When Roe Falls (Guest Post by Alec Walen)

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.

21 Replies to “When Roe Falls (Guest Post by Alec Walen)

  1. Nice post Alec!

    Two thoughts about specific performance:

    1. I wonder if the draft is a case where we are ok with requiring specific performance, at least in the case of a clearly justified war of self defense?

    2. Also, what do you think about this case? You depart on a solitary 2 year spaceship voyage which you cannot cut short. You are going around Mars and back. Unbeknownst to you and through no negligence on your part, someone hid a 6 month old on your ship. You don’t discover this until after launch. I think I would be ok with you being legally required (by space law 🙂 to feed the child during the voyage. And that seems like a specific performance. So maybe it’s ok to require unchosen duties of specific performance when you are the only person who can save a life.

  2. This is an excellent post! It’s unfortunate that this aspect of Thomson’s famous defense of abortion is not more widely known or appreciated in the United States.

  3. “A father can be required to work to provide financial support for his children, but he cannot be forced to do some specific task.” Doubtful. A court can decline to alter financial obligations but that it not the power to force someone to work.
    More helpful analogies might lie in the (now defunct) draft or obligations of parents re medical or dental care of children.

  4. Thanks for the post. Great way to look at the issue, haven’t thought about it before.

    However, I would take issue with your framing of the problem as one of “involuntary servitude”. This seems to be the wrong way to look at the issue in the case of pregnancy that is non-rape (i.e., consensual sex causing pregnancy). In this case, the woman engages in an act which she knows can cause pregnancy. In that case, the duty to carry the fetus to term seems like a duty arising from a voluntary act. In the case of non-rape, one can’t wake up in the morning and say “Hey, I’m pregnant! How did this happen? I played no part in this! Therefore, I shouldn’t have to be placed in servitude to this fetus I had nothing to do with!” The woman (and man’s) voluntary act created the conditions requiring service.

    To use another analogy similar to your father/kidney example: It isn’t just that a father is merely asked to give a child a kidney; It is like a father who actually removed the child’s kidney himself (placing the child in the dependent position), AND is the only person in the world who can provide a kidney to the child. I think our intuitions would change about what duty this father would owe.

    There are other legal frameworks available to conceptualize the problem. Whereas your post is about the tension of mandating specific performance (a contractual remedy) which violates the 13th amendment in the instance of pregnancy, we could view this through the lens of tort law – i.e., duties owed to others. I think tort law is more appropriate, given that (1) there usually aren’t contracts involved in pregnancy; (2) the question is more about duties owed/not owed, then remedies for damages. Possible fertile ground in torts would include:
    – Duty to rescue: Though common law doesn’t usually require a duty to rescue, it can when the rescuer created the dangerous conditions in the first place.
    – Strict liability: Hold mother’s strictly liable for the pregnancy consequences of sexual activity, given the interests of the fetus

    Obviously, there are still HUGE issues around, e.g., fetal personhood, the asymmetric impact pregnancy and childrearing places on women, the duties owed by father, etc. that could harm the points made above. I just wanted to address the involuntary-servitude-as-framework point.

  5. Regarding Option 2 “revision of the equality of the sexes”. Is it not now considered the case that ability to become pregnant has nothing to do with whether one is a man or a woman?

    My understanding is that ability to become pregnant is now considered an anatomical quirk that is, somehow, incidentally and/or historically associated with womanhood.

    If that’s the correct view, does it make a difference to option 2 if the class of people who lose rights is not men vs women but rather just those people who may become pregnant? Are there other examples of mere anatomical differences leading to different rights?

  6. Two things:

    An unborn human being (Alito) is probably *not* a person, for reasons given by Mary Anne Warren. So Alito doesn’t need to be committed to that–he just needs to be committed to something well short of it, e.g., Don Marquis’ “future like ours”. (He also doesn’t need to be committed to “potential person”, for other reasons Warren gives.)

    Second, the most obvious response to Thomson’s servitude argument is a “responsibility argument”. And this is one reason Thomson’s article is less useful than it seems: we’re generally *not* in the violinist cases, but either in the expanding house (risk to woman), or people seeds (consensual sex, maybe with failed contraception). For Thomson, it doesn’t seem to matter whether the woman took on the risks of pregnancy willingly.

    Of course, Thomson hates this argument: she says, then what: are women supposed to never leave home, hire armies, or have hysterectomies, or they’re otherwise always “responsible”? Again, that response is the strongest in rape cases, but doesn’t track as well on the consensual cases. Or at least tracks differently.

    A lot of Thomson can get defused by allowing abortion in cases of rape or mother’s health. It doesn’t generalize particularly well beyond that, or at least hits obstacles.

    So I don’t think we’re constrained by your three options. Or that the servitude argument correctly describes many of the relevant situations–i.e., they can be distinguished by pointing somewhere in the ballpark of consent/responsibility/foreseeable risk. (Again, not all situations hang on these.)

    Thanks for the post, enjoyed reading it!

  7. States party to the UNCLOS impose on seafarers some duties of specific performance to assist in accordance with Article 98, Section 1:

    Every State shall require the master of a ship flying its flag, in so far as he can do so without serious danger to the ship, the crew or the passengers:
    (a) to render assistance to any person found at sea in danger of being lost;
    (b) to proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance, in so far as suchaction may reasonably be expected of him;
    (c) after a collision, to render assistance to the other ship, its crew and its passengers and, where possible, to inform the other ship of the name of his own ship, its port of registry and the nearest port at which it will call.

  8. I really appreciate all the comments. I’ll try to be as brief as possible in responding to each. First, by way of shameless self-promotion, I’ll say that I engaged with many of these points in an article I published 25 years ago called “Consensual Sex Without Assuming the Risk of Carrying an Unwanted Fetus; Another Foundation for the Right to an Abortion,” Brooklyn Law Review 63 (Winter 1997): 1051-1140. FWIW, I still stand by most of what I said there.

    To Philip: I agree that the draft is a potential objection. One could, of course, deny that it is morally defensible. I’m not sure where I sit on that. But even if it is, it is not service to ANOTHER. It is service to the collective, one which includes oneself. So I don’t think it makes for an easy counterexample. As for the space baby, I like the case! But what if the space baby required you to do more than feed it and change its diapers. That brings in prong two: intrusive bodily service. I think we wouldn’t require that one endure what a woman endures in pregnancy for the space baby.

    To J. Bogart: I am not an expert in family law, but I’ve heard stories of fathers facing jail time for not working as they are told they have to work, to provide child support. If that’s B.S., I’d be glad to know. As for your second point: yes, I make that point in the piece.

    To JB (who I assume ≠ J. Bogart): your point about consensual sex was the heart of my article from 25 years ago. But let’s be real. Most abortions are not sought by young women who partied without thinking about the possible consequences; they are sought by women with children, often in relationships. The question is: should we impose on women the choice: end all sexual relationships with men OR run the risk that your birth control might fail? That’s a harsh choice. It might be reasonable to impose it for the sake of fetal persons (if that’s what they are) if abortion harmed them. But then you have to ask that question: is it worse to be conceived and aborted than never to have been conceived at all? It seems that the answer is generally no. And if that’s right, then where’s the harm? If there’s no harm, then why impose the harsh choice on women? (see my article for a discussion of Boonin and others on this point). And I still think involuntary servitude is the right framework, even if tort-like points come up in the point just made.

    To Anonymous: The idea that pregnancy is only “incidentally and/or historically associated with womanhood” strikes me as bizarre. Yes, the S.Ct. chose, once upon a time, to discuss “pregnant people,” rather than women. And yes, not all women can become pregnant. But as far as I know, only women can become pregnant. Moreover, the view that would allow the sort of differential I have in mind in Option 2 IS embraced by those who are rather essentialist about gender differences.

    To Fritz: First, yes, I am inclined to agree that fetus are only beings with futures like ours. But the point of the argument is to see what follows if we concede that they ARE persons. Second, see my comment to JB.

    Finally, to Nicholas: see my response to Philip.

  9. What obligations do Siamese twins have to each other? Can the stronger one demand that the weaker one be killed? What about the reverse?

  10. Additional point to JB: I should have said, even if you win on the point that a woman who has consensual sex runs the risk that she’ll create a fetus, the thought that she’d therefore have an obligation to carry it to term should imply, if we’re to respect equality of the sexes, that fathers should be on the hook for organ donation if their children ever need them. So, in a sense, we don’t need to get into all the stuff about whether there’s a harm in conceiving and aborting a fetus: my point about the limits of obligations on fathers suffices… unless we’re willing to reconsider those.

  11. The growing usage of the term “pregnant people” rather than “pregnant women” is an acknowledgement of two recent trends:

    1. People who are anatomically, genetically, and often legally female but who identify as non-binary.

    2. People who were assigned female at birth, but have transitioned to male socially and even legally, but who have retained the desire and ability to bear children. I can’t find statistics for the US, but reportedly two dozen men a year give birth in the UK.

    There is even a Unicode emoji for a pregnant man.

  12. I truly wonder how long “pregnant people” will remain a viable term, in light of the evident great likelihood that SCOTUS will, in effect, unleash a revolution against abortion rights? That is to say, what is to prevent conservative state legislatures from otherwise restricting biological females’ reproductive rights, including the right of transgender males from becoming pregnant in the first place (sterilization as a requirement of legal sex identity changes in the states potentially in question)?

  13. Just a reminder of PEA Soup policy: All commenters must use their real (full) names, no anonymous comments, please. Own the argument.

  14. In response to Fritz A. above. You said Alito is not committed to fetuses being persons. But he must be committed to something in the vicinity. You suggested he could appeal to Marquis’ “futures like ours” account. According to this theory, it is wrong to kill a fetus because you deprive it of a future like ours. You can deprive the fetus this future whether or not the fetus is a genuine person. That is true. But as Walter Sinnott-Armstrong correctly points out in a response to Marquis, depriving the fetus of this future would be wrong only if it is assumed that the fetus is *morally entitled* to a future like ours. It is only wrong to deprive you of some future thing if you have some legitimate claim to it. But this hidden assumption hasn’t been shown at all. Why would a bunch of cells (speaking of early pregnancy here) be morally entitled to a future like ours? I don’t know. One reason to think that it is morally entitled is if the fetus is actually a person. But then we would be assuming the very claim we were trying to not assume. Marquis’s argument does not show what it purports to show.

  15. To Eleanor: I didn’t say that Alito is not committed fetuses being persons. I said that “I am inclined to agree [with Fritz] that fetus are only beings with futures like ours.” And I agree with your point that this does not mean that they automatically get the status of persons. In other words, sure, one can make the pro-choice argument on the grounds of fetal status. But, as I said to Fritz, “the point of [my] argument is to see what follows if we concede that they ARE persons.”

    To Betsy who asked about Siamese twins: I wouldn’t think that either could demand that the other be killed. The classic case, discussed in criminal law casebooks, involved twins the separation of which would allow the stronger to live and the weaker would die, but if they were not separated then both would soon die. So the separation was nearly a Pareto-improvement. In that situation, I think the state (UK) was right to order the separation. But if it’s more like two people hanging onto a plank in rough seas, a plank big enough to keep only 1 afloat, then I think they need to flip a coin or some such thing. Strength cannot, morally speaking, be the relevant choice criterion… unless the weaker one is too weak to hold on even if the strong lets go. In that case, the weak should let go as a matter of Pareto reasoning. (Odds make that REALLY tough… I don’t want to get into that morass.)

  16. Thanks for the post Alec; I find this a really nicely structured extrapolation of the basic Thomsonian point.

    For reasons somewhat similar to Philip’s, I find the specific performance prong a lot less plausible than bodily integrity prong. While there does seem to be a relation between the duty to feed and care for one’s children, and the freedom to give a child up for adoption; it seems implausible to think that the latter freedom is a condition on the former duty.

    Suppose I have a child that I intend to give up for adoption. But a flood destroys the only road between my farmstead and the adoption center. The best estimates suggest that it will take about a year for the road to be repaired. It seems implausible to think that my inability to put my child up for adoption cancels my current duty to feed and clothe my child. The ability to give a child up for adoption is not a condition on the duty of care. Rather, it is because parents have a burdensome duty of care that a society has reasons of justice to make available recourse to adoption services. This would in turn explain my rather strong intuition that societies without the resources to set up an adequate adoption system can still criminalize parental neglect—or similarly my strong intuition that should I find an infant left on my doorstep in the morning, it would not be unreasonable for the legal system to require me to take on the burden of care for the child at least until I can make other arranges on contact some government service.

  17. To Marshall (and Philip): I now concede the point! In fact, I just had a chance to meet Philip in person 2 days ago, and conceded the point to him in person (if it wasn’t clear enough from my response on May 11).

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