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Fetal Viability and Maternal Rights

A couple of months ago, I said something about abortion on Dogma Debate that I wanted to repeat and expand upon here. I’d just written a couple of posts about abortion, and David Smalley thought that would be a good controversial topic. As a challenge to my position (basically, make abortion cheap and easy to get), fetal viability was brought up. It turned out we didn’t have much to argue about. In fact, the matter seemed so straightforward to me that I’m surprised I don’t see it presented this way more often.

The fetal viability question is one of when human life begins. It recognizes that, no, human life does not start at conception, that a fertilized egg is not a human being. Jean Kazez had an amusing take on that argument today.

At conception, what exists is a single-celled zygote.  That zygote contains the makings of not just the embryo (fetus, etc.), but of all the structures that will support the embryo (fetus, etc.)–the placenta, amniotic fluid, etc.  Imagine (only somewhat analogously) a very full box you take off the shelf at Ikea (with great effort!). The box contains the makings of a bed, but also instructions, tools, packaging, styrofoam, etc.  You take it home and put together the bed, discarding everything else.  Would you say the bed started its lifespan as the full box? No, of course not.  There is no bed until a bed has started to take form and become separate from everything else that was in the box.  And at the point, it really makes no sense to say “the bed was once the full box.”

Those concerned with fetal viability also don’t feel it’s reasonable to declare that human life begins at birth. I don’t know anyone who does believe that, no matter their position on abortion, but maybe there are a few. Or maybe it’s an anti-abortion strawman.

Either way, the viability position notes that, at some point, a fetus becomes capable of existing outside the womb, even if it currently resides, much more safely and cheaply, still inside the womb. At that point, it should be considered a fully human life and be accorded the rights of any other human being.

I understand that position. It is at least as logically compelling as any other and far more compelling than many. However, accepting this position is not an argument for outlawing abortion of a viable fetus. It is an argument for when a fetus achieves rights as a human being.

It is not an argument for when a pregnant person loses their rights.

Let me show you a couple of graphs. This one shows (roughly) the rights of the pregnant person and the rights of the fetus throughout a pregnancy based on a period of time during which the fetus can be considered to grow more likely to be viable outside the womb, based on the argument from viability.

Line graph of 0% to 100% of human rights. Pregnant person's line remains at 100% throughout pregnancy. Fetus's line grows from 0% to 100% during the 6th and 7th months of pregnancy.

Now let me show you another graph.

Line graph of 0% to 100% of human rights. Fetus's line grows from 0% to 100% during the 6th and 7th months of pregnancy. Pregnant person's rights drop from 100% to 0% over the same period.

This graph is the argument from viability as it is used politically. It is the argument that once the fetus has rights, the pregnant person no longer does. They no longer have any say in how their body is used. They no longer have any right to say that pregnancy is not in their interests–medical, emotional, social, or financial. They have no rights at all in the matter.

That’s what a law banning third-trimester abortions does. It assigns 100% of the rights to the fetus, not 50%.

So how do we protect the rights that a fetus does have in these situations? That’s a good question, but frankly, it’s a medical question. The fetus may be theoretically independent of the pregnant person, but that doesn’t mean they’re actually independent. It’s still inside the womb, and every means of getting it out carries risks to both parties. What risks vary greatly from pregnancy to pregnancy.

Consider also that the reason many people stop wanting to be pregnant at this point is that the fetus is less than healthy, which may translate into less than viable. Balancing rights and risks of both parties simply isn’t something that can be done in the general case. If we are truly interested in protecting everyone’s rights, this stays a private, medical matter informed by the conscience and situation of the pregnant person making the decision.

The abortion can’t happen without a consultation with medical personnel who have a strong interest in making sure any decision is informed and considered. There is no basis for us to intrude.

Unless, of course, you’re one of those people who really don’t think pregnant women should have any rights.

Comments

  1. Kes says

    What infuriates me about the “personhood” bullshit being used to ban late-term abortions is that it completely slide the reason for late term abortions in the first place. Nearly all third trimester abortions a done because the life of the mother is in imminent danger or the fetus has a catastrophic birth defect that was undetectable before or the pregnancy is in danger and will eventually kill the fetus, the mother or both. In all those cases, post 20-week bans force women to carry to term unviable pregnancies and/or die. These are medical situations, and the law has no place intervening in them.

  2. says

    This also raises another sticky question. If viability determines when life begins, is it ethical for a woman to, say, have labor induced at, oh, 6 or 7 months? (Keeping in mind the long list of complications and disabilities resulting from a early birth.)

  3. jefrir says

    I strongly suspect that, if abortions were cheaply and easily available, the difference between abortion being legal at any point, versus only being legal after viability in the case of fetal death or disability or a threat to the life or health of the mother, would be vitually nothing. Because women are not in fact stupid, and are therefore not going to remain pregnant for 6-9 months and then decide on a whim to have an abortion. Late stage abortions are not birth control, at least in the vast majority of cases. They happen when something has gone significantly wrong.

  4. says

    It should be noted that the issue viability was a part of the Roe decision in 1973. Although the original framework was slightly modified in the 1989 ruling Webster v. Reproductive Health Services, it remains the law of the land that states cannot interfere with a woman’s right to chose abortion before viability. Since Webster, though, a state can mandate tests for viability.

    It is also interesting to note that Roe protects women against state-mandated abortions. It seems very odd nowadays, but from the 1920s into the 1960s, many states had eugenics laws that forbade women in prisons and mental institutions, and those showing “socially undesireable traits” such as Downs Syndrome, from having children. If such women became pregnant, for any reason, the state could order its termination regardless of the wishes of the people involved.

  5. gwen says

    WMDKitty, a woman can’t decide to ‘have labor induced’ at 6 or 7 months, there are time limits–even in the states with the least restrictive laws. Women deliver at 6 or 7 months because they have gone into preterm labor we can’t stop, or the mother has developed a condition risking her life, usually an infection or eclampsia, or if it is a nonviable pregnancy or something is found to be extremely wrong with the fetus.
    I firmly believe in a woman’s right to choose whether or not to have a child. I can’t believe a woman giving birth to an unwanted infant would make the best possible parent, and there are many reasons NOT to have a child, foremost being that the woman doesn’t want to.

  6. cassmorrison says

    @jefrir – you can look at Canada’s to see the effect of termination being available at any point in the pregnancy.

  7. says

    At that point, it should be considered a fully human life and be accorded the rights of any other human being.

    Fine, it gets granted 100% of the rights all other human people have to my body, which is zero.

    Actually, I’m sick and tired of all the hypothetical scenarios people then want to come up with:
    What about women wanting labour induced at 7 months, what about late term abortions, what about Slutty McSlut, what about…
    Stop fucking doing that.
    You’re causing harm, real harm.
    Why are pregnancies terminated in the thrid trimester? Usually because you actually don’t want a life outcome. It’s not about fetal viability, it’s about actually wanting to kill the fetus. Why? Because something has gone seriously wrong. Because the child you wanted so much, for whom you bought onesies and little toys, and a book with lullabies will never be.
    Have you ever sat there, holding your pregnant belly and googled Potter’s Syndrome because while the doctors can’t tell you what is actually the case, they can tell you that this is the worst case?
    No? I have. Thankfully the worst case hasn’t come true for me. It does for others. When you discuss some “fetal viability, 7 months yadda yadda” scenarios, you’re discussing those people’s fates.
    You’re talking about women who needed to have their pregnancies ended quickly because HELLP was killing them, who had to watch their children die in the hospital because neonatal ICU can only do so much.
    You’re talking about women whose labour can’t be stopped at 7 months, who then spend months more or less living in hospitals caring for their tiny premies.
    You discuss all their fates as some hypothtical, philosophical thought experiment.
    “Should women be allowed to have labour induced at 7 months?”
    Sorry, but what kind of brute, stupid animals do think women are? Flimsy creatures with fluffy pink brains who are too stupid to realize that this will actually cause great harm to the fetus to be baby and therefore just decide such a thing at a whim and need to be controlled in their decisions by somebody else because they’re clearly not able to make such a decision themselves.
    Yeah, because after having been pregnant for a whomping 7 months and investing a shitload of resources and risking a lot for that fetus already, women will just ask to be induced because they really can’t be bothered anymore and would like to have a brain-damaged baby now please.
    How about finally accepting that women are quite able to make their decisions themselves, thank you.
    Safe, legal and none of your fucking business.

  8. says

    Hey, I’m not condoning “whoops, I’m two months from my due date, let’s induce now for shits and giggles”. (Cause, you know, DUH.)

    I’m just exploring, here.

    Say we have a normal, so-far-healthy pregnancy, right on the verge of viability.

    Something goes seriously wrong, putting the mother’s life in danger if the pregnancy continues. Not an immediate danger, but the longer the pregnancy continues, the higher the risk.

    Do you err on the side of the mother, or do you try to keep the pregnancy going as long as possible to give the fetus a better chance of survival? (Assuming hospitalization is an option.)

    It seems to me that the most ethical thing to do is for the woman to consult with her doctor(s), weigh the risks, and make the choice herself.

    More importantly, “viability” keeps getting pushed back — they’ve saved preemies born around 5 months gestation. Which, wow, amazing, yes, but… at what point do we take into consideration the sometimes-severe complications of premature birth? At what point do we say, “It’s better to have a child with severe disabilities than it is to let a fetus die”? Do we have the right to inflict such an existence on a person just because we have the technology to keep a fetus alive outside the womb?

    I’m not saying “kill the disabled babies” or anything — I’m just wondering if it’s really humane to save extremely premature infants.

  9. says

    WMDKitty

    Hey, I’m not condoning “whoops, I’m two months from my due date, let’s induce now for shits and giggles”. (Cause, you know, DUH.)

    You’re not condoning it?
    A) Why do you actually assume that such a thing hapens?
    B) Who asked for your opinion other than in the case of your own pregnancy?
    Your very need to discuss these imaginary immoral shits and giggles women is deeply anti-woman.

    I’m just exploring, here.

    You’re just exploring the actual lives and tragedies and choices of actual women with actual feelings and an actual history.
    Stop that shit.
    It’s exactly the same bullshit we’Re getting from “nominal pro-choicers” all the time:
    “Hey, I’m totally on your side, I’m pro choice, really, but let me just explore this hypothetical scenario in which I get the control over your body. Why are you so angry?”

    Do you err on the side of the mother, or do you try to keep the pregnancy going as long as possible to give the fetus a better chance of survival? (Assuming hospitalization is an option.)

    You?
    You keep the pregnancy going?
    There is no “you”. There’s only the pregnant woman, maybe her partner, and her doctor. That’s not the “most ethical thing”, it’s the only ethical thing. They don’t need you personally to explore their situation and condone whatever they decide.

    I’m not saying “kill the disabled babies” or anything — I’m just wondering if it’s really humane to save extremely premature infants.

    How about you leave that decision to the people who are actually in that situation, because it actually IS something that happens to people, it’s the situation in which parents get a diagnosis that means they must decide whether to abort or carry to term, which is a situation in which parents find themselves when their premie is born and the doctors ask them whether they should start emergency care or not, which is a situation in which parents find themselveswhen doctors ask them whether they should stop or not.
    I guess they’re all very grateful for you exploring their situations and condemming or condoning whatever they do in what is possibly the worst moment in their whole lives, when actually they would prefer to be dead.

  10. eric says

    it gets granted 100% of the rights all other human people have to my body, which is zero.

    That’s worth repeating.

    Take organ donation and add on the legal obligation for the donor to care for and financially support the recipient for 20 years, and you’ve got pregnancy. No sane person would say it was ethical to require such a donation.

  11. jesse says

    To expand a bit on Giliel’s point. My mother is an OBGYN. She has delivered some 3,000+ babies in her career.

    The way she puts it is simple: “Everyone has their own story.”

    That’s why the default is that abortions are always legal, always safe, and always available whenever they are needed. Because you never know what the situation is, medically speaking. You can’t mess around with that. Imagine if people had this idea that you can legally only treat cancer or broken legs or typhus up to a certain point, or in certain circumstances with certain techniques. You’d have exceptions to that because everyone’s story is different.

    FFS, this isn’t such a hard concept. For every weird hypothetical that WMDKitty brings up I can think of half a dozen that necessitate terminating a pregnancy ASAP, sometimes in the third trimester. That option simply has to be available, and it has to be a medical decision. The ethics enter the decision only in terms of saving people’s freaking lives.

    The idea that anyone gets a third-trimester abortion just because they don’t want to have the kid all of a sudden is simply ludicrous. And the idea that someone might induce labor early equally so. Why would anyone do that? “Hey, this kid needs to be born premature so I can make my hair appointment?” WTF? It’s like asking why people don’t just amputate a limb for the hell of it or perform appendectomies at home.

    Or, as my mother puts it, it’s all about control and not seeing women as people.

  12. sawells says

    Shorter version of everything. Even if you think late-term abortion is a terrible moral dilemma, it is not _your_ terrible moral dilemma unless _you_ are the pregnant one.

    Sometimes I feel like everyone who raises an abortion-restriction argument should just get a kidney removed for donation on the spot. Because I’m sure somebody else can use that kidney, and why should you get to choose what to do with your own organs?

  13. Christopher Stephens says

    I would even go farther than the unassembled-furnature-in-a-box analogy, and compare an embryo to nothing more than the technical blueprint of the furniture. After all, none of the material that will be made into the eventual baby/fetus/thing is even present at that point.

    Due to the personhood question, I’m firmly pro-choice up to and including birth, entirely at the whim of the woman in question. However, I admit that the “a fetus is a person, but still has no right to a woman’s body and can be killed on that basis” argument looks like a terrible argument.

    The comparisons to mandatory organ donation miss a really obvious and vital fact: That the fetus (hypothetically a person) is in mortal danger directly due to the action of the mother (and father, which has a whole mess of other implications). If my actions directly threatened another person’s life, and the only possible way to save that life would be for me to donate a kidney, then yeah, it’s not unreasonable to make that donation mandatory.

    Plus, well, a child obviously does have rights to their parent(s) body or bodies, like the right to be provided food, shelter, clothes, medical care, etc. The notion that no one ever has any rights or moral authority over another person’s body is flatly wrong on the face of it.

  14. says

    Plus, well, a child obviously does have rights to their parent(s) body or bodies, like the right to be provided food, shelter, clothes, medical care, etc. The notion that no one ever has any rights or moral authority over another person’s body is flatly wrong on the face of it.

    Uhm, no.
    Well, my kids have demands on THINGS against me, not my body. I don’t have donate them a kidney if they need one and I don’t have to sell one to feed them. Also, I can put them up for adoption which severs all legal bonds between us.

  15. Christopher Stephens says

    Stephanie, I am from the U.S. We’ve actually met at Skepticon, though I believe I successfully refrained from faboying too much. Why do you ask?

    Giliell, it seems to me that there’s a difference of degree, but not of type. Providing one’s children with food, clothing, etc. requires a parent’s time, effort, and money, which entails the use of one’s body. Obviously having children is a tremendous cost and effort (or burden, depending on one’s perspective), and requires a huge portion of a parent’s life, though it doesn’t really carry the health risks of pregnancy and birth.

    And putting one’s existing children up for adoption doesn’t kill them, obviously. Since there is no such option in the case of pregnancy, if a born child is using their parent(s), and thus their parent’s body, to acquire food, clothing, etc., would it be ethically reasonable to kill the child in the name of their parent’s bodily autonomy? Or at least to simply stop providing for the child?

  16. says

    Christopher Stevens
    You seem to not understand the basic concept of bodily autonomy and the difference between having to provide things vs. a body.
    If I were stinking rich I could provide all the things my children need without ever lifting a finger. It’s not a difference in degree but principle.
    Maybe you should educate yourself a bit on that concept.

  17. Christopher Stephens says

    Um, I don’t think that a request to “educate myself” is relevant here, since there doesn’t seem to be an aspect of the conversation that is clearly above my head. Obviously you have no obligation to respond to me; I can always look elsewhere.

    If someone were stinking rich, they could hire a surrogate mother. The fact that only the richest of the rich have the financial power to exchange money for sheer physical time and effort involved in parenting (or the physical risk of pregnancy) underscores my point. For anyone not filthy rich, being a parent involves the near-constant use of one’s body, for no material compensation.

    I agree that there is a degree of difference between the use of a parent’s body for pregnancy, and the use of a parent’s body for the parenting of a born child (mostly due to the possibility for actual bodily injury and death). But that difference isn’t nearly enough to justify the huge gulf between “the fetal person is using my body directly, so I can kill it at a whim” and “the child is using my body only indirectly (though for all of it’s needs, an enormous amount of my time, effort, and money), so I have to continue providing for it.”

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