Rethinking Roe v. Wade: Defending the Abortion Right in the Face of Contemporary Opposition

Abstract

In 2008, many states sought to pass Human Life Amendments, which would extend the definition of personhood to encompass newly fertilized eggs. If such an amendment were to pass, Roe v. Wade, as currently defended by the Supreme Court, may be repealed. Consequently, it is necessary to defend the right to an abortion in a manner that succeeds even if a Human Life Amendment successfully passes. J.J. Thomson's argument in “A Defense of Abortion” successfully achieves this. Her argument is especially strong when one considers that her central thesis—that one person's right to life does not entail the right to use another's person's body for continued sustenance—is pervasive in legal policies in the U.S.A.

Keywords:

• abortion
• feminist ethics
• moral theory
• philosophy

Notes

1. For Colorado's initiative, see: Colorado for Equal Rights. 2008. Personhood ‘08: Colorado. Available at: http://www.coloradoforequalrights.com. (accessed November 25, 2008). For Montana's initiative, see: Life for Montana. 2008. The Montana Personhood Amendment. Available at http://www.life2008.org. (accessed November 25, 2008).

²It may seem, at first, that I am overstating the future danger of Roe being overturned, given that these Human Life Amendments have thus far failed to pass. Moreover, it may be argued, even if a few states did successfully pass such an amendment, it is unlikely that this would create a large effect at the Supreme Court level. In reference to the first concern, one need only to look at the recent debates in California and Arizona over the passing of Constitutional amendments that ban same-sex marriage. In Arizona, the successful passing of Proposition 102 in 2008 came after a similar bill was defeated in 2006. In California, Proposition 8 passed even after same-sex marriage had been legalized in the state. This illustrates that, even if a certain proposition fails to pass in one election year, individuals who are committed to these causes will continue to put them forth until they are successfully passed. In reference to the second concern, I remind my reader that it only took one married interracial couple, Mildred and Richard Loving, to get Virginia's Racial Integrity Act overturned and, consequently, end all race-based marriage restrictions in the United Stated of America (Loving v. Virginia, 1967).

³While it may be argued that what the justices rejected was a categorical right to bodily autonomy, they no where return to the argument in any fashion, not even by appealing to a prima facie right to bodily autonomy, in order to defend their decision.

⁴Another way the right to privacy manifests itself in Roe is by protecting women from state interference regarding important life decisions.

⁵Which, according to Roe, is only a concern from the second trimester onward. While this health consideration may have been an issue in 1973, when Roe was decided, it is far less so now, since abortion procedures have become safer well into the second trimester.

⁶One thing to note is that those who desire to eradicate abortion rights seem more willing to respect the wishes of a dead person, who may not have wanted his bodily autonomy violated after his death, even if it entailed donating organs that may save the lives of many persons, than the wishes of a live woman concerning whether she wants to use her body to gestate a fetus.

⁷I should note here that Regan is a legal scholar who would seem to support the claim I am making in this article: that Thomson's main thesis can be successfully translated into a legal policy that retains abortion rights even if the fetus were granted personhood from conception.

⁸An example of arguments of this sort can be found in David Boonin's A Defense of Abortion (2003. New York: Cambridge University Press: 167–188) and also in his article “A Defense of “A Defense of Abortion”: On the Responsibility Objection to Thomson's Argument” (1997. Ethics 107.2: 286–313).

⁹I doubt that Thomson is arguing against this claim, since doing so would lead to a patently false conclusion. There are plenty of situations in which voluntarily engaging in a known risky activity renders someone morally responsible for outcomes that thereby ensue. For example, a drunk driver is certainly morally responsible to some extent if he crashes into a car and injures another.

¹⁰Tooley does not explain what he means by “otherwise desirable,” but given that a healthy infant, as well as a disabled infant, lacks the cognitive capacities he (and Warren and Singer) argue is requisite for personhood, it follows from his argument that there is nothing intrinsically objectionable about infanticide for any reason.

¹¹For example, few would contest that, at least given our capitalist way of life, I have a right to use the money I earn in any (legal) manner I see fit. Nevertheless, it does not follow that every exercise of this right is a virtuous, decent, or responsible one. It would certainly be unvirtuous, for example, to gamble away ten dollars on a frivolous bet when there is a hungry homeless person next to me who would have benefited from a hot meal. Although my use of the ten dollars in such a manner would not be unjust, since the homeless individual has no right to my money, it is certainly morally indecent to ignore the suffering of the hungry in order to satisfy my desire for the momentary excitement that comes from placing the bet.

¹²See The 2007 Children's Defense Fund scorecard at: http://www.childrensdefense.org/child-research-data-publications/data/2007-cdfac-congressional-scorecard.pdf