The discussion in the media in the wake of the leaked draft opinion making it plain that Roe v. Wade will fall has focused on the impact the decision will have on women who will lose the right to abortion in many states, the potential political impact of the decision, and what other rights may fall next. What’s missing is a discussion of the legal implications of taking the view of the fetus that was upheld in Justice Alito’s draft, that it is an “unborn human being,” i.e., a person.
Saying that fetal personhood is inconsistent with a right to abortion opens up deep moral tensions in the law. These tensions can be resolved in one of three ways. The right way to resolve these tensions is also something that we, as a society, need to examine.
The tensions result from an observation made by Judith Jarvis Thomson in 1971: if a woman is forced to carry a fetus to term—forced by threat of prosecution, either of abortion providers or perhaps of her—then she is forced to serve as the unwilling life support system for this other person. The problem is that the freedom not to have to serve others is a fundamental principle in our law.
The Thirteenth Amendment to the U.S. Constitution holds that “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” As Justice Hughes explained in 1911, in Bailey v. Alabama, “The plain intention [of the Thirteenth Amendment] was to… make labor free, by prohibiting that control by which the personal service of one man is disposed of or coerced for another’s benefit which is the essence of involuntary servitude.”
Forcing a woman to serve as the life support system for a fetus for up to nine months, when she does not want to do so, flatly runs up against this fundamental principle. The question is: are there other exceptions, other than that listed in the Thirteenth Amendment itself—as punishment for a crime—that can be defended.
Option 1: Revise two basic limits regarding service.
First limit: on specific performance.
One argument that is sometimes made on behalf of requiring women to carry a fetus to term is that parents have a general duty to care for their children. We require fathers to provide child support after a child is born even if the father would have wanted the pregnancy aborted or the child given up for adoption. If we can require fathers to care for children financially, then we can require women to carry them to term before choosing whether to raise them or give them up for adoption.
But there is a long-standing distinction in the law between requiring monetary payments, when the person has the means to make them, and providing specific performance. Child support payments are tied to the income of the father or, more broadly, the non-custodial parent. A father can be required to work to provide financial support for his children, but he cannot be forced to do some specific task. This is quite different from forcing a woman to carry a child in her body. The degrees of freedom left to fathers, to find a job that suits them, are qualitatively different from the specific, often dangerous performance of the “job” of carrying an unwanted fetus to term.
One might respond that specific performance is required of parents: they have to feed their children and take them to the doctor when they are sick. Failure to do these things can lead to charges as severe as murder if the child dies.
The problem with this response is that these specific, positive duties are contingent on being a custodial parent. At least in our society—and in the vision of Justice Barrett—parents should be free to choose whether to be custodial parents or not. If they give them up for adoption, then they lose all duties of care; if they choose not to play a custodial role but the other parent retains a custodial role, then they are responsible only for financial support. In other words, while it is true that parents can find themselves with duties of specific performance, that is only if they have chosen those duties.
Are we willing, then, to overturn the general ban on unchosen duties of specific performance?
Second limit: intrusions on bodily integrity
Bodily integrity is deeply important in the law. As Justice Cardozo wrote in the 1914, while still serving on the Court of Appeals of New York, in the case called Schloendorff v. Society of New York Hospital, “Every human being of adult years and sound mind has a right to determine what shall be done with his own body.”
But a woman forced to carry an unwanted pregnancy has to endure an unwanted physical intrusion in her body. To equate the service required of a woman who carries an unwanted child to that of a father who has to pay child support within his means overlooks not only the specific performance dimension, but the fact that an unwanted fetus constitutes a bodily intrusion.
If we wanted a better analog to pregnancy, it would be giving up a kidney—a serious intrusion into the body, with small but serious health risks involved. We do not now require fathers to give up a kidney to save a child who might need one.
Are we willing to require fathers to put their bodies on the line in the same way as mothers?
Option 2: Revision of the equality of the sexes
If we are not willing to make the two revisions just mentioned, there is another way to resolve the tensions raised by recognizing the fetuses are persons and concluding that pregnant women may not choose to abort them: abandon the assumption that women have the same rights as men. We could say again, as once was clearly said, that women are not equal citizens. If they become pregnant, they have to serve the interests of the fetus they carry whether they want to or not. They have to carry burdens that fathers would never be asked to carry for their children.
One who finds this appealing might say: yes, and men have their own burdens to carry. God, they might say, made men and women different; men are built to fight and protect the home, women are built to bear and nurture children. This is the natural order of things.
Let us not deny that this is a view that many find appealing. But it is a view greatly at odds with our modern, liberal, egalitarian conception of the law. It is a view closer to that of Gilead, the fictional dystopia in Margaret Atwood’s The Handmaid’s Tale than our current legal order.
Are we willing to cast aside our modern, liberal-egalitarian order for some variation on Gilead?
Option 3: Recognize the right to abort fetal persons
If we are unwilling to take options 1 or 2, the third option is to maintain the right to abortion.
Adopting this third option does not mean adopting the Roe framework, with its focus on fetal viability. It might allow the state to recognize the value of fetal life by, for example, giving women a limited time to decide whether they want to carry a fetus to term. If a woman discovers that she is pregnant and does not decide to abort within that window, then she has effectively chosen to bear a duty of specific performance. She thereby presumptively waives her right not to carry it to term.
This too would need further refinement, as unforeseen conditions might arise that should revive her right to abort. For example, she might discover that she suffers a medical condition that makes carrying the fetus to term vastly more difficult and dangerous than she expected. These details, too, should be part of our conversation.
But the bottom line is this: if we are unwilling to take option 1 or 2, some basic right to abortion should be retained even if we assume that fetuses are persons.