The Rights of the Fetus and the Principle of Bodily Autonomy
The Rights of the Fetus
The fetus is treated very inconsistently by U.S. law today, and not just in abortion situations. For example, the fetus can inherit property. If a pregnant mother dies before or in childbirth, but the fetus survives and is born alive, courts have decided that the child can inherit property along with other living siblings, and the state will appoint guardians for the child if needed.[1]
The fetus can be the victim of personal injuries in assaults in thirty-eight states. For example, in November 2014, in California, Scott Peterson was convicted of the first degree murder of his wife Laci and the second degree murder of their unborn son Connor.[2] In November 2017, in Texas, Devin Patrick Kelley committed a gun massacre at First Baptist Church in Sutherland, Texas, murdering 26 people, including Crystal Holcombe and her unborn child, who was at eight months of gestation and was counted as a person among the victims.[3] The federal Unborn Victims of Violence Act of 2004 makes a motorist guilty of two homicides in motor vehicle accidents when both a pregnant mother and the fetus in her womb die, even if that woman was on her way to abort her fetus.
The fetus’s life legally overrides its mother’s “religious freedom” interest in refusing blood transfusions if she is a Jehovah’s Witness. In 1964, the New Jersey court, in Fitkin Memorial Hospital v. Anderson, decreed that a pregnant woman who was a Jehovah’s Witness did not have the right to refuse a blood transfusion when doctors believed that the procedure would preserve the life of the fetus she carried. The 1985 In re Jamaica Hospital case in New York’s State Supreme Court decided the same. The New York court recognized the mother’s right to an abortion at that stage in her pregnancy, but maintained that in the circumstance where the mother was in need of a blood transfusion for another emergency reason, the state’s significant interest in protecting a midterm fetus’s life outweighed her religious beliefs against blood transfusions.
Under such laws, fetuses could have their interests defended against poisoning from lead in drinking water, biotoxin exposure, etc. as much as alcohol and other substances. In a helpful law journal article, Robin Trindel highlights numerous examples of courts that have even upheld children’s legal suits against a defendant “for prenatal injuries where the defendant’s negligence occurred prior to the child’s conception.”[4] For example, in Renslow v. Mennonite Hospital (1977), a minor daughter who was also incompetent, represented by her mother, successfully sued a hospital for administering an improper blood transfusion to the mother eight years prior to her getting pregnant. The Rh incompatibility in the mother’s blood caused brain, nervous system, and organ damage to her daughter.[5] A similar case occurred in Bergstreser v. Mitchell (8th Cir. 1978), concerning a child being adversely affected by the doctors who administered a Caesarian section improperly to her mother for her previous child. In Jorgensen v. Meade Johnson Laboratories, Inc. (10th Cir. 1973), deformed twin infants, represented by their parents, successfully sued a birth control drug manufacturer for their condition, which included mental retardation, physical deformity, pain, and suffering.[6]
The Curlender v. Bio-Science Laboratories (1980) case in California surprised many because a child successfully sued for a “wrongful life” cause. She was in constant pain from Tay-Sachs disease. She had been conceived because her parents had relied on the company’s assurances that their genetic tests were accurate and that their child would not have genetic complications. Whereas parents had been able to sue on the grounds of a wrongful birth cause, this was the first time in U.S. legal history where a child won a case on the grounds that she should not exist—that is, of a wrongful life. Observers in many fields registered their alarm at what Curlender meant for the legal jeopardy of science and medical professionals.[7] Taking that one step further, can a child sue the society into which it was born because it was born into poverty?
We should note, meanwhile, that in other areas of law, fetuses do not count as legal persons. A pregnant woman cannot drive in the carpool lane because she carries a fetus. In vitro fertilization clinics storing fertilized eggs do not count extra legal persons living at their address. The U.S. census does not count fetuses. Miscarriages do not count as legal deaths. Not many churches have funerals for miscarriages. No one shows an interest in monitoring fertilized eggs which do not implant in the mother’s uterine wall.
Fetuses are not U.S. citizens until they are born, according to the Fourteenth Amendment, so technically they are undocumented. If undocumented persons can be accorded rights, then can the fetus of an undocumented Mexican woman use a proxy to sue the U.S. federal government for deporting both it and its mother? Can one person’s lack of documentation (the mother) serve as the basis for deporting another person (the fetus) who was not personally guilty of the act of crossing the U.S. border illegally? Can other people in the undocumented category, moreover, acquire rights akin to the rights of an undocumented fetus? Why or why not? Despite the fact that many legal rights are accorded to fetuses on account of their parents, or sometimes against their parents, no pro-life advocate, to my knowledge, has argued that being conceived on American soil, or being present on American soil at any time during gestation, might qualify one to be a U.S. citizen with all the rights accorded thereof.
From what scientific studies have shown, it seems like a combination of Advil, coffee, and cigarettes will have as high a probability of causing a spontaneous abortion as an intra-uterine device (IUD). Is that a concern? Tobacco contains chemicals that are toxic for embryos: nicotine, carbon monoxide, and mutagens. One study found that for every 10 cigarettes per day smoked by a pregnant woman, her risk of miscarriage increases by 20 percent.[8] One study shows that paternal tobacco use noticeably increases the rate of miscarriage because tobacco impacts sperm health. In 2009, Blanco-Muñoz et al. found that a father who smokes and a mother who does not are three times more likely to have a spontaneous abortion than a non-smoking couple.[9] Would limiting tobacco use to post-menopausal women and post-vasectomy men be a desirable policy proposal?
Wisdom and common sense suggest that mother and fetus must be treated as a dyad, whenever possible. As both conservatives and liberals have accused American law of being schizophrenic, both parties might find some common ground over some of these issues. But on the other hand, bigger worldview questions may be at stake which prevent reaching more common ground without examining those worldview questions. There may not be easy resolutions to these conundrums because the mother-fetus relationship expresses a claim on one body by potentially two persons. As of today, fetuses continue to fall into an ambiguous category in the law, and I am not confident these ambiguities will ever be smoothed out.
The Principle of Bodily Autonomy
In law, bodily autonomy is the principle that upholds your right to not be forced to donate your organ, blood, or marrow even if you are the only person who could save another by doing so. Wouldn’t bodily autonomy mean, then, that a woman does not have to donate her uterus to the fetus, even though she is the only person who could save the fetus? Why must a pregnant woman be forced to let a fetus grow in her womb when she doesn’t want to become its mother?
Bodily autonomy is the reason why moral conservatives often make exceptions for rape, incest, or risks to the mother’s life and health. If the woman did not have bodily autonomy when she got pregnant, then she has at least some moral justification to abort the fetus. If the woman’s life becomes endangered by the pregnancy, as presumably that was not something she expects or welcomes, then her bodily autonomy is jeopardized and she has a moral justification for an abortion.
Yet, how far does the principle of “bodily autonomy” give a mother authority over the fetus? A pregnant woman ought not to drink alcohol and risk passing down fetal alcohol syndrome to her baby, for instance. Why do we frown on, limit, and sometimes shame pregnant women who do that, but look the other away if she gets an abortion? And why does her authority vanish the moment her child is outside her body? Granted there are fetal abnormalities that can be detected in the third trimester which complicate life expectancy or quality of life expectations, which might impact an abortion decision. But in the absence of that complication, consider the following incidents: In February 2016, an adult woman gave birth in the bathroom of a Subway restaurant and abandoned her baby.[10] In April 2008, a 14 year old girl delivered her baby in her junior high school bathroom and drowned her newborn baby in the toilet.[11] If it is wrong to kill a newborn baby, then is it wrong to kill that baby one week before it is born? One month? In U.S. law, “bodily autonomy” has no validity when an adult wishes to be freed from the demands of a child. Why exactly does the baby’s location distinguish between homicide or murder (infanticide) on the one hand, and late-term abortion done for the purpose of birth control, on the other?
On the flip side, there are some anti-abortion activists who apply the principle of bodily autonomy to the fetus before the mother, and this poses its own moral questions. Is it really feasible to legally force a woman to bear the child of her rapist, for instance? Advocates for the no-exceptions position claim that the fetus is only in the womb of its mother for nine months, so assuming a physically healthy delivery, the continued bodily existence of the fetus carries more moral weight than the hormonal disruption, bodily changes, inconveniences, and labor pains of the mother. This type of reasoning demonstrates a willingness to use consequentialist reasoning in conjunction with “bodily autonomy” as a principle.
On the other hand, if anti-abortion advocates are willing to so undervalue bodily autonomy for women relative to the fetus, then why not for men relative to women? Why not make vasectomies mandatory for men from a prepubescent age? Given that a vasectomy is reversible, when a man decides he is ready to become a father, he can get the procedure reversed and avoid unintended pregnancies. If a vasectomied man rapes a woman, he couldn’t get her pregnant, which is quite significant. In fact, the point should not be lost on anyone that much anti-abortion discourse pays disproportionate attention to women as opposed to men. Why is this? After all, if a woman has sex with a hundred men, she could only get pregnant once; but if a man has sex with a hundred women, he could get all one hundred of them pregnant. But the political feasibility of mass vasectomies aside, most opponents of this idea would insist that bodily autonomy can only be set aside for grave moral reasons, and we cannot assume that, on an individual level, every man will cause an unwanted pregnancy. Nevertheless, on a population level, thousands, if not hundreds of thousands, of unwanted pregnancies will be avoided. A vasectomy, as a reminder, is not only a minor procedure, but reversible.
Complicating matters further is the recognition that “bodily autonomy” has moral limits in other areas of life. During the COVID-19 pandemic, many people on the political right, and a few on the left, rejected vaccination mandates through employers, and other efforts to contain the spread of the coronavirus. The right of a person to bodily autonomy was pitted against the right of an employer to foster a safe work environment for other workers and customers. Or against the risk of contagion, especially for immuno-compromised people. But a surprising argument was published on March 19, 2020. David Rivkin, a conservative attorney and consultant, along with Charles Stimson, a senior fellow at the Heritage Foundation, explained in the Wall Street Journal that governors did in fact have wide emergency powers. States possess police power and have primary responsibility for public health. Therefore, they can impose a quarantine or isolation, and call in the National Guard to enforce the order. Rivkin and Stimson cited Jacobson v. Massachusetts (1905), when the Supreme Court ruled in a 7–2 decision that a state order to be vaccinated was constitutional, and that Henning Jacobson, who refused to be vaccinated, was guilty of breaking state law. Justice John Marshall Harlan wrote: “The Constitution does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint . . . A community has the right to protect itself against an epidemic.”[12]
My point here is not to explore the legal foundations and limits of any particular case, but to highlight how our bodies are constantly involved in moral tradeoffs and competing frameworks. There are tensions between freedom and direct harm and diffused risks of harm. People debate definitions of harm and risk, and levels of vulnerability and disability. Also, we live in larger narrative frameworks that give meaning to our relations and our bodies.
It is vitally important to consider that in our capitalist society, corporations market products to us by promoting a sense of individualistic bodily autonomy, especially to young adults and youth. This surely influences our moral perceptions. Shouldn’t you be the one who decides to dress, paint, tattoo, or pierce your body, suggest the commercials? Shouldn’t you be the one who decides to get liposuction on your body, inject plastic into your body, put hair on and take hair off your body? Shouldn’t you be the one who decides when to have sex, and who to have sex with? Shouldn’t you be the one who decides when to have a baby, and whether to have an abortion? Isn’t it because it’s your body? As long as we are talking about mature adults who are in their right mind, isn’t it obvious and self-evident that your body is yours alone? The culture of late stage capitalism would certainly like us to believe that.
In reality, “bodily autonomy” is constantly negotiated and qualified. Consider how long-term life partners share responsibility for their bodies. A wife feels uncomfortable and somewhat betrayed that her husband watches pornography and masturbates to it. He says, “Look, I’m not having sex with other women, or catching some disease and risking your health. Plus, it’s my body, and it’s not getting in the way of our sex life.” And yet something about that doesn’t quite feel right, does it? His hypothalamus produces the attachment hormone oxytocin; he is directing that attachment to porn stars on the screen. Moreover, he is habituating himself to instrumentalizing women for sexual pleasure, exercising the same part of his brain that he uses when he sees tools like an electric drill. Does a wife have a claim on the thoughts and oxytocin of her husband? And more broadly, choices do become habits, and habits do form character, as both neuroscience and virtue ethics tell us. We are human beings and human becomings. Does a wife not have a claim on the kind of person her husband is becoming?
Variations on this situation abound. Because people commit to caring for each other even into old age, do they have a claim on each other’s bodies? A woman tells her husband to exercise because she worries about her husband’s family history of heart attacks; a man tells his wife to take more calcium because she had an eating disorder as a teenager, increasing the ordinary female risk for osteoporosis.
People do not just nurture and harm each other directly; we share the same environment and negotiate risks and visions of human flourishing and responsibility to one another. In the same restaurant, doesn’t one person’s lung health make a claim on another person’s cigarette smoking? On the same planet, doesn’t one country’s vulnerability to hurricanes and sea-level rise make a claim on another country’s fossil fuel usage?
In her New York Times op-ed, “Dobbs, Roe and the Myth of ‘Bodily Autonomy’,” Anglican priest Tish Harrison Warren argues that using the term “forced gestation” for even the mildest of abortion restrictions is misleading, even blameshifting.[13] She points out that the state does not force people to have sex; people do that with varying degrees of freedom and coercion, deception and informed consent. The state does not impose upon sexual partners the risk of producing human life; biology does that. She does advocate for more bodily protections for women, and probably contraceptive care and so on. Warren says that we should expect the state to protect us from the malicious and careless choices of other people, but we cannot expect that the state can totally liberate us from biology. To which I would add: Even if the state were to permit abortions, the state cannot guarantee you that a doctor willing to perform an abortion at any stage of gestation would live and work nearby.
What Policies Can Do, and How People’s Beliefs Impact Them
In the U.S. the anti-abortion movement is undeniably Christian, but from different parts of the Christian community at different times, and for different reasons. It has taken different shapes and been connected to different issues. We must understand why they have advocated for the policies they have, and what values and stories motivate their positions. How does the Christian tradition understand the fetus, abortion, the body, relations, harm, and so on?
I believe there are deeply overlooked opportunities to adjust their values and stories. I also believe there are reasons for why this most recent iteration of the anti-abortion movement has suffered from ignorance and misunderstanding, not only of Scripture, but policies and what they can accomplish.
[1] Trindel, Robin M. “Fetal Interests vs. Material Rights: Is the State Going Too Far?” Akron Law Review 24 (3&4): 743–4. 1990–1991. https://ideaexchange.uakron.edu/cgi/viewcontent.cgi?article=1618&context=akronlawreview .
[2] CNN Editorial Research. “Scott Peterson Fast Trial Facts.” CNN. April 20, 2020. https://www.cnn.com/2013/10/15/us/scott-peterson-trial-fast-facts/index.html.
[3] Sanders, Linly. “When Does Life Begin? Pregnant Woman’s Unborn Child Counted Among 26 Killed in Texas Shooting.” Newsweek. November 8, 2017. https://www.newsweek.com/why-are-fetuses-included-mass-shooting-death-tolls-705928.
[4] Trindel, “Fetal Interests,” 746.
[5] Renslow v. Mennonite Hospital 67 III. 2d 348, 367 N.E.2d 1250 (1977). https://law.justia.com/cases/illinois/supreme-court/1977/48782-6.html.
[6] Jorgensen v. Meade Johnson Laboratories, Inc., 483 F.2d 237 (10th Cir. 1973). https://casetext.com/case/jorgensen-v-meade-johnson-laboratories-inc-2.
[7] Marsh, Frank H. “Prenatal screening and “wrongful life”: Medicine's new “Catch-22”?” American Journal of Obstetrics and Gynecology 143(7): 745–8. August 1, 1982. https://www.sciencedirect.com/science/article/abs/pii/0002937882900035
[8] Armstrong, B.G. and A.D. McDonald, M. Sloan. “Cigarette, alcohol, and coffee consumption and spontaneous abortion.” American Journal of Public Health 82 (January 1992): 85–87. https://www.ncbi.nlm.nih.gov/pubmed/1536340/.
[9] Blanco-Muñoz, Julia et al. “Exposure to Maternal and Paternal Tobacco Consumption and Risk of Spontaneous Abortion.” Public Health Reports 124: 317–22. March–April 2009. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2646489/.
[10] Josh Hafner, “Police: Woman abandons baby in toilet at Subway after giving birth in restroom,” USA Today, February 16, 2016; https://www.usatoday.com/story/news/nation-now/2016/02/16/woman-abandons-child-toilet-subway-after-giving-birth-restroom/80474390/.
[11] ABC News, “Baby drowned in jr. high bathroom toilet,” ABC News, April 3, 2008; https://abc13.com/archive/6057161/.
[12] Rivkin Jr., David B. and Charles Stimson. “A Constitutional Guide to Emergency Powers.” Wall Street Journal. March 19, 2020. https://justourfreedom.wordpress.com/2020/03/22/a-constitutional-guide-to-emergency-powers/.
[13] Warren, Tish Harrison, “Dobbs, Roe and the Myth of ‘Bodily Autonomy’.” New York Times, June 26, 2022. https://www.nytimes.com/2022/06/26/opinion/dobbs-roe-autonomy.html.