The Fetus Focus Fallacy

By Joyce Arthur, Pro-Choice Action Network

Pro-Choice Press, Spring 2005

Like never before, abortion rights are under threat today in the United States. A concerted 30-year campaign by the anti-choice movement has chipped away at a woman's right to control her life, and tried to turn the tables by focusing attention on the fetus. It looks like it's finally succeeded. In the aftermath of Bush's re-election victory in November 2004, Democrats started backing away from their commitment to abortion rights, and pro-choice leaders started talking about the need to recognize and respect the moral value of the fetus.[1] Do we really want to travel down this dangerous road?

American women are drowning in a sea of state and federal laws restricting abortion. Some of these laws recognize fetuses as persons deserving of protection, such as a new federal law that makes fetuses a separate victim when a pregnant woman is assaulted, and many state laws that criminalize pregnant women for engaging in behaviors that might harm their fetus. Although these laws specifically exempt legal abortion, that's a meaningless sop to the war-weary pro-choice movement, which allowed most of these laws to pass without a fight. Because if the Roe v. Wade decision legalizing abortion is overturned, as many predict, women can probably look forward to being prosecuted, jailed, and even executed for "murdering" their fetuses - something that could never have happened in the bad old days of illegal abortion when fetuses were still invisible to the eyes of the law.

Anti-choicers insist that the key question in the abortion debate is whether a fetus is a person or not. If so, abortion is murder, they say, and therefore obviously immoral and illegal. That is not the key question at all, of course - anti-choicers are committing the "fetus focus fallacy." The practice of abortion is unrelated to the status of the fetus - it hinges totally on the aspirations and needs of women. Women have abortions regardless of the law, regardless of the risk to their lives or health, regardless of the morality of abortion, and regardless of what the fetus may or may not be. On average, abortion rates do not differ substantially between countries where it's legal and countries where it's illegal.[2] Which reveals a more pertinent question: Do we provide women with safe legal abortions, or do we let them suffer and die from dangerous illegal abortions?

Some anti-choicers argue that even though women will have abortions regardless, that doesn't mean we should make abortion legal, since we don't legalize murder just because some people will commit murder anyway. This analogy fails because everyone in society agrees that murder is wrong and must be punished, but there is no such consensus on abortion. Second, very few people commit murder, but a majority of women will either have an abortion, or would have one if they experienced an unwanted pregnancy. As we learned from Prohibition (of alcohol), criminalizing behavior that large numbers of people engage in has disastrous consequences for public health and law and order.

The real key question behind the legality of abortion is: How much do we value women's rights and lives? Because focusing on the fetus always has dire legal and social consequences for women. It's also insulting to women because it usurps their moral decision-making, as well as their bodies and wombs. The best way by far to protect fetuses and children is to help pregnant women and mothers. When women have the necessary support and resources to raise kids, we can trust them to be good mothers. If women have liberty and equality, their mothering will also be willing, happy, and confident, which further benefits children. But as soon as we bestow special rights on fetuses, we separate them from their mothers and create an adversarial relationship that hurts both. For example, pregnant drug abusers tend to forego prenatal care entirely rather than risk arrest and prosecution. By protecting the interests of fetuses, we sacrifice women's rights and autonomy, and end up harming their children in the long run. Furthermore, it's logically impossible for two beings occupying the same body to exercise two competing sets of rights - one or the other has to go.

To shed more light on why it's wrong and inappropriate to focus on the fetus, let's examine several aspects about abortion. I'm going to clarify some misleading anti-choice language around the fetus, weigh the claims that a fetus is a person and has a right to life, and consider a woman's ethical reasoning behind an abortion decision. Thinking about these issues will help us understand that assigning moral value to fetuses steals away a woman's sacred right to resolve this question for herself, and her right to decide how much it will factor into her private decision to have an abortion or a baby.

Is a Fetus a Person? (and a Human Being?)

Anti-choicers say not only that a fetus is a person and a full human being, but that this status is an objective scientific fact. Unfortunately, they are assuming the very thing that requires proving, thereby committing the logical fallacy of "begging the question."

Historically, a fetus has never (or very rarely) been considered a person or human being, at least not before "quickening", an old-fashioned term indicating noticeable movement of the fetus. The Catholic Church generally disliked abortion because it represented illicit sex, not because it killed a fetus. The church did not make abortion an excommunicable crime until 1869.[3] Further, the wide variety of laws throughout the world were written specifically to protect born human beings and their property. There is virtually no legal precedent for applying such laws to fetuses.[4] Even when abortion was illegal, it had a lesser punishment than for murder, and was often just a misdemeanor.[5] The anti-choice view of fetuses as persons is therefore a novel and peculiar one, with little historical or legal precedent to back it up.

Another major fallacy perpetrated by the anti-choice is their interchangeable use of the word "person" with the terms "human", "humanity" or "human being". These terms are not synonymous. For example, anti-choicers often confuse the adjective "human" and the noun "human being," giving them the same meaning. I'm struck by the question they often pose to pro-choicers: "But isn't it human?" - as if we think a fetus is really a creature from outer space. If you point out that a fetus consists of human tissue and DNA, anti-choicers triumphantly claim you just conceded it's a human being. Now, a flake of dandruff from my head is human, but it is not a human being, and in this sense, neither is a fertilized egg. Anti-choicers will respond that a fertilized egg is not like dandruff, because the egg consists of a unique set of chromosomes that makes it a distinct human being. But with cloning, a cell from my dandruff is enough to create a new human being. Although it would have my identical genetic make-up, it would still be a unique individual, because human beings are much more than our genes. Also, both a fertilized egg and a cloned cell represent a potential, not an actual human being. It's a worn cliché, but it bears repeating - an acorn isn't an oak tree and the egg you had for breakfast isn't a chicken. So the only objective scientific fact we have is that fertilized eggs are human (the adjective) - not that they are human beings (the noun).

Fetuses are uniquely different from born human beings in major ways. The most fundamental difference is that a fetus is totally dependent on a woman's body to survive. Anti-choicers might argue that born human beings can be entirely dependent on other people too, but the crucial difference is that they are not dependent on one, specific person to the exclusion of all others. Anybody can take care of a newborn infant (or disabled person), but only that pregnant woman can nurture her fetus. She can't hire someone else to do it.

Another key difference is that a fetus doesn't just depend on a woman's body for survival, it actually resides inside her body. Persons, by definition, must be separate individuals who operate independently of others. They do not gain the status of persons by virtue of living inside the body of another person - the very thought is inherently ridiculous, even offensive.

The normal meaning of human being implies a physical body of a certain size and shape with common attributes (excepting disabilities). Early embryonic forms do not share basic commonalities that define us as human beings. For example, zygotes and blastocysts are barely visible to the naked eye and have no bodies, brains, skeleton, or internal organs. Fetuses cannot breathe or make sounds, and they cannot see or be seen (except by shadowy ultrasound). They absorb nourishment and expel waste via an umbilical cord and placenta, not via a mouth and anus as do all other human beings. Further, fetuses are not just miniature babies. At various stages, fetuses have eyes on stalks, notochords (instead of spines), fish-like gills, tails, downy fur, distorted torsos, spindly legs, giant heads, and alien-looking faces. In fact, an early human fetus is practically indistinguishable in appearance from a dog or pig fetus. Finally, the fetal brain is not yet capable of conscious thought and memory (which aren't fully actualized until two or three years after birth). But our complex brains are what set us apart from animals and define us as human beings. The brain is the seat of personhood.[6]

Anti-choicers also use the phrase "humanity of the fetus," by which they may mean its biological human qualities, but it's ambiguous, and purposely so. The word "humanity" implies compassionate human emotions and virtues, such as pathos, love, or kindness. The term is cleverly designed to elicit sympathy for a fetus, and assign it human-like qualities it simply does not have. The ability to feel joy, sadness, anger, and hatred are an integral part of our personhood, and we do not learn to develop such sophisticated emotions until we start socially interacting with others.

Besides the capacity to experience emotions, we generally think of personhood as possessing the qualities of intelligence, self-awareness, and moral responsibility.[7] Fetuses do not share these characteristics. On a more practical level however, the term "person" is really a legal and social construction. Persons enjoy legal rights and constitutional freedoms, such as the right to assemble, travel, protest, speak, and believe as they wish. Persons have birth certificates and social security numbers. Persons earn income, pay taxes, and vote, or they are registered dependents of those that do. Under this definition, it is an indisputable fact that fetuses are not persons. They are literally incapable of exercising legal personhood in any meaningful way. Although you could call a fetus a "potential person," a potential person cannot have personhood rights either, in the same way that a 6-year old cannot obtain a driver's license just because he's a potential 16-year old. Potential persons have only potential rights, not actual rights.

So even though a fetus is biologically human, it's definitely not a person (legally and socially), and it's questionable whether it's a human being (physically). Although we usually consider persons to be human beings as well, that's not necessarily always the case. We could argue that intelligent animals like chimpanzees share some qualities of personhood with us, while a few human beings do not qualify as persons, such as brain-dead individuals.[8]Likewise, we could argue that fetuses are not human beings by virtue of their non-personhood and because they have unique physical qualities different from any born human being.

However, there is a wide divergence of opinion on the degree of "human beingness" of the fetus, and more pertinently - what its moral value should be. Biology, medicine, law, philosophy, and theology have no consensus on that issue, and neither does society as a whole. There will never be a consensus because of the subjective and unscientific nature of the claim. That's why we should give the benefit of the doubt to women and let them decide - because women are indisputable human beings and persons with rights.

Does a Fetus Have a Right to Life?

Although fetuses cannot enjoy legal personhood, anti-choicers argue that fetuses do have a right to life that outweighs the right of the woman to control her fertility and her life. But many anti-choicers support exceptions to a ban on abortion in cases of rape, incest, a threat to the woman's life, or even health. This clearly indicates that they believe the right to life of a fetus is negotiable, certainly not absolute or paramount. By compromising their "right to life" definition in order to accommodate a woman's rights, they inadvertently acknowledge that women's rights are more important than the right to life of fetuses.

Even if a fetus can be said to have a right to life, this does not include the right to use the body of another human being. For example, the state cannot force people to donate organs or blood, even to save someone's life. We are not obligated by law to risk our lives jumping into a river to save a drowning victim, noble as that might be. Therefore, even if a fetus has a right to life, a pregnant woman is not required to save it by loaning out her body for nine months against her will.[9] In response, anti-choicers say that being pregnant is not the same as being a Good Samaritan, because the woman chose to have sex, voluntarily accepting the risk of pregnancy.[10] This argument is sexist and puritanical because it punishes women, not men, for their sexual behavior. Moreover, sex is not a contract for pregnancy - people have a constitutional right to non-procreative sex because of legalized birth control, which implicitly provides the right to have sex without reproducing.[11] Most abortions are caused by failed contraception anyway, but regardless, consent to sex does not entail consent to pregnancy, any more than consent to swimming implies consent to drown.

A fetus' supposed right to life wouldn't automatically overrule a woman's right to choose anyway, which can be argued to have a higher moral value under the circumstances. The free exercise of one's moral conscience is a fundamental right in our society. And since pregnancy entails profound physical, psychological, and long-lasting consequences for a woman - it is not a mere "inconvenience" - her freedoms are significantly restricted if she is forced to carry to term.

If fetuses did have a right to live, one could make an equal case for the right of unwanted fetuses not to live. This is alien to the anti-choice assumption that all life is precious and should be encouraged and preserved at any cost. In the real world, however, some people commit suicide because they no longer want to live, and others wish they'd never been born. Life is not a picnic for all, especially unwanted children who are at high risk for leading dysfunctional lives.[12]Many people believe that being forced to live is a violation of human dignity and conscience. To be truly meaningful, the right to live must include the flip side, the right to die.

Ultimately though, to have a "right to life" requires that one be an individual capable of living an independent existence. One must "get a life" before one has a "right to life." A fetus is not a separate individual - it lives inside a pregnant woman and depends on her for its growth. In fact, the biological definition of "parasite" fits the fetal mode of growth precisely, especially since pregnancy causes a major upset to a woman's body, just like a parasite does to its host. I'm not trying to disparage fetuses with the negative connotations of the word parasite; in fact, parasites and their hosts often enjoy mutually supportive relationships, and this would include most pregnancies. However, the parasitic relationship of a fetus to a woman means that its continued existence requires her consent[13] - if she continues the pregnancy unwillingly, her rights and bodily integrity are violated. Fetal dependence on a woman's body also refutes the common anti-choice assertion that fetuses are "innocent" and therefore deserving of protection. An unwanted fetus has no ill intent of course - like a parasite, it's just doing what it naturally has to do - but the physical risks of pregnancy and its total disruption to a woman's body and life means the fetus is not harmless, and therefore not innocent. This gives the woman the right to defend herself via an abortion.

The Ethical Abortion Decision

Can a woman's decision to have an abortion be ethically justified even if we decided that the fetus is a human being with moral claims on us? Because if so, the moral status of the fetus would become even more peripheral to the abortion debate.

What goes through a typical woman's mind when she finds herself accidentally and unhappily pregnant? Why does she choose abortion? The common denominator is how a woman personally feels about becoming a mother at that time in her life, and whether she can deal with it or not. A 1998 study by the Alan Guttmacher Institute examined the reasons why women have abortions.[14] About half of all women said their main reason was to postpone or stop childbearing. What women actually say to justify this are things like: "I just can't have another baby right now." or "I'm not ready to be a mother." or "I already have three kids."

In the U.S., 61% of women having abortions already have at least one child. Globally, a large majority of women who have abortions are married with children. These women are concerned with being able to provide for themselves and their existing family. Having a new mouth to feed can be a great hardship that can hurt the whole family. Women who decide to abort are making a moral decision that is also practical. They are deciding on the basis of what they know is in the best interests of themselves and their families. Women love their children. If they know they won't be able to care for another child, they're not helping anyone by bringing it into difficult circumstances. Anti-choicers often label women who have abortions as "selfish." Let's never forget that women are still the primary caretakers of children in our society. Women know they're the ones who are going to have to do it. If they aren't even in a position to take care of themselves, or the children they already have, is it fair to expect them to make things even worse for everyone involved? In fact, having an abortion can be one of the most unselfish acts a woman can perform.

What about adoption? - the catch-all solution according to anti-choicers. First, it's virtually impossible for a married woman or any woman with children, to give up a baby for adoption. So out of all women having abortions, we're talking about a minority of women, the single childless women, who might be in a position to give up their babies for adoption. But overall, less than five percent of women actually do so. Why? A counselor at an abortion clinic told me that when adoption is mentioned as an option, a typical reaction from many women goes something like this: "Are you kidding!? Give my baby to some stranger? I could never do that!" What these women are feeling is instinctual - it's a combination of self-preservation, and a maternal obligation to the child. Giving up a child for adoption is very traumatic; it can haunt a woman forever. This relates to women's strong need to control what happens to their children. The fetus is theirs. It's in their body. And they feel obligated to it. They have a gut feeling that it's irresponsible to give your children to strangers - good mothers simply don't do such things. Most women feel that it's better to prevent the birth of a child than consign it to an uncertain fate.

When a single childless woman has an abortion, she often does it so she can better provide for future children later in her life. Although single motherhood is common and more accepted these days, it's still very difficult to raise kids by yourself. It's hard on mothers and it's hard on kids. Single mothers tend to be poorer, and have fewer resources and supports. And almost everyone would agree that kids benefit from having another parent around.

Most women give more than one reason for their abortion. There's usually other problems in the woman's life that play a role. In fact, the second most common reason for having an abortion, according to the Alan Guttmacher study, is socio-economic concerns. This includes things like poverty, inability to afford additional children, unemployment, no father, relationship problems with the father, or disruption of her education or employment.

A problem with the father is a really common reason, next to having no money. When a woman gets pregnant, she knows she's going to be tied to the father of that child for the rest of her life. If that man is abusive, or dysfunctional, or maybe she just doesn't love him, why should she make him a permanent part of her life and her child's life? Many women feel that it's better to sever all ties with that man now, by preventing the birth of his child.

What do all these socio-economic reasons have in common? They are all practical reasons, based on the day-to-day stark reality of women's lives. But they're also moral and compassionate reasons. They indicate a woman's overriding concern that her baby should have the best chance for a good life. Not a life with no father, or a bad father, or a life of poverty and collecting welfare.

So all in all, a woman's reasons for having an abortion are ethical. The decision to have an abortion is taken seriously and well-thought out. It's based on her own life circumstances and abilities; the welfare of her family; her future plans, hopes and dreams; and her determination to make a good life happen, both for herself and her loved ones. For many women, the decision to have an abortion is empowering, because it allows them the freedom to take control of their lives and their destiny, and protect and improve the lives of themselves and their families. Legal abortion liberates women, because women can only achieve equality with men if they have the ability to control their fertility.

Such things are truly ethical consequences of the right to choose abortion. Since it's also a decision that takes into account the best interests of the fetus, we can be confident that women recognize the value of their fetuses and act accordingly.

The Moral Value of the Fetus - Who Decides?

Notice that the above discussion acknowledges the moral value of fetuses from the point of view of the pregnant woman. All pregnant women know that their fetus will soon become a baby if they let the pregnancy continue. In fact, it's quite likely that most pregnant woman - those with wanted pregnancies - already believe it's a baby. A happily pregnant woman probably feels love for her fetus as a special and unique human being, a welcome and highly anticipated member of her family. She names her fetus, refers to it as a baby, talks to it, and so on. On the other hand, an unhappily pregnant woman may view her fetus with utter dismay. She cannot bring herself to refer to it as anything other than "it," much less a human being. She is desperate to get rid of this unwelcome invader, and when she does, she feels tremendous relief. Both of these reactions to a fetus, and all reactions in between, are perfectly valid and natural. Both may even occur in the same woman, years apart. Because both spring from the same ethical source - the biological imperative to be a good mother, at the right time, in the best circumstances possible.

Abortion is an extremely personal decision. It's difficult for anyone to understand how it feels to be host to an unwelcome pregnancy, until it happens to them. When Canada's Supreme Court threw out the country's abortion law, one of the female judges said: "It is probably impossible for a man to respond, even imaginatively, to such a dilemma, not just because it is outside the realm of his personal experience…but because he can relate to it only by objectifying it, thereby eliminating the subjective elements of the female psyche which are at the heart of the dilemma."[15] An abortion provider from Kansas put it more poetically: "Abortion is not a cerebral or a reproductive issue. Abortion is a matter of the heart. For until one understands the heart of a woman, nothing else about abortion makes any sense at all."

Perhaps an effective way to convey this is to explain how I felt about my own abortion 15 years ago, obtained under Canada's old discriminatory system of therapeutic hospital abortion committees. The thing that enraged me then, and still does today, is this single overriding thought: How dare they. How dare anyone tell me what I can do with my body, my life. How dare anyone tell me I should submit to their preconceived ideas of how a woman should think and feel, decide and act, live and breathe. How dare they. My life is no-one else's to lead, no-one else's to make stereotyped judgments upon, no-one else's to paternalistically manage. If I want advice and support from others over difficult life decisions, I'll seek it on my own and take what I need from it. Ultimately, I am the final arbiter when it comes to my life. And my decision-making ability includes deciding the fate of my embryo or fetus. Since it lives inside my body and is completely dependent on me and no-one else for its survival, it literally belongs to me and no-one else. I'm solely responsible for it. It has no independent rights because it has no independent existence. This is not selfishness or a lack of caring for my fetus - quite the opposite. It represents maturity and respect, based on a gut-level belief that I shouldn't inflict myself on a child who deserves better.

Anti-choicers claim that nobody's looking out for fetuses except them. They ignore the fact that only pregnant woman are qualified to make decisions on behalf of their fetuses. Not only can we trust women to make the best decision - whether it's to give birth or have an abortion - but we must allow women to make mistakes they might regret, too. With rights come responsibilities. In the end, a woman's decision about what to do with her fetus is nobody's business but hers. Any unwanted interference with her decision is not only immoral, it's an outrage and an insult, because it says a woman can't be trusted to make responsible decisions about her own life. It reduces her to the status of a child or a piece of chattel. That's why the abortion issue should have no place in politics or law. It's a private health decision that women make based on their personal ethics and life circumstances, not a political football to be kicked around at election time. Women's lives and rights should never be up for debate in legislatures and editorial pages.

We all have our own opinions about what the moral status of the fetus might be. Some people believe a fertilized egg is a full human being with an absolute right to life that supercedes any right of the woman. Others believe that a fetus attains moral value only after it becomes viable, or upon birth. But that's all these beliefs are - opinions. There's no way to decide between them, because they're entirely subjective and emotional. Therefore, the only opinion that counts is that of the pregnant woman. The status of her fetus and any moral value accorded to it is entirely her call. A fetus becomes a human being when the woman carrying it decides it does.

Pro-choice leaders and activists are wrong to encourage debate on the status of the fetus. They are wrong to publicly speculate on its moral value. Their opinion about the fetus is just as irrelevant and just as dangerous as the opinion of the most fanatical anti-choicer. Because when we inject our opinions about the fetus into the public square, it just shows our lack of respect and trust for the moral authority of pregnant women. We insult their dignity, invade their privacy, and trample on their personal relationship with their fetus.

Let's not fall into the fetus focus fallacy. The abortion debate is about ensuring fundamental human rights for women - their right to life, good health, education, economic justice, autonomy, privacy, and equality - in short, women's right to control their own lives and destiny on a par with men. Because with those rights in hand, women have everything they need to protect and care for their fetuses and children themselves, in the best way possible.

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Author's Note: This article incorporates several arguments from a previous article I wrote in 2001: Personhood: Is a Fetus a Human Being?

Endnotes

[1] Kissling, Frances. Is There Life After Roe? Conscience. Winter 2004/2005. www.cath4choice.org/conscience/current/LifeAfterRoe.htm

[2] Of 46 million abortions a year in the world, 20 million are illegal. Over 78,000 women around the world die every year from illegal, unsafe abortion, and millions more are left injured or infertile. Source: Alan Guttmacher Institute. Induced Abortion Worldwide Fact Sheet. www.guttmacher.org/pubs/fb_0599.html

[3] Robinson, B.A. 2004. Abortion: Ancient Christian Beliefs. Ontario Consultants on Religious Tolerance. www.religioustolerance.org/abo_hist.htm

[4] Except in rare, narrowly defined circumstances on the condition that the fetus has a subsequent live birth, for example, allowing a fetus to later inherit so as to honor the intent of a deceased person (not to give a fetus personhood). U.S. Supreme Court. January 22, 1973. Roe v. Wade. Justice Blackmun opinion.

[5] Rosen, Judith C. A Legal Perspective on the Status of the Fetus: Who Will Guard the Guardians? In Abortion Rights and Fetal 'Personhood'. Doerr, Ed and James W. Prescott, editors. 1990, 2nd ed. Centerline Press, Long Beach, California. pp 29-50.

[6] Bennett, Michael V.L. Personhood From a Neuroscientific Perspective. In Abortion Rights and Fetal 'Personhood'. Doerr, Ed and James W. Prescott, editors. 1990, 2nd ed. Centerline Press, Long Beach, California. pp 77-79.

[7] Johnson, Andrew. How Not to Argue for Abortion Rights. Free Inquiry. Feb/Mar 2005. pp 38-41.

[8] Johnson, pp 40.

[9] McDonagh, Eileen L. 1996. Breaking the Abortion Deadlock: From Choice to Consent. Oxford University Press, New York, NY; and Jarvis Thomson, Judith. 1986. In Defense of Abortion. Reprinted in Rights, Restitution, and Risk. Ed. W. Pavent. Harvard University Press, Cambridge. Massachusetts.

[10] Tribe, Lawrence H. 1990. Abortion: The Clash of Absolutes. W.W. Norton & Company, New York. pp 131-132.

[11] U.S. Supreme Court cases Griswold v. Connecticut, 1965; and Eisenstadt v. Baird, 1972, found that the use of birth control fell under a constitutional right to privacy.

[12] David, Henry P. et al., eds. 1988. Born Unwanted: Developmental Effects of Denied Abortion. Springer Publishing Co., New York.

[13] McDonagh, pp. 68.

[14] Bankole, Akinrinola, and Susheela Singh and Taylor Haas. Reasons Why Women Have Induced Abortions: Evidence from 27 Countries. Family Planning Perspectives. Volume 24, No. 3, August 1998. www.agi-usa.org/pubs/journals/2411798.html

[15] Day, Shelagh and Stan Persky, eds. The Supreme Court of Canada Decision on Abortion. Reasons for Judgment: Justice Bertha Wilson, pp.133.