just indisputable biomedically. This is not a canine embryo, not a feline embryo, not a bovine embryo. It is a human embryo and a human fetus, and then a human child. So I don't see any reason to try to make this distinction between human rights and and person rights, though philosophically I do think there's an issue to be discussed here.

KEVIN HARRIS: The article continues,

But with the 14th Amendment jurisprudence of Roe and especially the 1992 Planned Parenthood v. Casey ruling came the focus on the personal autonomy of women seeking abortions, which implicitly demoted the legal status of their unborn children. . . . Women’s autonomy — or absolute self-ownership — required the right to exclude her child from her body. Furthermore, Casey claimed, as the dissent in Dobbs underscores, that such autonomy was necessary for women’s equal participation in economic and social life.

Just to summarize the article, she cites,

The 18th-century English philosopher Mary Wollstonecraft, author of “A Vindication of the Rights of Woman,” . . . sought civil and political rights so they might better fulfill their responsibilities to others.

As Wollstonecraft reasoned, both men and women have moral responsibilities to others and should be free to fulfill those responsibilities. She said responsibilities for a child do not begin “when the child was born, but when he or she was still developing in the mother’s womb.” This makes the my-body-my-choice lingo sound rather selfish, doesn’t it?

DR. CRAIG: Oh, I think it certainly does. I love the way she associates this with thinking of one's body in terms of property rights. When she says that the pro-abortion movement wanted the woman to have the right to exclude the developing fetus from her body, what she really means is the right to expel that fetus from her body – to exterminate it. But this is based upon the idea that it is in a sense included in her body as part of her property and therefore is at her disposal to treat as she wishes. So along with emphasizing the autonomy of women, there needs to be an equal emphasis upon the autonomy of the developing fetus as a human being in its own right invested with intrinsic moral value and therefore with fundamental human rights. As I say, we need to distinguish between autonomy and independence. The fetus is an autonomous human being but it is existentially dependent upon the mother as a life support system and therefore as the most vulnerable in our society entitled to the care and nurture and protection of others.

KEVIN HARRIS: Here is how the article concludes,

Without robust societal support of pregnant women and child-rearing families, too many women will be left to regard their unborn children as trespassers on their already taxed lives rather than unbidden gifts that open new horizons to them. These women need society’s utmost assistance — not abortion, or scorn.

Summary, Bill? Then we will quickly look at some letters to the editor that are in response to this article.

DR. CRAIG: I think what she's emphasizing here is that a consistent pro-life response is not simply anti-abortion. It is pro-mother, pro-child, and wants to provide the kind of care and services that these young mothers need to carry their child to term and to raise it or to offer it for adoption. Certainly a consistent pro-life position will be one that is committed to the nurture and care of the mother and child alike.

KEVIN HARRIS: We will look at three letters in response written to the New York Times in response to this article.

To the editor: I must challenge Miss Bachiochi’s insistence on referring to an embryo or fetus as an unborn child. Pregnancy begins with a small cluster of undifferentiated cells that are not in fact a child. The anti-choice movement calls it a child because it is essential to their argument, but calling it so does not make it so. At term, that small cluster has definitely grown into an unborn child. Somewhere on the continuum of fetal development it is reasonable to say it has become a person. That moment of personhood is perhaps difficult to define but Roe at least made the effort. Given the enormous consequences to the mother, it is important that we give her the right to choose her own well-being for some period of time over that which is not yet an unborn child.

DR. CRAIG: He's using the word “child” here to indicate a stage of human development. We might differentiate between, for example, a baby, a child, an adolescent, and an adult. Certainly these are different stages. A child is not an adult. An adolescent is not an infant. But nevertheless all of these are stages of human development, and if I'm right then this individual in its early stages of development (whether as a fetus, which simply means a little one, or as an embryo) are human beings and therefore have intrinsic moral value. Just because a human being is not in the child stage does not mean that it is no longer a human being and therefore no longer valuable. But in any case, the writer of this letter does recognize that at some point during the pregnancy we are dealing with an unborn child. Photography in utero has revealed the unbelievable development of these little ones with their tiny fingers and toes, their facial expressions, even sucking on their thumbs. It's just impossible, I think, to deny that we're dealing here with human beings. Whether you want to call it a child or not is simply a matter of where you make the division of the stages. This author of this letter doesn't support abortion on demand. He wants to say that at some point we are dealing with a human child and that therefore it would be immoral to terminate its existence. So he has already, I think, abandoned the position under Roe v Wade and Casey v. Planned Parenthood which allowed abortion right up until the moment of birth.

KEVIN HARRIS: The next letter says,

To the editor: Here's a question for Erika Bachiochi. You are a nurse in a hospital and the fire alarm goes off. On the corridor to the right is an incubator with five embryos. On the corridor to the left is a room with a week-old child. You only have time to go down one corridor. Which do you choose? If you believe that we attain personhood at the moment of conception then of course you elect to save the embryos. But would you?

DR. CRAIG: This is a typical moral dilemma that you will find in textbooks in ethics courses. These are sort of stock in trade. For example, whom do you kick out of the lifeboat, or who should be expected to leave the lifeboat if it only has room for a certain number of people? Someone has to be given up or all will perish. Sometimes these kinds of moral dilemmas occur in real life. For example, in the aftermath of a mass shooting or terrorist attack, first responders have to carry out triage on the victims to determine which ones to give their medical attention to because they cannot attend to them all. There are just too many. So they will try to determine which of the victims that are dying have the best chance of survival. They will actually pass over the others in order to provide medical attention to those victims that have the best chance of being saved, and they let the others die. So these kinds of moral dilemmas are very real. Now, the fact that these first responders overlook some of the victims and leave them to die doesn't imply that they're non-human, does it? It's just saying that there are different priorities that are occasioned by which ones, for example, have the better chance at survival. In the case at hand here, if the one room has a child who is already a week old and is therefore actualized considerably its human potential, that child is quite different from embryos which have not yet actualized their human potential. One might well feel that it is more important to save the more fully actualized human being or that one has a moral obligation toward that more fully actualized human being than toward the embryos. But notice that doesn't imply that the embryos are therefore not human beings, that they're just mere trash to be discarded at will. So this argument doesn't really do anything to show that developing embryos or fetuses are not human beings and therefore are not valuable and worthy of protection. I put to him a different question. Suppose that you're a nurse and opposite the room where the week-old child is there's a lab containing 20 lab rats and you only have time to save either the lab rats or the embryos. Which one will you pick? Well, I think you would probably pick the embryos because the lab rats are non-human. In that sense that gives you a clear differentiation between the child and non-human animals. But in the case of the embryos, these are human embryos. These are human beings. So that doesn't apply. Rather, you will apply different moral guidelines to make the choice much as those first responders do in performing selective triage without implying that those who are left to die are not human.

KEVIN HARRIS: Then this letter,

I could only shake my head when I read this essay by the conservative Catholic legal scholar Erika Bachiochi. About 11.6 million children – the majority children of color – live in poverty. At the same time, as many as 13 million children live in food-insecure homes; that is, they and the other members of the family don't have enough to eat each day. These are living, breathing children with hopes, dreams, and pressing daily needs. I can only wonder how in God's name any rational caring person can spend the days stewing about the rights of the unborn when already there are far too many hungry, needy children in the United States, let alone in this world.

Bill?

DR. CRAIG: It just baffles me how any rational caring person can think that the solution to children living in poverty is to kill them – to exterminate them – before they are born so as to reduce the amount living in poverty. That seems to be an absolutely mad weighing of moral priorities. Rather, surely the answer is to help those in poverty but without neglecting to provide protections for the unborn children from wanton extermination. Abortion should never be used as an anti-poverty program. Indeed, he mentions the children of color. In one sense abortion is terribly racist in targeting the black population in the United States far more than, say, the white or Asian population. It could be seen as a means of racial control. So don’t talk to us about using abortion to try to solve problems of poverty and want. That is an utterly perverse weighing of moral priorities.^[2]