Abortion 075462238X, 9780754622383

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Abortion

The International Library of Medicine, Ethics and Law Series Editor: Michael D. Freeman

Titles in the Series Death, Dying and the Ending of Life Margaret P. Battin, Leslie Francis and Bruce Landesman Abortion Belinda Bennett Ethics and Medical Decision-Making Michael D. Freeman

Rights and Resources Frances H. Miller AIDS: Society, Ethics and Law Udo Schiiklenk Women, Medicine, Ethics and the Law Susan Sherwin and Barbara Parish

Children, Medicine and the Law Michael D. Freeman

Legal and Ethical Issues in Human Reproduction Bonnie Steinbock

Mental Illness, Medicine and Law Martin Lyon Levine

Medical Practice and Malpractice Harvey Tejf

The Elderly Martin Lyon Levine

Human Experimentation and Research George F Tomossy and David N. Weisstub

Genetics and Gene Therapy Sheila A.M. McLean

Medicine and Industry George F. Tomossy

Abortion

Edited by

Belinda Bennett University o f Sydney, Australia

First published 2004 by Ashgate Publishing Published 2016 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN 711 Third Avenue, New York, NY 10017, USA

Routledge is an imprint of the Taylor & Francis Group, an informa business Copyright © Belinda Bennett 2004. For copyright of individual articles please refer to the Acknowledgements. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data Abortion.- (The international library of medicine, ethics and law) I. Abortion- Moral and ethical aspects 2. Abortion- Law and legislation I. Bennett, Belinda 179.7'6 Library of Congress Control Number: 2004101188 ISBN 13: 978-0-7546-2238-3 (hbk)

Contents Acknowledgements Series Preface Introduction

PART I

PERSONHOOD, PRENATAL LIFE AND REPRODUCTIVE RIGHTS

1 Raanan Gillon (2001), ‘Is There a “New Ethics of Abortion”?’, Journal o f Medical Ethics, 27, pp. ii5-ii9. 2 Judith Jarvis Thomson (1971), ‘A Defense of Abortion’, Philosophy and Public Affairs, 1, pp. 47-66. 3 John Finnis (1973), ‘The Rights and Wrongs of Abortion: A Reply to Judith Thomson’, Philosophy and Public Affairs, 2, pp. 117-45. 4 David Boonin (1997), ‘A Defense of “A Defense of Abortion” : On the Responsibility Objection to Thomson’s Argument’, Ethics, 107, pp. 286-313. 5 Kenneth Einar Himma (1999), ‘Thomson’s Violinist and Conjoined Twins’, Cambridge Quarterly o f Healthcare Ethics, 8, pp. 428-39. 6 Mary Anne Warren (1989), ‘The Moral Significance of Birth’, Hypatia, 4, pp. 46-65. 7 Catriona Mackenzie (1992), ‘Abortion and Embodiment’, Australian Journal o f Philosophy, 70, pp. 136-55. 8 Rosalind Pollack Petchesky (1987), ‘Fetal Images: The Power of Visual Culture in the Politics of Reproduction’, Feminist Studies, 13, pp. 263-92. 9 Susan Himmelweit (1988), ‘More Than “A Woman’s Right to Choose”?’, Feminist Review, 29, pp. 38-56. 10 Catharine A. MacKinnon (1991), ‘Reflections on Sex Equality Under Law’, Yale Law Journal, 100, pp. 1281-328. 11 Janet Gallagher (1987), ‘Prenatal Invasions and Interventions: What’s Wrong With Fetal Rights’, Harvard Women’s Law Journal, 10, pp. 9-58.

PART II 12

13

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3 9 29 59 87 99 119 139 169 189 237

REGULATING ABORTION: INTERNATIONAL PERSPECTIVES

Shelley Gavigan (1984), ‘The Criminal Sanction as it Relates to Human Reproduction: The Genesis of the Statutory Prohibition of Abortion’, Journal o f Legal History, 5, pp. 20-43. Kerry Petersen (1996), ‘Abortion Laws: Comparative and Feminist Perspectives in Australia, England and the United States’, Medical Law International, 2, pp. 77-105.

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14 15

16 17

Ronald Dworkin (1992), ‘Unenumerated Rights: Whether and How Roe Should be Overruled’, University o f Chicago Law Review, 59, pp. 381-432. 343 Peta-Gaye Miller (1999), ‘Member State Sovereignty and Women’s Reproductive Rights: The European Union’s Response’, Boston College International and Comparative Law Review, 22, pp. 195-212. 395 Marge Berer (2002), ‘Making Abortions Safe: A Matter of Good Public Health Policy and Practice’, Reproductive Health Matters, 10, pp. 31-44. 413 Jing-Bao Nie (1999), ‘The Problem of Coerced Abortion in China and Related Ethical Issues’, Cambridge Quarterly o f Healthcare Ethics, 8, pp. 463-75. 427

PART III 18

19

20

Steve Heilig and Therese S. Wilson (1999), ‘The Need for More Physicians Trained in Abortion: Raising Future Physicians’ Awareness’, Cambridge Quarterly o f Healthcare Ethics, 8, pp. 485-88. Jeffrey Blustein and Alan R. Fleischman (1995), ‘The Pro-Life Maternal-Fetal Medicine Physician: A Problem of Integrity’, Hastings Center Report, 25, pp. 22-26. Rebecca S. Dresser (1994), ‘Freedom of Conscience, Professional Responsibility, and Access to Abortion’, Journal o f Law, Medicine and Ethics, 22, pp. 280-85.

PART IV 21 22 23

24 25

HEALTH PROFESSIONALS AND ABORTION

443

447 453

PRENATAL DIAGNOSIS AND ABORTION

John Harris (2001), ‘One Principle and Three Fallacies of Disability Studies’, Journal o f Medical Ethics, 27, pp. 383-87. 461 Adrienne Asch (1999), ‘Prenatal Diagnosis and Selective Abortion: A Challenge to Practice and Policy’, American Journal o f Public Health, 89, pp. 1649-57. 467 Erik Parens and Adrienne Asch (1999), ‘The Disability Rights Critique of Prenatal Genetic Testing: Reflections and Recommendations’, in Erik Parens and Adrienne Asch (eds), Prenatal Testing and Disability Rights, Washington, DC: Georgetown University Press, pp. 3-43. 477 Emily Jackson (2000), ‘Abortion, Autonomy and Prenatal Diagnosis’, Social and Legal Studies, 9, pp. 467-94. 519 Nivedita Menon (1993), ‘Abortion and the Law: Questions for Feminism’, Canadian Journal o f Women and the Law, 6, pp. 103-18. 547

Name Index

563

Acknowledgements The editor and publishers wish to thank the following for permission to use copyright material. A.B. Academic Publishers for the essay: Kerry Petersen (1996), ‘Abortion Laws: Comparative and Feminist Perspectives in Australia, England and the United States’, Medical Law International, 2, pp. 77-105. Copyright © 1996 A.B. Publishers. American Public Health Association for the essay: Adrienne Asch (1999), ‘Prenatal Diagnosis and Selective Abortion: A Challenge to Practice and Policy’, American Journal o f Public Health, 89, pp. 1649-57. Copyright © 1999 American Public Health Association. American Society of Law, Medicine & Ethics for the essay: Rebecca S. Dresser (1994), ‘Freedom of Conscience, Professional Responsibility, and Access to Abortion’, Journal o f Law, Medicine and Ethics, 22, pp. 280-85. Copyright © 1994 American Society of Law, Medicine & Ethics. Boston College for the essay: Peta-Gaye Miller (1999), ‘Member State Sovereignty and Women’s Reproductive Rights: The European Union’s Response’, Boston College International and Comparative Law Review, 22, pp. 195-212. Copyright © 1999 Boston College International and Comparative Law Review. British Medical Journal for the essays: Raanan Gillon (2001), ‘Is There a “New Ethics of Abortion”?’, Journal o f Medical Ethics, 27, pp. ii5-ii9. Copyright © 2001 BMJ; John Harris (2001), ‘One Principle and Three Fallacies of Disability Studies’, Journal o f Medical Ethics, 27, pp. 383-87. Copyright © 2001 BMJ. Cambridge University Press for the essays: Kenneth Einar Himma (1999), ‘Thomson’s Violinist and Conjoined Twins’, Cambridge Quarterly o f Healthcare Ethics, 8, pp. 428-39. Copyright © 1999 Cambridge University Press; Jing-Bao Nie (1999), ‘The Problem of Coerced Abortion in China and Related Ethical Issues’, Cambridge Quarterly o f Healthcare Ethics, 8, pp. 46375. Copyright © 1999 Cambridge University Press; Steve Heilig andTherese S. Wilson (1999), ‘The Need for More Physicians Trained in Abortion: Raising Future Physicians’ Awareness’, Cambridge Quarterly o f Healthcare Ethics, 8, pp. 485-88. Copyright © 1999 Cambridge University Press. Ronald Dworkin (1992), ‘Unenumerated Rights: Whether and How Roe Should be Overruled’, University o f Chicago Law Review, 59, pp. 381—432. Copyright © 1992 Ronald Dworkin. Elsevier for the essay: Marge Berer (2002), ‘Making Abortions Safe: A Matter of Good Public Health Policy and Practice’, Reproductive Health Matters, 10, pp. 31-44. Copyright © 2000 Bulletin of World Organization.

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Frank Cass Publishers for the essay: Shelley Gavigan (1984), ‘The Criminal Sanction as it Relates to Human Reproduction: The Genesis of the Statutory Prohibition of Abortion’, Journal o f Legal History, 5, pp. 20-43. Harvard Law School Publication Center for the essay: Janet Gallagher (1987), ‘Prenatal Invasions and Interventions: What’s Wrong With Fetal Rights’, Harvard Women’s Law Journal, 10, pp. 9 58. Copyright © 1987 President and Fellows of Harvard College. Hastings Center for the essay: Jeffrey Blustein and Alan R. Fleischman (1995), ‘The Pro-Life Maternal-Fetal Medicine Physician: AProblem of Integrity’, Hastings Center Report, 25, pp. 2226. Indiana University Press for the essay: Mary Anne Warren (1989), ‘The Moral Significance of Birth’, Hypatia, 4, pp. 46-65. Copyright © 1989 Mary Anne Warren. Catharine A. MacKinnon (1991), ‘Reflections on Sex Equality Under Law’, Yale Law Journal, 100, pp. 1281-328. Copyright © 1991 Catharine A. MacKinnon. Oxford University Press for the essay: Catriona Mackenzie (1992), ‘Abortion and Embodiment’, Australian Journal o f Philosophy, 70, pp. 136-55. Palgrave Publishers Ltd for the essay: Susan Himmelweit (1988), ‘More Than “A Woman’s Right to Choose”?’, Feminist Review, 29, pp. 38-56. Rosalind Pollack Petchesky (1987), ‘Fetal Images: The Power of Visual Culture in the Politics of Reproduction’, Feminist Studies, 13, pp. 263-92. Copyright © 1987 Rosalind Pollack Petchesky. Princeton University Press for the essay: Judith Jarvis Thomson (1971), ‘A Defense of Abortion’, Philosophy and Public Affairs, 1, pp. 47-66. Copyright © 1971 PAPA; John Finnis (1973), ‘The Rights and Wrongs of Abortion: A Reply to Judith Thomson’, Philosophy and Public Affairs, 2, pp. 117-45. Copyright © 1973 PAPA. Sage Publications Ltd for the essay: Emily Jackson (2000), ‘Abortion, Autonomy and Prenatal Diagnosis’, Social and Legal Studies, 9, pp. 467-94. Copyright © 2000 Sage Publications Ltd. University of Chicago Press for the essay: David Boonin (1997), ‘A Defense of “A Defense of Abortion”: On the Responsibility Objection to Thomson’s Argument’, Ethics, 107, pp. 286313. Copyright © 1997 University of Chicago. University of Toronto Press for the essay: Nivedita Menon (1993), ‘Abortion and the Law: Questions for Feminism’, Canadian Journal o f Women and the Law, 6, pp. 103-18. Copyright © 1992 Nivedita Menon. Every effort has been made to trace all the copyright holders, but if any have been inadvertently overlooked the publishers will be pleased to make the necessary arrangement at the first opportunity.

Series Preface Few academic disciplines have developed with such pace in recent years as bioethics. And because the subject crosses so many disciplines important writing is to be found in a range of books and journals, access to the whole of which is likely to elude all but the most committed of scholars. The International Library of Medicine, Ethics and Law is designed to assist the scholarly endeavour by providing in accessible volumes a compendium of basic materials drawn from the most significant periodical literature. Each volume contains essays of central theoretical importance in its subject area, and each throws light on important bioethical questions in the world today. The series as a whole - there will be fifteen volumes - makes available an extensive range of valuable material (the standard ‘classics’ and the not-sostandard) and should prove of inestimable value to those involved in the research, teaching and study of medicine, ethics and law. The fifteen volumes together - each with introductions and bibliographies - are a library in themselves - an indispensable resource in a world in which even the best-stocked library is unlikely to cover the range of materials contained within these volumes. It remains for me to thank the editors who have pursued their task with commitment, insight and enthusiasm, to thank also the hard-working staff at Ashgate - theirs is a mammoth enterprise - and to thank my secretary, Anita Garfoot for the enormous assistance she has given me in bringing the series from idea to reality. MICHAEL FREEMAN Series Editor Faculty o f Laws University College London

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Introduction The legal and ethical debates over abortion have been amongst the most enduring in contemporary bioethics and health law. Central to these debates are concerns over the legality and ethics of terminating a pregnancy - issues which are themselves interwoven, and at times conflict, with concerns over the moral status of the embryo or foetus, the question of when human life begins and the meanings of reproductive autonomy. These debates predate the major advances in medical science and technology which have occurred in the past 50 years and, in this sense, abortion debates may be regarded as less technologically driven than some other areas of bioethics (such as those over genetics or assisted conception, for example) which have emerged as new foci for analysis in the wake of technological advances. Of course, this is not to suggest that abortion debates have been immune from technological developments. As debates over prenatal diagnosis and abortion show, they have been, and continue to be, shaped and reshaped by contemporary discourses and new technologies. This volume seeks to explore these interactions and provide an overview of the major themes that have emerged in this area. The works included in this volume address the moral and philosophical foundations for abortion through an exploration of the nature of prenatal life (Part I), international perspectives on the regulation of abortion (Part II), the role of health professionals as providers of abortion services (Part III), and the impact of the new genetics on abortion rights and discourses (Part IV).

Personhood, Prenatal Life and Reproductive Rights The links between personhood, prenatal life and reproductive rights are complex. On the one hand, an embryo and a foetus are unquestionably alive. But what is the moral and legal significance of that life? Does that life equate with personhood and with all the legal and moral rights and duties that attach to such a status? Is an embryo a person and, if so, can it be killed? Or is an embryo a potential person? If the embryo’s status is one of potentiality, what is the moral and legal significance of that status? Finally, can an embryo or foetus have a right to life and, if it does have such a right, what is its significance for the legal and moral status of the pregnant woman? Since the embryo/foetus must develop within her body if its potentiality is to be realized, what rights does the pregnant woman have to decide whether or not to continue the pregnancy? These issues have been central to debates over abortion. Raanan Gillon argues in Chapter 1 that debates over personhood in the context of abortion are ‘primarily metaphysical and/or theological issues rather than directly moral issues’ (p. 3) and that, over the centuries, a number of ‘standard positions’ have developed. These positions include the argument that the embryo should be accorded full moral status from the ‘moment of conception’, arguments based on the development of the foetal brain and the capacity for sentience, viability, birth, and the

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capacity for self-awareness. Gillon analyses each of these positions, and the debates over these positions and the moral status of the embryo/foetus continue in the essays selected for this volume. While much of the debate over abortion concerns the ‘right to life’ of the foetus and the corresponding discussion of the significance of prenatal life, feminist scholars have sought to ensure that the context of foetal life - that is, the fact that the foetus can only develop within the body of woman - remains an important part of the debate. Judith Jarvis Thomson’s discussion of the unconscious violinist in Chapter 2 provides a striking and important critique of the claims that are implicit in arguments for a foetal right to life. She asks the reader to imagine that they wake up one morning back-to-back with a famous unconscious violinist who has a fatal kidney ailment. The Society of Music Lovers has kidnapped you, since you have the right blood type, and plugged the violinist’s circulatory system into yours in order to keep the violinist alive. The violinist can be safely unplugged after nine months but, to do so sooner, would be to kill him. The story of the unconscious violinist highlights the degree to which we generally assume that individuals have a right to control their own bodies. Thomson argues ‘if a human being has any just, prior claim to anything at all, he has a just, prior claim to his own body’ (p. 16). This claim to one’s own body is a critical factor in the abortion debate according to her analysis: If anyone does wish to deduce ‘he has a right’ from ‘you ought’, then all the same he must surely grant that there are cases in which it is not morally required o f you that you allow that violinist to use your kidneys, and in which he does not have a right to use them, and in which you do not do him an injustice if you refuse. And so also for mother and unborn child. Except in such cases as the unborn person has a right to demand it - and we are leaving open the possibility that there may be such cases - nobody is morally required to make large sacrifices, of health, of all other interests and concerns, of all other duties and commitments, for nine years, or even for nine months, in order to keep another person alive, (pp. 23-24)

In Thomson’s view, a pregnant woman should not be compelled to be a Good Samaritan for the benefit of the foetus. Thomson’s analysis has been of great significance in the debates over the morality of abortion and has been the subject of much discussion. Three chapters in this volume provide examples of, and contributions to, those debates. John Finnis critiques Thomson’s analysis of rights and moral permissibility (Chapter 3). David Boonin (Chapter 4) critiques the ‘responsibility objection’ to Thomson’s analysis of abortion. In Chapter 5 Kenneth Einar Himma analyses the permissibility of abortion by considering the case of conjoined twins, as analogous to the physical interdependence between the pregnant woman and foetus. The links between personhood, prenatal life and reproductive rights have been central concerns for feminist scholars. In Chapter 6 Mary Anne Warren argues in her essay on ‘The Moral Significance of Birth’ that birth is significant and that there are important moral differences between the late-term foetus and the newly-born infant. Warren argues that the extension of legal rights to the foetus will necessarily infringe on the rights of the pregnant woman: ‘There is room fo r only one person with full and equal rights inside a single human skin’ (p. 116, emphasis in original). For Catriona Mackenzie (Chapter 7) the conceptualization of abortion rights as ‘the right of an autonomous moral agent to be able to make a decision about whether she wishes to take responsibility for the future well-being of a being dependent upon her’ (p. 120) is central to the feminist case for abortion rights.

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In contemporary Western society the politics of reproductive choice has become extremely complex. Even if abortions are legally available, the politics of choice, including choice in the context of sex selection or abortion on the grounds of foetal disability, is complex and often contested. Susan Himmelweit addresses these complexities of choice in Chapter 9, revealing the contradictions inherent in grounding women’s rights to reproductive freedom in choice and individual rights when those choices and rights are based on liberal theory. As she points out, ‘[t]he individual subject within liberal theory has always implicitly, and sometimes explicitly, been male’ (p. 179). In Himmelweit’s view there is a need to move beyond liberal theory. She argues for the development of an alternative feminist approach which ‘would see the woman as an active participant in reproduction, creating through her own nurturing efforts the baby that the foetus within her is growing into’ (p. 181). This view would contrast ‘with the anti­ abortionists’ view which sees the foetus as a separate being, growing almost independently within a womb’ (p. 182). The conceptualization of the foetus as a being with interests that are separate and distinct from those of the pregnant woman is at the heart of claims to foetal personhood and for the extension of moral and legal rights to the foetus. In Chapter 8 Rosalind Pollack Petchesky argues that this conceptualization of foetal individuality has been facilitated through developments in medical science, such as ultrasound, which allow the foetus to be seen and observed by others. In this way, the foetus can be portrayed as separate and autonomous from the pregnant woman. Petchesky analyses the evolution of cultural meanings of pregnancy and their implications for women within the context of these new technologies. Catherine MacKinnon analyses this point further in Chapter 10, arguing that presenting the foetus through an ultrasound image, rather than through the viewpoint of the pregnant woman, ‘stigmatizes her unique viewpoint as subjective and internal. This has the epistemic effect of making the fetus more real than the woman, who becomes reduced to the “grainy blur” at the edge of the image’ (p. 219). The characterization of the foetus as a separate entity with separate rights has not been limited to the abortion context. The development and recognition of ‘foetal rights’ has led to increased scrutiny of the behaviour of women during pregnancy and childbirth, a trend which is analysed by Janet Gallagher in Chapter 11. While the foetal rights debate is about behaviour during pregnancy, rather than about the right to terminate a pregnancy, there is nonetheless a link between abortion debates and those over foetal rights, with both debates having dramatic implications for the meaning of women’s reproductive autonomy in contemporary Western society. Catherine MacKinnon’s work has played an important role in shaping feminist legal theory on abortion and women’s rights generally. In Chapter 10 MacKinnon explores the concept of sex equality and its expression within the law in legal doctrines of sex equality. She argues that reproductive issues need to be theorized in terms of sex inequality, rather than in terms of privacy law which has been a traditional US approach to the issues. Understood in terms of sex inequality, ‘the law of reproductive control would begin with the place of reproduction in the status of the sexes’ (p. 219). Inequality between men and women becomes the lens through which the lived reality of women’s lives and the complexities of their reproductive decisions can be understood. MacKinnon argues: ‘However difficult an abortion decision may be for an individual woman, it provides a moment of power in a life otherwise led under unequal conditions which preclude choice in ways she cannot control’ (p. 225).

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Regulating Abortion: International Perspectives The debates reflected in the chapters in Part I form the backdrop against which legal debates over abortion rights occur. Philosophical and moral debates over abortion and foetal personhood both contribute to, and are themselves formed by, the legal debates over abortion rights. Part II of this book brings together some international perspectives on the legal regulation of abortion. While the countries and the specificities of the regulatory forms differ, there are some common themes including the restrictions placed on provision of abortion services and the limitations these restrictions place on women’s reproductive rights. In Chapter 12 Shelley Gavigan outlines the historical development of criminal laws relating to abortion in Britain. Theological perspectives on foetal development have played an important role in the development of abortion laws. ‘This is well exemplified by the centuries-long entrenchment in the criminal law of the concept of quickening, a concept directly derived from ecclesiastical concern to determine the first moment of vitality of the foetus’ (p. 289). While the concept of quickening - the moment when foetal movements in the womb could be felt by the pregnant woman - did not persist in the later statutory laws relating to abortion, its role in the development of the law does provide insights into the links between law, theology and medical science. In Chapter 13 Kerry Petersen analyses the development of abortion laws in England, Australia and the United States. Despite differences in the subsequent development of their laws, Petersen argues that, in each country, the medical profession has a gatekeeping role for abortion services, with access to these services controlled by doctors rather than by the women themselves. Within the United States in the years since the landmark decision of Roe v. Wade the morality and legality of abortion have been the subject of intense and often heated public debates. Ronald Dworkin analyses the constitutional arguments over abortion and the Roe v. Wade decision in Chapter 14 and explores the questions of whether a foetus is a ‘constitutional person’ and whether it has interests. Dworkin analyses the constitutional issues relating to abortion rights, arguing that the constitutional argument about abortion ‘is not an argument about whether a fetus is a person. It is rather a dispute about whether and how far government may enforce an official view about the right understanding of the sanctity of human life’ (p. 388). The cultural context of the country within which a woman lives is of central importance to the abortion question. This cultural context is important in understanding the differences in abortion laws and the difficulties associated with abortion law reform. In Chapter 15 PetaGaye Miller addresses the relationship between women’s reproductive rights and human rights and analyses the challenges associated with developing harmonized approaches to abortion within the European Union through a comparison between Irish and English abortion laws. In Chapter 17 Jing-Bao Nie analyses the historical, cultural and ethical issues associated with China’s abortion laws and policies. On an international level, the diversity in abortion laws reveals differing moralities about abortion and women’s rights, as well as the huge disparities in health between women. Marge Berer notes in Chapter 16 that an estimated 80000 women in developing countries die annually as a result of unsafe abortions. ‘This figure hides substantial regional variation, however, with unsafe abortions in Africa at least 700 times more likely to lead to death than safe abortions in developed countries’ (p. 413). Berer analyses the changes in policies and practices that are required in order to make abortion safe for women and argues that ‘[m]aking abortion legal is an essential component of making abortion safe’ (p. 415).

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Health Professionals and Abortion In Part III the issue of access to abortions is explored further in the context of three essays which analyse the role of health professionals in the provision of abortion services. Each of these essays focuses on the situation in the United States. However, in developed and developing countries women are reliant on trained health professionals and access to appropriate clinical services, such as hospital facilities, as important preconditions for safe abortions. The role of doctors in providing abortion services is explored by Steve Heilig and Therese S. Wilson (Chapter 18) and Rebecca S. Dresser (Chapter 20). The implications for women’s reproductive rights of a scarcity of trained doctors willing to provide abortion services is examined in both these chapters. In Chapter 19 Jeffrey Blustein and Alan R. Fleischman consider the question of whether a doctor who is opposed to abortion can practise in the area of maternal-foetal medicine without betraying their beliefs. They ask, ‘if the physician believes it is wrong for the woman to obtain an abortion, how can he in good conscience test for fetal defects so she can decide whether to have one?’ (p. 448). In the essays included in this Part, the issues of conscientious objection and professional obligations are analysed in the context of the issue of abortion services and serve to remind us that the issues raised by abortion touch health professionals as well as pregnant women.

Prenatal Diagnosis and Abortion The new genetics has added a new dimension to reproductive decision-making for women. With the technologies of prenatal testing an increasing amount of information about foetal characteristics is available to the pregnant woman. The relationship between prenatal diagnosis and abortion has been controversial in terms of its implications for individuals with disabilities. The essays included in Part IV explore the different aspects of this debate. In Chapter 23 Erik Parens and Adrienne Asch set out a disability rights critique of prenatal genetic testing, providing a thoughtful analysis of the debate over selective abortion. Adrienne Asch (Chapter 22) critiques assumptions about disability and analyses the implications of these assumptions for women’s reproductive choices. She compares paradigms of disability and their implications for people with disabilities, arguing that: In order to make testing and selecting for or against disability consonant with improving life for those who will inevitably be bom with or acquire disabilities, our clinical and policy establishments must communicate that it is as acceptable to live with a disability as it is to live without one and that society will support and appreciate everyone with the inevitable variety of traits, (p. 474)

John Harris argues in Chapter 21 that ‘[disabilities always involve a “harmed condition” of the individual and that being the case it is never wrong to prevent the births of people with disabilities and often right so to do’ (p. 465). However, for Harris it does not follow that the lives of individuals with disabilities are worth less than those without disabilities. He argues ‘we always have a moral reason to prevent disability. That does not imply that persons with disabilities are in any sense at all anything other than our full moral, political and social equals, nor that they do not have lives that are thoroughly worth living’ (p. 465).

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The final two essays in this volume analyse the implications of prenatal testing for women and feminism. Emily Jackson (Chapter 24) analyses recent debates about abortion following prenatal diagnosis against the broader context of increasing recognition of patient autonomy. She argues that ‘[w]e might assume that the dominant language of self-government would displace judgements about the moral legitimacy of a woman’s decision to have an abortion’ (p. 521). However, she also argues that, paradoxically, ‘there seems to be increasing controversy about the moral validity of abortion in certain circumstances’ (p. 521). For Jackson, calls to regulate abortion following prenatal diagnosis ‘presuppose that it is both possible and legitimate to draw a line between conditions or characteristics that do or do not provide adequate justification for abortion’ (p. 540). In Chapter 25 Nivedita Menon analyses feminist responses to sex-selective abortions. Menon argues that there are political contradictions for feminists seeking to restrict rights to sex-selective abortions and asks, ‘If abortion is a right over one’s body, how are feminists to deny this right to women when it comes to selective abortion of female foetuses?’ (p. 558). The dilemma for feminists is that ‘[l]aws which recognize the right to abortion permit the abortion of female foetuses; laws which curb the selective abortion of female foetuses could be used to curb the right to abortion itself’ (p. 560). Menon argues that feminists ‘must learn to talk of rights in a manner which is highly self-conscious and very cautious’ (p. 561).

Conclusion As the chapters in this volume show, abortion remains a complex area that continues to raise challenging issues for theology, public policy and the law. Recent developments in genetic science mean that these issues seem likely to become more, rather than less, complex. By bringing together key contributions to the debates over abortion it is hoped that this volume will make a valuable contribution to future debates in this difficult and complex area.

Further Reading Boonin, David (2002), A Defense of Abortion, New York: Cambridge University Press. Cannold, Leslie (1998), The Abortion Myth: Feminism, Morality and the Hard Choices Women Make, Sydney: Allen and Unwin. Cook, Rebecca J. (1995), ‘Human Rights and Reproductive Self-Determination’, American University Law Review , 44, p. 975. Cossman, Brenda (1986), ‘The Precarious Unity of Feminist Theory and Practice: The Praxis o f Abortion’, University of Toronto Faculty of Law Review, 44, p. 85. Dolgin, Janet L. (2003), ‘Embryonic Discourse: Abortion, Stem Cells, and Cloning’, Florida State University Law Review, 31, p. 101. Dworkin, Ronald (1993), Life’s Dominion: An Argument About Abortion and Euthanasia, London: Harper Collins Publishers. Glendon, Mary Ann (1987), Abortion and Divorce in Western Law, Cambridge, MA: Harvard University Press. Gowri, Aditi (2000), ‘Reproduction, Rights and Public Policy: A Framework for Assessment’, Texas International Law Journal, 35, p. 13. Gray car, Regina and Morgan, Jenny (2002), The Hidden Gender of Law, 2nd edn, Sydney: Federation Press, Chapter 8.

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Gross, Michael L. (2002), ‘Abortion and Neonaticide: Ethics, Practice and Policy in Four Nations’, Bioethics, 16, p. 202. Keown, John (1988), Abortion, Doctors and the Law: Some Aspects of the Legal Regulation of Abortion in England from 1803 to 1982, Cambridge: Cambridge University Press. Luker, Kristin (1984), Abortion and the Politics of Motherhood, Berkeley and Los Angeles: University of California Press. MacKinnon, Catherine A. (1987), Feminism Unmodified: Discourses on Life and Law, Cambridge, MA: Harvard University Press. Morgan, Derek (2001), Issues in Medical Law and Ethics, London and Sydney: Cavendish Publishing, Chapter 8. Noonan, John T. Jr (ed.) (1970), The Morality of Abortion: Legal and Historical Perspectives, Cambridge, MA: Harvard University Press. Olsen, Frances (1989), ‘Unraveling Compromise’, Harvard Law Review , 103, p. 105. Petchesky, Rosalind Pollack (1985), Abortion and Woman’s Choice: The State, Sexuality and Reproductive Freedom, Boston, MA: Northeastern University Press. Petersen, Kerry (1993), Abortion Regimes, Aldershot: Dartmouth. Rothman, Barbara Katz (1988), The Tentative Pregnancy: Amniocentesis and the Sexual Politics of Motherhood, London: Pandora. Sheldon, Sally (1997), Beyond Control: Medical Power and Abortion Law , London: Pluto Press. Siegal, Reva (1992), ‘Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions o f Equal Protection’, Stanford Law Review, 44, p. 261. Tooley, Michael (1983), Abortion and Infanticide, Oxford: Clarendon Press. West, Robin (1999), ‘Liberalism and Abortion’, Georgetown Law Journal, 87, p. 2117. Williams, Joan (1991), ‘Gender Wars: Selfless Women in the Republic of Choice’, New York University Law Review, 66, p. 1559.

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Part I Personhood, Prenatal Life and Reproductive Rights

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[1] Is there a ‘new ethics o f abortion’? Raanan Gillon Imperial College, London

Abstract This paper argues that the central issue in the abortion debate has not changed since 1967 when the English parliament enacted the Abortion Act. That central issue concerns the moral status of the human fetus. The debate here is not, it is argued, primarily a moral debate, but rather a metaphysical debate and/or a theological debate—though one with massive moral implications. It concerns the nature and attributes that an entity requires to have *full moral standing”or “moral inviolability”including a “right to life”. It concerns the question when, in its development from newly fertilised ovum to unequivocally mature, autonomous morally inviolable person does a human being acquire that nature and those attributes, and thus a “right to life”. The paper briefly reviews standard answers to these questions, outlining some problems associated with each. Finally there is a brief discussion of one way in which the abortion debate has changed since 1967—notably in the increasingly vociferous claim, especially from disability rights sectors, that abortion on grounds offetal abnormality implies contempt for and rejection of disabled people—a claim that is rebutted. (Journal of Medical Ethics 2001 ;27 suppl II:ii5— ii9) Keywords: Abortion; moral status of fetus; abortion of abnormal fetuses

Killing another person if that person is a nonaggressor is regarded as a morally terrible action in most moral communities, which have major moral and legal prohibitions and sanctions against such killing. Far fewer moral communities have similar attitudes and prohibitions against killing all living beings and most cultures are willing to kill some living beings for food and for use of their skins and for other benefits such as the advancement of medicine. But what of the human being as it devel­ ops from newly fertilised ovum, to pre-embryo, embryo, fetus, new born baby, to unequivocally mature autonomous person with full moral stand­ ing including a moral and legal right not to be killed at least if he or she is not an aggressor? When and on what basis during that development does the unequivocally living human being acquire the moral status of a living human person, here used simply as a shorthand for a human being of full moral status (of the sort all readers of this paper uncontroversially ascribe to each other) including a right to life, again here used as a convenient short­ hand for the right not to be killed if not an aggres­ sor. Conversely, when, if at all, and why, is it morally justified to kill (“abort”) the developing human

being? The answers to these questions are not pri­ marily moral answers, though of course they have major moral implications. Overwhelmingly moral communities do not doubt that to kill a person, at least if he or she is not an aggressor, is, as stated above, a morally terrible action. They agree that people should be protected against such killing by acceptance by all moral agents that every person has a moral and legal right to life. What they disa­ gree about is the scope of that obligation—just what sorts of entities are persons in this sense, and why? Conversely what sorts of attributes manifested by any entity would/should ensure that it is acknowl­ edged to be a person and have full moral standing including a right to life? These are primarily meta­ physical and/or theological issues rather than directly moral issues, and people of moral integrity can and do come to carefully thought out but widely different conclusions without in any way undermining that moral integrity, without in any way being “wicked” -or stupid- points that those who are inclined to impugn the morality or intelli­ gence of those who oppose them on this issue should bear in mind and take to heart! A variety of standard positions have emerged over the centuries. At one end of the spectrum is the fundamentalist stance that claims either that the newly fertilised human ovum is a human person from the moment of conception, or at least that it must be treated as such even if we cannot know precisely when in its subsequent development it becomes “ensouled”—roughly speaking the theo­ logical equivalent of becoming a “person” as defined above. The latter position is the position of the contemporary Roman Catholic Church as expressed in its 1974 Declaration on Abortion by the Roman Congregation for the Doctrine of Faith' and is shared by some other faith communities. A little further on from the “moment of conception” stance is the 14 days stance, developed by the Warnock Commission in the UK when it was consider­ ing in vitro fertilisation.2 Here development of the “primitive streak”, at 14 days, was determined to be the cut off point after which research on, followed by destruction of, human embryos was to be prohibited—a cut off point subsequently enshrined in the Human Fertilisation and Embryology Act, 1990. Although the Warnock commission pro­ duced little justification for its choice of 14 days, this was subsequently defended in depth by the Roman Catholic philosopher Norman Ford, who argued that the primitive streak stage marked the true formation of a new living individual with a human nature.3This occurs after a two-week devel­ opmental process that follows fertilisation, within

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what he dubbed the “proembryo” and what Mary Warnock called the “pre-embryo”. Interestingly St Thomas Aquinas, one of the greatest philosophers of the Roman Catholic faith, proposed (following, as he often did, an Aristotelian lead) that ensoulment or “hominisation” did not occur until 40 days for boys and 90 days for girls.4 A traditional distinction has been that of “quickening”—the time at which the pregnant woman can feel her fetus move inside her (generally around 20-21 weeks in a first pregnancy, often sev­ eral weeks earlier in subsequent pregnancies)— undoubtedly a time of great emotional significance for the pregnant woman. Moving along the developmental spectrum, “brain life” (the development of a functioning brain),5 and the development of the ability to have experiences, including sensory experiences (sen­ tience)6have also been proposed as criteria for dif­ ferentiating the “fully fledged” human person with full moral status from the developing human being that lacks a right to life. Estimates of the onset of a capacity for sentience vary but 20-24 weeks are commonly proposed. A technological criterion favoured among many doctors working in neonatology and also in gynae­ cology is the concept of viability—the stage of fetal development at which the fetus can survive independently of the pregnant woman, given suitable intensive care.7This seems to be a steadily reducing period but is currently around 20-22 weeks. The legal criterion in most jurisdictions is birth,8 when the human fetus becomes a legal person, and certainly this corresponds with an enormous psychological change in all involved with the newborn baby—here it is, a new human being join­ ing the human community. Finally some argue that even at birth a baby is not yet a person, that a necessary attribute for being a person is a capacity to be aware of oneself, and or a capacity to value oneself, or even—in Kantian mode—a capacity for autonomous thinking, and that these capacities develop some time—at least some months—after birth.9 And to round off this thumbnail sketch some argue that a necessary con­ dition for full moral status as a human person is social acceptance as such, and that therefore with­ out such social acceptance a human being of any stage of development does not have the full moral status and rights of a person. Perhaps the most intellectually robust of these criteria are those at each end of the spectrum, ie the criterion of conception, and the criterion of a capacity for self awareness—but all these criteria have associated problems, and it has always seemed important to me for all of us involved in the abortion issue to be clear what our own positions are and how we respond to the problems and objections associated with our position, whatever it may be. Not much has changed in that respect either since the introduction of the Abortion Act in 1967.

Full moral status from conception or soon afterwards

First the standard Roman Catholic “moment of conception” stance—which for reasons of space I shall here assimilate to the official Roman Catholic stance that while we cannot know when ensoulment or hominisation occurs, we must behave as though it occurred at conception so as to prevent the dreadful sin of killing an innocent ensouled human being or human person. There are two main prob­ lems with this position—as with the Ford’s unorthodox Roman Catholic view that the human person begins at 14 days: first why should we believe that a single cell or a clump of cells is a per­ son, with the same level of moral importance as we readily acknowledge each other to have? Second are we prepared to accept the implications of this stance for medical practice—for example that we should refuse to permit not just all abortions and all in vitro research on human embryos but also even postcoital contraception, since this works in part by preventing a newly fertilised ovum from implanting into the lining of the uterus? Now sometimes the first objection is met by the argument from potential. There are two versions of this. The first is what might be dubbed the ordinary language version. According to this version, of course the newly fertilised ovum and early embryo does not have the attributes of a person—it can’t think or reflect or imagine or experience, or do things for itself. But it has the potential do all those things, it has in short the potential to become the wonderful being that we fully fledged human beings are. It should therefore be valued and respected for that potential and be accorded the same moral sta­ tus and protection that we accord each other. The problems with this version of the argument from potential is that we don’t normally, let alone neces­ sarily, accord the same value to x which has the potential to be y as we accord to y itself. An acorn has the potential to be an oak tree but not many buyers would pay the same for acorns as they would pay for oak trees. A caterpillar has the potential to become a butterfly but few nature lovers would accord the same value to caterpillars as to the but­ terflies they might become. Moreover as John Har­ ris has pointed out we all of us have the potential to be corpses—but this in no way justifies treating or valuing each other as though we already were corpses. Moreover, as he also points out, if potential to be fully fledged human people was sufficient to require being valued as if that potential had already been realised then a sperm and an egg considered together also have that potential; and, given techniques of cloning that led to Dolly the sheep, so do many ordinary cells of the human body. Are they all to be accorded a right to life? The second version of the argument from poten­ tial avoids such problems but only by asserting the conclusion it seeks to derive. According to the sec­ ond version, the newly fertilised ovum is “a human being or person with potential, not a potential human person”.10 According to this version of the argument from potential the newly fertilised ovum

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made much of evidence that at a late stage of preg­ nancy fetuses respond to stimuli in ways that indi­ cate that they are sentient, and for my own part this seems quite likely—after all there’s not much doubt (these days) that a newborn baby is sentient— capable of feeling pain and of other experiences; it seems highly implausible that this capacity is in some way switched on by the process of birth and far more likely that it is already present at some stage in utero. The question still remains, is sentience of the human fetus a plausible criterion for personhood—for fetal “moral inviolability”, including a fetal right to life? A major problem for such an assumption is that if the capacity of sentience is sufficient for person­ hood and a right to life in human fetuses why should it not equally be sufficient for personhood and a right to life in all other living beings, includ­ ing all the vertebrates that we currently are ready to kill for their meat and skins and uses in medical research? Of course many animal rights supporters would not see this as a problem at all—but merely as confirmation that our current moral and legal attitudes to animals are grievously mistaken and “speciesist”. They would agree with Jeremy Bentham, one of the founding fathers of utilitarian­ ism, that all animals who can experience pain and suffering, pleasure and happiness are of equal moral concern and that the proper expression of that moral concern is to minimise suffering and pain and maximise pleasure and happiness, whether animal or human. Without some addi­ tional premises making a special case for humans, those who would make the capacity for sentience a sufficient criterion for fetal personhood seem logically committed to a similar position, as are those who would accept as such a criterion the existence of a fetal brain with the capacity for sen­ tience. One practical moral conclusion is important to note. If sentience is not accepted as the criterion for full moral status, and abortion continues to be Brain life and the capacity for sentience What about the fetus’s development of a brain, and permitted after the stage at which the fetus has along with that its development of a capacity for developed the capacity to feel pain, then it seems sentience—a capacity to have experiences including morally important to ensure that the fetus is not sensory experiences, whether of touch or pain or of caused pain by the procedure itself—so for late sound? Are these plausible criteria for the “person- abortions some form of anaesthetic or other means hood” or moral inviolability of the human fetus? of preventing fetal pain should be part of the abor­ There seems little doubt that it is because of our tion operation. Viability is the criterion favoured by many who brains that we humans have special attributes to which we attach special moral value—of which the work in the field of neonatology, and also by some most important one is widely accepted to be our gynaecologists who accept abortion but who also capacity to be autonomous—to think reflectively believe that at some stage in their development for ourselves, or what amounts to much the same fetuses acquire a right to life after which they thing, to have “free will”. Moreover at the end of should not be aborted. There is a crucial practical our lives it is now widely accepted that it is the as well as intuitive dividing line, such doctors often death of our brains that is the fundamental feel, between those fetuses who, given intensive care determinant of our deaths and of the cessation at are capable of continuing their survival and any rate of our legal personhood. Should therefore development outside the uterus, and those who are the corresponding onset of “brain life” be the not viable in this sense and it is this viability, they determinant of the start of our moral and/or our believe, that affords a criterion for distinguishing legal personhood? And should the capacity for hav­ between those fetuses that do and do not have a ing experiences and especially sensory experiences right to life. The main problem with the viability criterion is constitute the operational evidence of the onset of such “brain life”? Some anti-abortion activists have that it is entirely dependent on our technological

and thus the early embryo just is a person from fer­ tilisation; even though its attributes as a person are not yet obvious they are all present in the genetic and organisational structure of the new human being, and left alone to develop, they will gradually emerge. While the subject bears extensive debate and sophisticated analysis, few who are not already committed to a theological requirement that a new human person begins either at fertilisation or else very soon afterwards—for example Ford’s 14 days stance3—are persuaded by either version of the argument from potential which is seen either as begging the question by asserting the disputed con­ clusion as a premise in version two, or as totally implausible special pleading in version one. Many who reject the argument from potential will none the less agree that the potential to become something of great value—for example a human person—undoubtedly belongs to human embryos and fetuses and this gives them at least a prima facie value, and in many cases, where the pregnant woman herself longs to have a new baby, makes them extremely important. But they will be unper­ suaded that this potential necessarily imparts the same value—let alone the same intrinsic value—to all human embryos and fetuses. Aquinas’s 40 days for boys and 90 days for girls may be quickly passed over, as may the suggestion that quickening—the feeling of fetal movement by the pregnant woman—is relevant to the moral sta­ tus of the fetus. In passing it is of note however that Roman Catholic thinking has by no means been univocal, either now or in the past, that ensoulment occurs at fertilisation, and that it is important to differentiate between psychological feelings that are of undoubted importance for the pregnant woman, or indeed for others, and plausible criteria for determining the intrinsic moral status of the embryo and fetus.

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Is there a ‘new ethics of abortion’?

skills. If what we are looking for is some character­ istic (s) of the developing human being itself, in which to ground its intrinsic moral status, then the skills and technologies of others are hardly likely to suffice; yet viability is a criterion that depends almost entirely on the technological skills of others. Even these days there will be an enormous difference between fetal viability in a Third World village and in a First World neonatal intensive care unit. Moreover given the exponential development of human technological inventiveness—wizardry some might call it—Aldous Huxley’s Brave New World possibilities of growing human embryos and fetuses entirely outside the human body could become reality-in which case the criterion of viability will have collapsed into the criterion of fer­ tilisation. So does the legal criterion—birth—get us out of our difficulties? Legally speaking the answer is largely yes—for UK law, like that of many other jurisdictions, is explicit that a fetus is not legally speaking a person and does not have the legal rights of persons including the right to life enjoyed by (natural) persons, whereas a born child is a person and does have a right to life. While in practical terms the simple criterion of birth is generally easy to apply and corresponds to a stage when what was previously hidden and private inside another human being is now a revealed, public, and clearly separate social entity, as a criterion for moral differ­ entiation of a human being’s intrinsic moral status it seems highly implausible. Essentially it is a crite­ rion of what might be dubbed biological geography, asserting that a human being does not have a right to life if it lies north of a vaginal introitus but has a right to life once it has passed south and has (entirely) emerged from the vagina. What morally relevant changes can there have been in the fetus in its passage from inside to outside its mother’s body to underpin such a momentous change in its intrinsic moral status? S e lf awareness

Finally, criteria that require not just a capacity for awarenesss, experience or sentience as a necessary condition for being a person with full moral status, but that require a capacity for self awareness as a criterion for personhood. Such approaches are usually grounded in the notion that what is remarkable and of special moral importance about human beings is their ability to reflect rationally, to be aware of their moral natures and their responsi­ bilities to others and to themselves, and to be able to make autonomous decisions based on such reflection, to be agents who have free will. Follow­ ing the lead of the 17th century physicianphilosopher John Locke, a capacity for self awareness is regarded as at least a necessary condi­ tion by those, including myself, who accept this approach to the attributes needed to be a person On this basis a newborn child is not a person, for neonates do not have such capacities; and therefore on this basis newborn babies would not have any intrinsic right to life stemming from their natures.

This fact alone is so counterintuitive—even horrify­ ing to some-that for many it affords a reductio ad absurdum—any argument that leads to a conclusion that newborn babies are not people and do not have a right to life must be flawed and should in any case be rejected for leading to such absurd conclusions. While such a summary way with arguments that lead to conclusions that seem absurd or at least highly counterintuitive may feel satisfying, it does not dispose of the arguments. Nor does it dispose of a widespread intuition that in the case of very severely handicapped newborn babies parents and doctors who agree that it would be better if the infant did not survive and live a life of severe handi­ cap should be permitted, morally and legally, to allow them to die, even in cases where medical and nursing intervention could be expected to save them, and even in cases where they would not per­ mit similar latitude of choice on behalf of an older handicapped child or adult. Abortion for abnormality an affront to disabled people?

It should be clear therefore that any substantive position on when a new human being should be considered to be a human person-a human being with full moral standing including a right to life and thus a right not to be killed at least if not an aggressor-has associated problems. This has not changed since these issues were debated in the 1960s. What has changed, however, is the debate about abortion on grounds of fetal abnormality, one of the least controversial clauses at the time David Steel’s Abortion Bill was being debated. These days an increasingly forceful disability rights movement is arguing that abortion on the grounds of fetal abnormality is morally and legally objec­ tionable in discriminating against disabled people and in manifesting and encouraging disrespect, hostility and contempt for disabled people. In this last section of the paper I shall give the gist of my rebuttal of this argument. First, of course, it is important to be clear that the argument is logically watertight if it is agreed that human fetuses (and embryos) are people, and thus that fetuses and embryos with disabling abnormalities are disabled people. If that is the starting position then of course the argument is impeccable, and to abort-that is, to kill-fetuses on the grounds that they have abnor­ malities that are disabling is as morally repugnant as it would be to kill adults who have disabling abnormalities. It would indeed manifest and encourage disrespect, hostility, and contempt for disabled people. But are those of us who justify abortion for suffi­ cient benefit and who therefore must reject the claim that fetuses are people or persons with full moral status including a right to life, to be found guilty of such discimination if we justify abortion on die grounds of fetal abnormality? The answer is unequivocally no! Instead what we seek to justify is availability of choice to pregnant women to prevent the creation of disabled people by aborting fetuses with

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Abortion Gillon abnormalities that would disable the people they would become—if they were allowed to develop into people. If the response to this argument is that such fetuses already have a right to life, disabled or not, then the response is, as noted above, logically impeccable but begs the question about the moral status of the fetus by asserting that it has full moral standing. If that assertion were accepted then, as noted above, it is as morally wrong to kill a disabled fetus as to kill a disabled child or adult, and as wrong to abort a normal fetus as it would be to kill a normal child or adult. If, however, the fetus is held not to have full moral status and not to have a right to life, then aborting an abnormal fetus shows no more disrespect or hostility to disabled people than aborting a normal fetus shows disrespect or hostil­ ity to people who don’t have disabilities. It shows no more disrespect to people than deciding not to become pregnant at all shows disrespect to people. To permit people to have abortions in order to allow them to choose not to bring a disabled person into being in no way justifies, let alone does it entail, any undermining of our obligations to look after and care for, respect and be fair to the disabled people who do exist. If embryos and fetuses are not yet people or persons—if they do not yet have full moral status including a right to life, then there is simply no logical connection between making abortion available to prevent the creation of a disa­ bled person and discriminating adversely against disabled people.

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Raanan Gillon is Emeritus Professor of Medical Ethics at Imperial College, London and Senior National Health Service Partner, Imperial College Medical Part­ nership. From 1981-2001 he was Editor of the Journal of Medical Ethics.

References and notes 1 As reported in Mahoney J. Bioethics and belief. London: Sheed and Ward, 1984: 67. 2 Departm ent of Social Security. Report of the committee of inquiry into human fertilisation and embryology [chair, Lady Mary Warnock]. London: HMSO, 1984: 58-66. 3 Ford N. When did I begin? Cambridge: Cambridge University Press, 1988 (throughout but especially 164-82). 4 See reference 1: 58 and reference 3: 28 and 41. 5 Goldenring J. The brain life theory: towards a consistent biological definition of humanness. Journal of Medical Ethics 1985;11:198-204 (for a critique of the putative symmetry between brain death and brain life see Jones D. Brain birth and personal identity. Journal of Medical Ethics 1989;15:173-8). 6 T he originator of the “sentience criterion” was probably Jeremy Bentham in his Introduction to the principles of morals and legislation, ch 17. Two contemporary exponents are Peter Singer in his Animal liberation. Wellingborough: Thorsons, 1976, especially chs 1 and 6; and Sumner L. Abortion and moral theory. Princeton: Princeton University Press, 1981, especially ch 4. 7 See for example Strong C, Anderson G. The moral status of the near term fetus. Journal of Medical Ethics 1989;15:23-7. 8 A useful discussion of English law in this area is in Davies M. Textbook on medical law. London: Blackstone Press, 1996: 23759. 9 See for example Tooley M. Abortion and infanticide. Oxford: Clarendon Press, 1983 especially 40-104. And Harris J. The value of life. London: Routledge and Kegan Paul, 1985 especially 7-27. 10 For this formulation see for example reference 3: 82 and 111.

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[2] JUDITH JARVIS THOMSON

A Defense of Abortion'

Most opposition to abortion relies on the premise that the fetus is a human being, a person, from the moment of conception. The premise is argued for, but, as I think, not well. Take, for example, the most common argument. We are asked to notice that the development of a human being from conception through birth into childhood is con­ tinuous; then it is said that to draw a line, to choose a point in this development and say “before this point the thing is not a person, after this point it is a person” is to make an arbitrary choice, a choice for which in the nature of things no good reason can be given. It is con­ cluded that the fetus is, or anyway that we had better say it is, a per­ son from the moment of conception. But this conclusion does not fol­ low. Similar things might be said about the development of an acorn into an oak tree, and it does not follow that acorns are oak trees, or that we had better say they are. Arguments of this form are sometimes called “slippery slope arguments”—the phrase is perhaps self-explana­ tory—and it is dismaying that opponents of abortion rely on them so heavily and uncritically. I am inclined to agree, however, that the prospects for “drawing a line” in the development of the fetus look dim. I am inclined to think also that we shall probably have to agree that the fetus has already become a human person well before birth. Indeed, it comes as a sur­ prise when one first learns how early in its life it begins to acquire human characteristics. By the tenth week, for example, it already has i. I am very m uch indebted to James Thom son for discussion, criticism , and m any helpful suggestions.

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a face, arms and legs, fingers and toes; it has internal organs, and brain activity is detectable. 2 On the other hand, I think that the premise is false, that the fetus is not a person from the moment of conception. A newly fertilized ovum, a newly implanted clump of cells, is no more a person than an acorn is an oak tree. But I shall not discuss any of this. For it seems to me to be of great interest to ask what happens if, for the sake of argument, we allow the premise. How, precisely, are we supposed to get from there to the conclusion that abortion is morally impermissible? Opponents of abortion commonly spend most of their time establishing that the fetus is a person, and hardly any time explaining the step from there to the impermissibility of abortion. Perhaps they think the step too simple and obvious to require much comment. Or perhaps instead they are simply being economical in argument. Many of those who defend abortion rely on the premise that the fetus is not a person, but only a bit of tissue that will become a person at birth; and why pay out more arguments than you have to? Whatever the explanation, I suggest that the step they take is neither easy nor obvious, that it calls for closer examination than it is commonly given, and that when we do give it this closer examination we shall feel inclined to reject it. I propose, then, that we grant that the fetus is a person. from the moment of conception. How does the argument go from here? Something like this, I take it. Every person has a right to life. So the fetus has a right to life. No doubt the mother has a right to decide what shall happen in and to her body; everyone would grant that. But surely a person's right to life is stronger and more stringent than the mother's right to decide what happens in and to her body, and so outweighs it. So the fetus may not be killed; an abortion may not be performed. It sounds plausible. But now let me ask you to imagine this. You wake up in the morning and find yourself back to back in bed with an unconscious violinist. A famous unconscious violinist. He has been found to have a fatal kidney ailment, and the Society of Music Lovers 2. Daniel Callahan, Abortion: Law, Choice and Morality (New York, 1970), p. 373· This book gives a fascinating survey of the available information on abortion. The Jewish tradition is surveyed in David M. Feldman, Birth Control in Jewish Law (New York, 1968), Part 5, the Catholic tradition in John T. Noonan, Jr., "An Almost Absolute Value in History," in The Morality of Abortion, ed. John T. Noonan, Jr. (Cambridge, Mass., 1970).

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has canvassed all the available medical records and found that you alone have the right blood type to help. They have therefore kidnapped you, and last night the violinist’s circulatory system was plugged into yours, so that your kidneys can be used to extract poisons from his blood as well as your own. The director of the hospital now tells you, "Look, we’re sorry the Society of Music Lovers did this to you—we would never have permitted it if we had known. But still, they did it, and the violinist now is plugged into you. To unplug you would be to kill him. But never mind, it’s only for nine months. By then he will have recovered from his ailment, and can safely be unplugged from you.” Is it morally incumbent on you to accede to this situation? No doubt it would be very nice of you if you did, a great kindness. But do you have to accede to it? What if it were not nine months, but nine years? Or longer still? W hat if the director of the hospital says, "Tough luck, I agree, but you’ve now got to stay in bed, with the vio­ linist plugged into you, for the rest of your life. Because remember this. All persons have a right to life, and violinists are persons. Granted you have a right to decide what happens in and to your body, but a person’s right to life outweighs your right to decide what happens in and to your body. So you cannot ever be unplugged from him.” I imagine you would regard this as outrageous, which suggests that something really is wrong with that plausible-sounding argument I mentioned a moment ago. In this case, of course, you were kidnapped; you didn’t volunteer for the operation that plugged the violinist into your kidneys. Can those who oppose abortion on the ground I mentioned make an excep­ tion for a pregnancy due to rape? Certainly. They can say that per­ sons have a right to life only if they didn’t come into existence because of rape; or they can say that all persons have a right to life, but that some have less of a right to life than others, in particular, that those who came into existence because of rape have less. But these state­ ments have a rather unpleasant sound. Surely the question of whether you have a right to life at all, or how much of it you have, shouldn’t turn on the question of whether or not you are the product of a rape. And in fact the people who oppose abortion on the ground I men­ tioned do not make this distinction, and hence do not make an excep­ tion in case of rape.

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Nor do they make an exception for a case in which the mother has to spend the nine months of her pregnancy in bed. They would agree that would be a great pity, and hard on the mother; but all the same, all persons have a right to life, the fetus is a person, and so on. I sus­ pect, in fact, that they would not make an exception for a case in which, miraculously enough, the pregnancy went on for nine years, or even the rest of the mother's life. Some won't even make an exception for a case in which continua­ tion of the pregnancy is likely to shorten the mother's life; they regard abortion as impermissible even to save the mother's life. Such cases are nowadays very rare, and many opponents of abortion do not accept this extreme view. All the same, it is a good place to begin: a number of points of interest come out in respect to it. 1. Let us call the view that abortion is impermissible even to save the mother's life “the extreme view.” I want to suggest first that it does not issue from the argument I mentioned earlier without the addition of some fairly powerful premises. Suppose a woman has become preg­ nant, and now learns that she has a cardiac condition such that she will die if she carries the baby to term. What may be done for her? The fetus, being a person, has a right to life, but as the mother is a person too, so has she a right to life. Presumably they have an equal right to life. How is it supposed to come out that an abortion may not be performed? If mother and child have an equal right to life, shouldn't we perhaps flip a coin? Or should we add to the mother's right to life her right to decide what happens in and to her body, which everybody seems to be ready to grant—the sum of her rights now outweighing the fetus' right to life? The most familiar argument here is the following. We are told that performing the abortion would be directly killing3 the child, whereas doing nothing would not be killing the mother, but only letting her die. Moreover, in killing the child, one would be killing an innocent person, for the child has committed no crime, and is not aiming at his mother's death. And then there are a variety of ways in which this 3. The term “direct” in the argum ents I refer to is a technical one. Roughly, w hat is m eant by “direct killing” is either killing as an end in itself, or killing as a m eans to som e end, for exam ple, the end o f saving som eone else’s life. See note 6, below, for an exam ple of its use.

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might be continued. ( 1 ) But as directly killing an innocent person is always and absolutely impermissible, an abortion may not be per­ formed. Or, (2 ) as directly killing an innocent person is murder, and murder is always and absolutely impermissible, an abortion may not be performed.4 Or, (3 ) as one’s duty to refrain from directly killing an innocent person is more stringent than one’s duty to keep a person from dying, an abortion may not be performed. Or, (4 ) if one’s only options are directly killing an innocent person or letting a person die, one must prefer letting the person die, and thus an abortion may not be performed.5 Some people seem to have thought that these are not further prem­ ises which must be added if the conclusion is to be reached, but that they follow from the very fact that an innocent person has a right to life.6 But this seems to me to be a mistake, and perhaps the simplest way to show this is to bring out that while we must certainly grant that innocent persons have a right to life, the theses in ( 1 ) through (4 ) are all false. Take (2 ), for example. If directly killing an inno­ cent person is murder, and thus is impermissible, then the mother’s directly killing the innocent person inside her is murder, and thus is 4 . Cf. Encyclical Letter of Pope Pius XI on Christian Marriage , St. Paul Edi­ tions (B oston, n .d .), p. 32 : “however m uch we m ay pity the m other w hose health and even life is gravely im periled in the perform ance of the duty allotted to her by nature, nevertheless w hat could ever be a sufficient reason for excu sin g in any w ay the direct murder of the innocent? T his is precisely w hat w e are dealing w ith h e r e /’ N oonan ( The Morality of Abortion , p. 43 ) reads this as follow s: “What cause can ever avail to excu se in any w ay the direct killing of the in n o­ cent? For it is a question of that." 5 . The thesis in ( 4 ) is in an interesting w ay w eaker than those in ( 1 ), ( 2 ), and ( 3 ): they rule out abortion even in cases in w hich both m other and child w ill die if the abortion is not performed. By contrast, one w ho held the view expressed in ( 4 ) could consistently say that one n eedn’t prefer lettin g two per­ sons die to killing one. 6 . Cf. the follow ing passage from Pius XII, Address to the Italian Catholic Society of M idw ives: “The baby in the m aternal breast has the right to life im m e­ diately from God.—H ence there is no m an, no hum an authority, no scien ce, no m edical, eugenic, social, econom ic or moral ‘in d ication ’ w hich can establish or grant a valid juridical ground for a direct deliberate disposition of an in n ocen t hum an life, that is a disposition w hich looks to its destruction either as an end or as a m eans to another end perhaps in itse lf not illicit.—The baby, still not born, is a m an in the sam e degree and for the sam e reason as the m other” (quoted in N oonan, The Morality of Abortion , p. 45 ).

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impermissible. But it cannot seriously be thought to be murder if the mother performs an abortion on herself to save her life. It cannot seriously be said that she must refrain, that she must sit passively by and wait for her death. Let us look again at the case of you and the violinist. There you are, in bed with the violinist, and the director of the hospital says to you, “It’s all most distressing, and I deeply sym­ pathize, but you see this is putting an additional strain on your kid­ neys, and youll be dead within the month. But you have to stay where you are all the same. Because unplugging you would be directly kill­ ing an innocent violinist, and that’s murder, and that’s impermissi­ ble.” If anything in the world is true, it is that you do not commit murder, you do not do what is impermissible, if you reach around to your back and unplug yourself from that violinist to save your life. The main focus of attention in writings on abortion has been on what a third party may or may not do in answer to a request from a woman for an abortion. This is in a way understandable. Things being as they are, there isn’t much a woman can safely do to abort herself. So the question asked is what a third party may do, and what the mother may do, if it is mentioned at all, is deduced, almost as an after­ thought, from what it is concluded that third parties may do. But it seems to me that to treat the matter in this way is to refuse to grant to the mother that very status of person which is so firmly insisted on for the fetus. For we cannot simply read off what a person may do from what a third party may do. Suppose you find yourself trapped in a tiny house with a growing child. I mean a very tiny house, and a rapidly growing child—you are already up against the wall of the house and in a few minutes you’ll be crushed to death. The child on the other hand won’t be crushed to death; if nothing is done to stop him from growing he’ll be hurt, but in the end he’ll simply burst open the house and walk out a free man. Now I could well understand it if a bystander were to say, “There’s nothing we can do for you. We cannot choose between your life and his, we cannot be the ones to decide who is to live, we cannot intervene.” But it cannot be concluded that you too can do nothing, that you cannot attack it to save your life, However innocent the child may be, you do not have to wait pas­ sively while it crushes you to death. Perhaps a pregnant woman is vaguely felt to have the status of house, to which we don’t allow the

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right of self-defense. But if the woman houses the child, it should be remembered that she is a person who houses it. I should perhaps stop to say explicitly that I am not claiming that people have a right to do anything whatever to save their lives. I think, rather, that there are drastic limits to the right of self-defense. If someone threatens you with death unless you torture someone else to death, I think you have not the right, even to save your life, to do so. But the case under consideration here is very different. In our case there are only two people involved, one whose life is threatened, and one who threatens it. Both are innocent: the one who is threatened is not threatened because of any fault, the one who threatens does not threaten because of any fault. For this reason we may feel that we bystanders cannot intervene. But the person threatened can. In sum, a woman surely can defend her life against the threat to it posed by the unborn child, even if doing so involves its death. And this shows not merely that the theses in ( i ) through (4 ) are false; it shows also that the extreme view of abortion is false, and so we need not canvass any other possible ways of arriving at it from the argu­ ment I mentioned at the outset. 2. The extreme view could of course be weakened to say that while abortion is permissible to save the mother’s life, it may not be per­ formed by a third party, but only by the mother herself. But this can­ not be right either. For what we have to keep in mind is that the mother and the unborn child are not like two tenants in a small house which has, by an unfortunate mistake, been rented to both: the mother owns the house. The fact that she does adds to the offensive­ ness of deducing that the mother can do nothing from the supposition that third parties can do nothing. But it does more than this: it casts a bright light on the supposition that third parties can do nothing. Certainly it lets us see that a third party who says “I cannot choose between you” is fooling him self if he thinks this is impartiality. If Jones has found and fastened on a certain coat, which he needs to keep him from freezing, but which Smith also needs to keep him from freezing, then it is not impartiality that says “I cannot choose between you” when Smith owns the coat. Women have said again and again “This body is my body!” and they have reason to feel angry, reason to feel that it has been like shouting into the wind. Smith, after all, is

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hardly likely to bless us if we say to him, “Of course it’s your coat, anybody would grant that it is, But no one may choose between you and Jones who is to have it.” We should really ask what it is that says “no one may choose” in the face of the fact that the body that houses the child is the mother’s body. It may be simply a failure to appreciate this fact. But it may be something more interesting, namely the sense that one has a right to refuse to lay hands on people, even where it would be just and fair to do so, even where justice seems to require that somebody do so. Thus justice might call for somebody to get Smith’s coat back from Jones, and yet you have a right to refuse to be the one to lay hands on Jones, a right to refuse to do physical violence to him. This, I think, must be granted. But then what should be said is not “no one may choose,” but only “I cannot choose,” and indeed not even this, but “I will not act,” leaving it open that somebody else can or should, and in particu­ lar that anyone in a position of authority, with the job of securing people’s rights, both can and should. So this is no difficulty. I have not been arguing that any given third party must accede to the moth­ er’s request that he perform an abortion to save her life, but only that he may. I suppose that in some views of human life the mother’s body is only on loan to her, the loan not being one which gives her any prior claim to it. One who held this view might well think it impartiality to say “I cannot choose.” But I shall simply ignore this possibility. My own view is that if a human being has any just, prior claim to anything at all, he has a just, prior claim to his own body. And perhaps this needn’t be argued for here anyway, since, as I mentioned, the argu­ ments against abortion we are looking at do grant that the woman has a right to decide what happens in and to her body. But although they do grant it, I have tried to show that they do not take seriously what is done in granting it. I suggest the same thing will reappear even more clearly when we turn away from cases in which the mother’s life is at stake, and attend, as I propose we now do, to the vastly more common cases in which a woman wants an abortion for some less weighty reason than preserving her own fife. 3. Where the mother’s life is not at stake, the argument I men­ tioned at the outset seems to have a much stronger pull. “Everyone

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has a right to life, so the unborn person has a right to life.” And isn't the child's right to life weightier than anything other than the moth­ er's own right to life, which she might put forward as ground for an abortion? This argument treats the right to life as if it were unproblematic. It is not, and this seems to me to be precisely the source of the mistake. For we should now, at long last, ask what it comes to, to have a right to life. In some views having a right to life includes having a right to be given at least the bare minimum one needs for continued life. But suppose that what in fact is the bare minimum a man needs for continued life is something he has no right at all to be given? If I am sick unto death, and the only thing that will save my life is the touch of Henry Fonda’s cool hand on my fevered brow, then all the same, I have no right to be given the touch of Henry Fonda's cool hand on my fevered brow. It would be frightfully nice of him to fly in from the West Coast to provide it. It would be less nice, though no doubt well meant, if my friends flew out to the West Coast and carried Henry Fonda back with them. But I have no right at all against any­ body that he should do this for me. Or again, to return to the story I told earlier, the fact that for continued life that violinist needs the continued use of your kidneys does not establish that he has a right to be given the continued use of your kidneys. He certainly has no right against you that you should give him continued use of your kid­ neys. For nobody has any right to use your kidneys unless you give him such a right; and nobody has the right against you that you shall give him this rig h t-if you do allow him to go on using your kidneys, this is a kindness on your part, and not something he can claim from you as his due. Nor has he any right against anybody else that they should give him continued use of your kidneys. Certainly he had no right against the Society of Music Lovers that they should plug him into you in the first place. And if you now start to unplug yourself, having learned that you will otherwise have to spend nine years in bed with him, there is nobody in the world who must try to prevent you, in order to see to it that he is given something he has a right to be given. Some people are rather stricter about the right to life. In their view, it does not include the right to be given anything, but amounts to,

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and only to, the right not to be killed by anybody. But here a related difficulty arises. If everybody is to refrain from killing that violinist, then everybody must refrain from doing ' great many different sorts of things. Everybody must refrain from slitting his throat, everybody must refrain from shooting him—and everybody must refrain from unplugging you from him. But does he have a right against everybody that they shall refrain from unplugging you from him? To refrain from doing this is to allow him to continue to use your kidneys. It could be argued that he has a right against us that we should allow him to continue to use your kidneys. That is, while he had no right against us that we should give him the use of your kidneys, it might be argued that he anyway has a right against us that we shall not now intervene and deprive him of the use of your kidneys. I shall come back to third-party interventions later. But certainly the violinist has no right against you that you shall allow him to continue to use your kidneys. As I said, if you do allow him to use them, it is a kindness on your part, and not something you owe him. The difficulty I point to here is not peculiar to the right to life. It reappears in connection with all the other natural rights; and it is something which an adequate account of rights must deal with. For present purposes it is enough just to draw attention to it. But I would stress that I am not arguing that people do not have a right to life— quite to the contrary, it seems to me that the primary control we must place on the acceptability of an account of rights is that it should turn out in that account to be a truth that all persons have a right to life. I am arguing only that having a right to life does not guarantee hav­ ing either a right to be given the use of or a right to be allowed con­ tinued use of another person’s body—even if one needs it for life itself. So the right to life will not serve the opponents of abortion in the very simple and clear way in which they seem to have thought it would. 4. There is another way to bring out the difficulty. In the most ordi­ nary sort of case, to deprive someone of what he has a right to is to treat him unjustly. Suppose a boy and his small brother are jointly given a box of chocolates for Christmas. If the older boy takes the box and refuses to give his brother any of the chocolates, he is unjust to him, for the brother has been given a right to half of them. But

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suppose that, having learned that otherwise it means nine years in bed with that violinist, you unplug yourself from him. You surely are not being unjust to him, for you gave him no right to use your kid­ neys, and no one else can have given him any such right. But we have to notice that in unplugging yourself, you are killing him; and violin­ ists, like everybody else, have a right to life, and thus in the view we were considering just now, the right not to be killed. So here you do what he supposedly has a right you shall not do, but you do not act unjustly to him in doing it. The emendation which may be made at this point is th is: the right to life consists not in the right not to be killed, but rather in the right not to be killed unjustly. This runs a risk of circularity, but never mind: it would enable us to square the fact that the violinist has a right to life with the fact that you do not act unjustly toward him in unplugging yourself, thereby killing him. For if you do not kill him unjustly, you do not violate his right to life, and so it is no wonder you do him no injustice. But if this emendation is accepted, the gap in the argument against abortion stares us plainly in the face: it is by no means enough to show that the fetus is a person, and to remind us that all persons have a right to life—we need to be shown also that killing the fetus violates its right to life, i.e., that abortion is unjust killing. And is it? I suppose we may take it as a datum that in a case of pregnancy due to rape the mother has not given the unborn person a right to the use of her body for food and shelter. Indeed, in what pregnancy could it be supposed that the mother has given the unborn person such a right? It is not as if there were unborn persons drifting about the world, to whom a woman who wants a child says “I invite you in.” But it might be argued that there are other ways one can have acquired a right to the use of another person's body than by having been invited to use it by that person. Suppose a woman voluntarily indulges in intercourse, knowing of the chance it will issue in preg­ nancy, and then she does become pregnant; is she not in part respon­ sible for the presence, in fact the very existence, of the unborn person inside her? No doubt she did not invite it in. But doesn't her partial responsibility for its being there itself give it a right to the use of her

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body?7 If so, then her aborting it would be more like the boy's taking away the chocolates, and less like your unplugging yourself from the violinist—doing so would be depriving it of what it does have a right to, and thus would be doing it an injustice. And then, too, it might be asked whether or not she can kill it even to save her own life: If she voluntarily called it into existence, how can she now kill it, even in self-defense? The first thing to be said about this is that it is something new. Opponents of abortion have been so concerned to make out the inde­ pendence of the fetus, in order to establish that it has a right to life, just as its mother does, that they have tended to overlook the possible support they might gain from making out that the fetus is dependent on the mother, in order to establish that she has a special kind of responsibility for it, a responsibility that gives it rights against her which are not possessed by any independent person—such as an ailing violinist who is a stranger to her. On the other hand, this argument would give the unborn person a right to its mother’s body only if her pregnancy resulted from a volun­ tary act, undertaken in full knowledge of the chance a pregnancy might result from it. It would leave out entirely the unborn person whose existence is due to rape. Pending the availability of some fur­ ther argument, then, we would be left with the conclusion that unborn persons whose existence is due to rape have no right to the use of their mothers’ bodies, and thus that aborting them is not depriving them of anything they have a right to and hence is not unjust killing. And we should also notice that it is not at all plain that this argu­ ment really does go even as far as it purports to. For there are cases and cases, and the details make a difference. If the room is stuffy, and I therefore open a window to air it, and a burglar climbs in, it would be absurd to say,“Ah, now he can stay, she’s given him a right to the use of her house—for she is partially responsible for his presence there, having voluntarily done what enabled him to get in, in full knowledge that there are such things as burglars, and that burglars 7. The need for a discussion of this argum ent was brought home to me by m em bers o f the Society for E thical and Legal Philosophy, to whom this paper w as originally presented.

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burgle.” It would be still more absurd to say this if I had had bars installed outside my windows, precisely to prevent burglars from get­ ting in, and a burglar got in only because of a defect in the bars. It remains equally absurd if we imagine it is not a burglar who climbs in, but an innocent person who blunders or falls in. Again, suppose it were like this: people-seeds drift about in the air like pollen, and if you open your windows, one may drift in and take root in your carpets or upholstery. You don't want children, so you fix up your windows with fine mesh screens, the very best you can buy. As can happen, however, and on very, very rare occasions does happen, one of the screens is defective; and a seed drifts in and takes root. Does the person-plant who now develops have a right to the use of your house? Surely not—despite the fact that you voluntarily opened your windows, you knowingly kept carpets and upholstered furniture, and you knew that screens were sometimes defective. Someone may argue that you are responsible for its rooting, that it does have a right to your house, because after all you could have lived out your life with bare floors and furniture, or with sealed windows and doors. But this won't do—for by the same token anyone can avoid a pregnancy due to rape by having a hysterectomy, or anyway by never leaving home without a (reliable!) army. It seems to me that the argument we are looking at can establish at most that there are some cases in which the unborn person has a right to the use of its mother's body, and therefore some cases in which abortion is unjust killing. There is room for much discussion and argument as to precisely which, if any. But I think we should side­ step this issue and leave it open, for at any rate the argument cer­ tainly does not establish that all abortion is unjust killing. 5. There is room for yet another argument here, however. We surely must all grant that there may be cases in which it would be morally indecent to detach a person from your body at the cost of his life. Suppose you learn that what the violinist needs is not nine years of your life, but only one hour: all you need do to save his life is to spend one hour in that bed with him. Suppose also that letting him use your kidneys for that one hour would not affect your health in the slightest. Admittedly you were kidnapped. Admittedly you did not give

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anyone permission to plug him into you. Nevertheless it seems to me plain you ought to allow him to use your kidneys for that hour-it would be indecent to refuse. Again, suppose pregnancy lasted only an hour, and constituted no threat to life or health. And suppose that a woman becomes pregnant as a result of rape. Admittedly she did not voluntarily do anything to bring about the existence of a child. Admittedly she did nothing at all which would give the unborn person a right to the use of her body. All the same it might well be said, as in the newly emended violinist story, that she ought to allow it to remain for that hour—that it would be indecent in her to refuse. Now some people are inclined to use the term “right” in such a way that it follows from the fact that you ought to allow a person to use your body for the hour he needs, that he has a right to use your body for the hour he needs, even though he has not been given that right by any person or act. They may say that it follows also that if you refuse, you act unjustly toward him. This use of the term is perhaps so common that it cannot be called wrong; nevertheless it seems to me to be an unfortunate loosening of what we would do better to keep a tight rein on. Suppose that box of chocolates I mentioned earlier had not been given to both boys jointly, but was given only to the older boy. There he sits, stolidly eating his way through the box, his small brother watching enviously. Here we are likely to say “You ought not to be so mean. You ought to give your brother some of those chocolates.” My own view is that it just does not follow from the truth of this that the brother has any right to any of the chocolates. If the boy refuses to give his brother any, he is greedy, stingy, callous—but not unjust. I suppose that the people I have in mind will say it does follow that the brother has a right to some of the chocolates, and thus that the boy does act unjustly if he refuses to give his brother any. But the effect of saying this is to obscure what we should keep distinct, namely the difference between the boy's refusal in this case and the boy's refusal in the earlier case, in which the box was given to both boys jointly, and in which the small brother thus had what was from any point of view clear title to half. A further objection to so using the term “right” that from the fact that A ought to do a thing for B, it follows that B has a right against A

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that A do it for him, is that it is going to make the question of whether or not a man has a right to a thing turn on how easy it is to provide him with it; and this seems not merely unfortunate, but morally unac­ ceptable. Take the case of Henry Fonda again. I said earlier that I had no right to the touch of his cool hand on my fevered brow, even though I needed it to save my life. I said it would be frightfully nice of him to fly in from the West Coast to provide me with it, but that I had no right against him that he should do so. But suppose he isn't on the West Coast. Suppose he has only to walk across the room, place a hand briefly on my brow—and lo, my life is saved. Then surely he ought to do it, it would be indecent to refuse. Is it to be said “Ah, well, it follows that in this case she has a right to the touch of his hand on her brow, and so it would be an injustice in him to refuse”? So that I have a right to it when it is easy for him to provide it, though no right when it's hard? It's rather a shocking idea that anyone's rights should fade away and disappear as it gets harder and harder to accord them to him. So my own view is that even though you ought to let the violinist use your kidneys for the one hour he needs, we should not conclude that he has a right to do so—we should say that if you refuse, you are, like the boy who owns all the chocolates and will give none away, self-centered and callous, indecent in fact, but not unjust. And simi­ larly, that even supposing a case in which a woman pregnant due to rape ought to allow the unborn person to use her body for the hour he needs, we should not conclude that he has a right to do so; we should conclude that she is self-centered, callous, indecent, but not unjust, if she refuses. The complaints are no less grave; they are just different. However, there is no need to insist on this point. If anyone does wish to deduce “he has a right” from “you ought,” then all the same he must surely grant that there are cases in which it is not morally required of you that you allow that violinist to use your kid­ neys, and in which he does not have a right to use them, and in which you do not do him an injustice if you refuse. And so also for mother and unborn child. Except in such cases as the unborn person has a right to demand it—and we were leaving open the possibility that there may be such cases—nobody is morally required to make large sacri­ fices, of health, of all other interests and concerns, of all other duties

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and commitments, for nine years, or even for nine months, in order to keep another person alive. 6. We have in fact to distinguish between two kinds of Samaritan: the Good Samaritan and what we might call the Minimally Decent Samaritan. The story of the Good Samaritan, you will remember, goes like this: A certain man went down from Jerusalem to Jericho, and fell among thieves, which stripped him of his raiment, and wounded him, and departed, leaving him h alf dead. And by chance there came down a certain priest that way; and when he saw him, he passed by on the other side. And likewise a Levite, when he was at the place, came and looked on him, and passed by on the other side. But a certain Samaritan, as he journeyed, came where he was; and when he saw him he had compassion on him. And went to him, and bound up his wounds, pouring in oil and wine, and set him on his own beast, and brought him to an inn, and took care of him. And on the morrow, when he departed, he took out two pence, and gave them to the host, and said unto him, “Take care of him; and whatsoever thou spendest more, when I come again, I will repay thee.” (Luke 10:30-35) The Good Samaritan went out of his way, at some cost to himself, to help one in need of it. We are not told what the options were, that is, whether or not the priest and the Levite could have helped by doing less than the Good Samaritan did, but assuming they could have, then the fact they did nothing at all shows they were not even Minimally Decent Samaritans, not because they were not Samaritans, but because they were not even minimally decent. These things are a matter of degree, of course, but there is a differ­ ence, and it comes out perhaps most clearly in the story of Kitty Genovese, who, as you will remember, was murdered while thirtyeight people watched or listened, and did nothing at all to help her. A Good Samaritan would have rushed out to give direct assistance

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against the murderer. Or perhaps we had better allow that it would have been a Splendid Samaritan who did this, on the ground that it would have involved a risk of death for himself. But the thirty-eight not only did not do this, they did not even trouble to pick up a phone to call the police. Minimally Decent Samaritanism would call for doing at least that, and their not having done it was monstrous. Mter telling the story of the Good Samaritan, Jesus said "Go, and do thou likewise." Perhaps he meant that we are morally required to act as the Good Samaritan did. Perhaps he was urging people to do more than is morally required of them. At all events it seems plain that it was not morally required of any of the thirty-eight that he rush out to give direct assistance at the risk of his own life, and that it is not morally required of anyone that he give long stretches of his lifenine years or nine months-to sustaining the life of a person who has no special right (we were leaving open the possibility of this) to demand it. Indeed, with one rather striking class of exceptions, no one in any country in the world is legally required to do anywhere near as much as this for anyone else. The class of exceptions is obvious. My main concern here is not the state of the law in respect to abortion, but it is worth drawing attention to the fact that in no state in this country is any man compelled by law to be even a Minimally Decent Samaritan to any person; there is no law under which charges could be brought against the thirty-eight who stood by while Kitty Genovese died. By contrast, in most states in this country women are compelled by law to be not merely Minimally Decent Samaritans, but Good Samaritans to unborn persons inside them. This doesn't by itself settle anything one way or the other, because it may well be argued that there should be laws in this country-as there are in many European countriescompelling at least Minimally Decent Samaritanism. 8 But it does show that there is a gross injustice in the existing state of the law. And it shows also that the groups currently working against liberalization of abortion laws, in fact working toward having it declared unconstitu8. For a discussion of the difficulties involved, and a survey of the European experience with such laws, see The Good Samaritan and the Law, ed. James M. Ratcliffe (New York, xg66).

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tional for a state to permit abortion, had better start working for the adoption of Good Samaritan laws generally, or earn the charge that they are acting in bad faith. I should think, myself, that Minimally Decent Samaritan laws would be one thing, Good Samaritan laws quite another, and in fact highly improper. But we are not here concerned with the law. What we should ask is not whether anybody should be compelled by law to be a Good Samaritan, but whether we must accede to a situation in which somebody is being compelled—by nature, perhaps—to be a Good Samaritan. We have, in other words, to look now at third-party inter­ ventions. I have been arguing that no person is morally required to make large sacrifices to sustain the life of another who has no right to demand them, and this even where the sacrifices do not include life itself; we are not morally required to be Good Samaritans or any­ way Very Good Samaritans to one another. But what if a man cannot extricate himself from such a situation? What if he appeals to us to extricate him? It seems to me plain that there are cases in which we can, cases in which a Good Samaritan would extricate him. There you are, you were kidnapped, and nine years in bed with that violinist lie ahead of you. You have your own life to lead. You are sorry, but you simply cannot see giving up so much of your life to the sustaining of his. You cannot extricate yourself, and ask us to do so. I should have thought that—in light of his having no right to the use of your body— it was obvious that we do not have to accede to your being forced to give up so much. We can do what you ask. There is no injustice to the violinist in our doing so. 7. Following the lead of the opponents of abortion, I have through­ out been speaking of the fetus merely as a person, and what I have been asking is whether or not the argument we began with, which pro­ ceeds only from the fetus’ being a person, really does establish its con­ clusion. I have argued that it does not. But of course there are arguments and arguments, and it may be said that I have simply fastened on the wrong one. It may be said that what is important is not merely the fact that the fetus is a person, but that it is a person for whom the woman has a special kind of responsibility issuing from the fact that she is its mother. And it might be argued that all my analogies are therefore irrelevant—for you do

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not have that special kind of responsibility for that violinist, Henry Fonda does not have that special kind of responsibility for me. And our attention might be drawn to the fact that men and women both are compelled by law to provide support for their children. I have in effect dealt (briefly) with this argument in section 4 above; but a (still briefer) recapitulation now may be in order. Surely we do not have any such “special responsibility” for a person unless we have assumed it, explicitly or implicitly. If a set of parents do not try to prevent pregnancy, do not obtain an abortion, and then at the time of birth of the child do not put it out for adoption, but rather take it home with them, then they have assumed responsibility for it, they have given it rights, and they cannot now withdraw support from it at the cost of its life because they now find it difficult to go on providing for it. But if they have taken all reasonable precautions against hav­ ing a child, they do not simply by virtue of their biological relation­ ship to the child who comes into existence have a special responsi­ bility for it. They may wish to assume responsibility for it, or they may not wish to. And I am suggesting that if assuming responsibility for it would require large sacrifices, then they may refuse. A Good Samari­ tan would not refuse—or anyway, a Splendid Samaritan, if the sacri­ fices that had to be made were enormous. But then so would a Good Samaritan assume responsibility for that violinist; so would Henry Fonda, if he is a Good Samaritan, fly in from the West Coast and assume responsibility for me. 8. My argument will be found unsatisfactory on two counts by many of those who want to regard abortion as morally permissible. First, while I do argue that abortion is not impermissible, I do not argue that it is always permissible. There may well be cases in which carrying the child to term requires only Minimally Decent Samaritanism of the mother, and this is a standard we must not fall below. I am inclined to think it a merit of my account precisely that it does not give a general yes or a general no. It allows for and supports our sense that, for example, a sick and desperately frightened fourteen-year-old schoolgirl, pregnant due to rape, may of course choose abortion, and that any law which rules this out is an insane law. And it also allows for and supports our sense that in other cases resort to abortion is even positively indecent. It would be indecent in the woman to request an

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abortion, and indecent in a doctor to perform it, if she is in her seventh month, and wants the abortion just to avoid the nuisance of postpon­ ing a trip abroad. The very fact that the arguments I have been draw­ ing attention to treat all cases of abortion, or even all cases of abortion in which the mother’s life is not at stake, as morally on a par ought to have made them suspect at the outset. Secondly, while I am arguing for the permissibility of abortion in some cases, I am not arguing for the right to secure the death of the unborn child. It is easy to confuse these two things in that up to a certain point in the life of the fetus it is not able to survive outside the mother’s body; hence removing it from her body guarantees its death. But they are importantly different. I have argued that you are not morally required to spend nine months in bed, sustaining the life of that violinist; but to say this is by no means to say that if, when you unplug yourself, there is a miracle and he survives, you then have a right to turn round and slit his throat. You may detach yourself even if this costs him his life; you have no right to be guaranteed his death, by some other means, if unplugging yourself does not kill him. There are some people who will feel dissatisfied by this feature of my argu­ ment. A woman may be utterly devastated by the thought of a child, a bit of herself, put out for adoption and never seen or heard of again. She may therefore want not merely that the child be detached from her, but more, that it die. Some opponents of abortion are inclined to regard this as beneath contempt—thereby showing insensitivity to what is surely a powerful source of despair. All the same, I agree that the desire for the child’s death is not one which anybody may gratify, should it turn out to be possible to detach the child alive. At this place, however, it should be remembered that we have only been pretending throughout that the fetus is a human being from the moment of conception. A very early abortion is surely not the killing of a person, and so is not dealt with by anything I have said here.

[3] JOHN F1NN1S

The Rights and Wrongs of Abortion: A Reply to Judith Thomson

Fortunately, none of the arguments for and against abortion need be expressed in terms of “rights.” As we shall see, Judith Thomson vir­ tually admits as much in her “A Defense of Abortion.”1 But since she has chosen to conduct her case by playing off a “right to life” against a “right to decide what happens in and to one’s body,” I shall begin by showing how this way of arguing about the rights and wrongs of abortion needlessly complicates and confuses the issue. It is con­ venient and appropriate to speak of “rights” for purposes and in con­ texts which I shall try to identify; it is most inconvenient and inappro­ priate when one is debating the moral permissibility of types of action —types such as “abortions performed without the desire to kill,” which is the type of action Thomson wishes to defend as morally permissible under most circumstances. So in section I of this essay I shall show how her specification and moral characterization of this type of action are logically independent of her discussion of “rights.” Then in section II I shall outline some principles of moral characterization and of moral permissibility, principles capable of explaining some of the moral condemnations which Thomson expresses but which remain all too vulnerable and obscure in her paper. In section III I shall show how the elaboration of those principles warrants those condemnations of abortion which Thomson thinks mistaken as well as many of those attributions of human rights which she so much takes for granted. In section IV I briefly state the reason (misstated by Thomson and also i. Philosophy & Public Affairs i , no. i (F a ll 1 9 7 1 ): 47-66. Otherwise un ­ identified page references in the text are to this article.

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by Wertheimer)2 why the foetus from conception has human rights, i.e. should be given the same consideration as other human beings. i Thomson's reflections on rights develop in three stages. (A ) She indicates a knot of problems about what rights are rights to; she dwells particularly on the problem “what it comes to, to have a right to life” (p. 55). (B ) She indicates, rather less clearly, a knot of prob­ lems about the source of rights; in particular she suggests that, over a wide range (left unspecified by her) of types of right, a person has a right only to what he has “title” to by reason of some gift, concession, grant or undertaking to him by another person. (C ) She cuts both these knots by admitting (but all too quietly) that her whole argument about abortion concerns simply what is “morally required” or “morally permissible” ; that what is in question is really the scope and source of the mother's responsibility (and only derivatively, by entailment, the scope and source of the unborn child's rights). I shall now ex­ amine these three stages a little more closely, and then (D ) indicate why I think it useful to have done so. (A ) How do we specify the content of a right? What is a right a right to? Thomson mentions at least nine different rights which a per­ son might rightly or wrongly be said to have.3 Of these nine, seven 2. Roger W ertheimer, “U nderstanding the Abortion Argum ent,” Philosophy &

Public Affairs 1, no. 1 (F a ll 1 9 7 1 ): 67-95. 3. Rights w hich Thom son is w illin g to allow that a person has: R i. a right to life (p . 5 1 ); R2. a right to decide w hat happens in and to one’s body (p. 5 0 ) (to be equated, apparently, w ith a just prior claim to one’s own body, p. 5 4 ); R3. a right to defend on eself (i.e. to self-defense, p. 5 3 ); R4. a right to refuse to lay hands on other people (ev en w hen it would be just and fair to do so, p. 5 4 ) —more precisely, a right not to lay hands on other people. . . . Rights w hich she thinks it w ould be coherent but m istaken to claim that a person has or in any event always has: R5. a right to demand that som eone else give one assistance (p . 6 3 ) — more precisely, a right to be given assistance by . . . ; R6. a right to be given w hatever one needs for continued life (p. 5 5 ); R7. a right to the use of (or to be given, or to be allowed to continue, the use o f) som eone else’s body (or h o u se) (p. 5 6 );

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have the same logical structure;*4 viz., in each instance, the alleged right is a right with respect to P’s action (performance, omission) as an action which may affect Q. In some oi these seven instances,5 the right with respect to P’s action is P’s right (which Hohfeld6 called a privilege and Hohfeldians call a liberty). In the other instances,7 the right with respect to P’s action is Q’s right (which Hohfeldians call a “claim-right” ). But in all these seven instances there is what I shall call a “Hohfeldian right” : to assert a Hohfeldian right is to assert a three-term relation between two persons and the action of one of those persons insofar as that action concerns the other person. The other two rights mentioned by Thomson have a different logical structure.8 In both these instances, the alleged right is a right with respect to a thing (one’s “own body,” or the state of affairs referred to as one’s “life” ). Here the relation is two-term: between one person and some thing or state of affairs. Rights in this sense cannot be com­ pletely analyzed in terms of some unique combination of Hohfeldian rights.9 P’s right to a thing (land, body, life) can and normally should be secured by granting or attributing Hohfeldian rights to him or to others; but just which combination of such Hohfeldian rights will properly or best secure his single right to the thing in question will vary according to time, place, person and circumstance. And since moral judgments centrally concern actions, it is this specification of Hohfeldian rights that we need for moral purposes, rather than in­ vocations of rights to things. Since Thomson concentrates on the problematic character of the “right to life,” I shall illustrate what I have just said by reference to the “right to one’s own body,” which she should (but seems, in pracR8. a right not to be killed by anybody (p . 5 6 ); R9. a right to slit another’s throat (a n in stan ce, apparently, of a “right to be guaranteed his death” ) (p. 6 6 ). 4. N am ely, R3 through Rg in the list of note 3 above. 5. N am ely, R3, R4 and, in one of their senses, R7 and Rg. 6. W. N . H ohfeld, Fundamental Legal Conceptions (N e w Haven, 1 9 2 3 ). 7. N am ely, R5, R6, R8 and, in another of their senses, R7 and R9. 8. N am ely, R i and R2. 9. This proposition is elaborated in a juridical context by A. M. Honoré, “Rights of Exclusion and Im m unities against D ivesting,” University of Tulane Law Review 34 ( i 9 6 0 ) : 453.

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tice, not to) regard as equally problematic. Now her two explicit ver­ sions of this right are: one’s “just, prior claim to his own body,” and one’s “right to decide what happens in and to one’s body.” But both versions need much specification10before they can warrant moral judg­ ments about particular sorts of action. For example, the “right to de­ cide” may be either (i) a right (Hohfeldian liberty) to do things to or with one’s own body (e.g. to remove those kidney plugs, or that baby, from it—but what else? anything? do I have the moral liberty to decide not to raise my hand to the telephone to save Kitty Genovese from her murderers? cf. pp. 62-63); or (ii) a right (Hohfeldian claim-right) that other people shall not (at least without one’s permission) do things to or with one’s own body (e.g. draw sustenance from, or in­ habit, it—but what else? anything?); or (iii) some combination of these forms of right with each other or with other forms of right such as (a ) the right (Hohfeldian power) to change another person’s right (liberty) to use one’s body by making a grant of or permitting such use ( any such use?), or (b ) the right (Hohfeldian immunity) not to have one’s right (claim-right) to be free from others’ use of one’s body diminished or affected by purported grants or permissions by third parties. And as soon as we thus identify these possible sorts of right, available to give concrete moral content to the “right to one’s body,” it becomes obvious that the actions which the right entitles, disentitles or requires one to perform (or entitles, disentitles or re­ quires others to perform) vary according to the identity and circum­ stances of the two parties to each available and relevant Hohfeldian 10. Insufficient specification causes needless problems, besides those m en­ tioned in the text. For exam ple, against “so using the term ‘right’ that from the fact that A ought to do a thing for B, it follow s that B has a right against A that A do it for him ,” Thom son objects that any such use of the term “right” is “going to m ake the question of w hether or not a m an has a right to a thing turn on how easy it is to provide him w ith it” (pp. 60-61); and she adds that it’s “rather a shocking idea that anybody’s rights should fade away and disappear as it gets harder and harder to accord them to him ” (p. 6 1 ). So she says she has no “right” to the touch o f Henry Fonda’s cool hand, because , although he ought to cross the room to touch her brow (an d thus save her life ), he is not morally obliged to cross America to do so. But this objection rests merely on inadequate specification of the right as against Henry Fonda. For if we say that she has a right that Henry Fonda should cross-the-room-to-touch-her-fevered-brow, and that she has no right that he should cross-America-to-touch-her-fevered-brow, then we can ( i f we lik e!) continue to deduce rights from duties.

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right. And this, though she didn’t recognize it, is the reason why Thom­ son found the “right to life” problematic, too. (B ) I suspect it was her concentration on non-Hohfeldian rights ( “title” to things like chocolates or bodies) that led Thomson to make the curious suggestion which appears and reappears, though with a very uncertain role, in her paper. I mean, her suggestion that we should speak of “rights” only in respect of what a man has “title” to (usually, if not necessarily, by reason of gift, concession or grant to him ). This suggestion,11 quite apart from the dubious centrality it accords to ownership and property in the spectrum of rights, causes needless confusion in the presentation of Thomson’s defense of abortion. For if the term “right” were to be kept on the “tight rein” which she sug­ gests (p. 60), then (a ) the Popes and others whose appeal to “the right to life” she is questioning would deprive her paper of its starting point and indeed its pivot by simply rephrasing their appeal so as to elimi­ nate all reference to rights (for, as I show in the next section, they are not alleging that the impropriety of abortion follows from any grant, gift or concession of “rights” to the unborn child); and (b) Thomson would likewise have to rephrase claims she herself makes, such as that innocent persons certainly have a right to life, that mothii. It is perhaps worth pointing out that, even if we restrict our attention to the rights involved in gifts, concessions, grants, contracts, trusts and the like, T hom son’s proposed reining-in o f the term “right” w ill be rather inconvenient. Does only the donee have the “rights”? Suppose that u n cle U gives a box of chocolates to nephew N i, w ith instructions to share it w ith nephew N 2, and asks father F to see that this sharing is done. T hen w e w ant to be able to say that U has a right that N i and N 2 shall each get their share, that N i shall give N 2 that share, that F shall see to it that this is done, and so on; and that N i has the right to his share, the right not to be interfered w ith by F or N 2 or anyone else in eating his share, and so on; and that N 2 has a sim ilar set of rights; and that F has the right to take steps to enforce a fair distribution, the right not to be interfered w ith in taking those steps, and so on. Since disputes m ay arise about any one of these relations betw een the various persons and their actions and the chocolates thereby affected, it is convenient to have the term “right” on a loose rein, to let it ride round the circle of relations, picking up the action in dispute and fitting the com peting claim s about “the right thing to do” into intelligible and typical three-term relationships. Yet som e of the rights involved in the gift of the chocolates, for exam ple U’s rights, are not acquired by any grant to the right­ holder.

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ers have the right to abort themselves to save their lives, that P has a right not to be tortured to death by Q even if R is threatening to kill Q unless Q does so, and so on. But if such rephrasing is possible (as indeed it is), then it is obvious that suggestions about the proper or best way to use the term “a right” are irrelevant to the substantive moral defense or critique of abortion. But this terminological suggestion is linked closely with Thomson’s substantive thesis that we do not have any "special [scil. Good Samari­ tan or Splendid Samaritan] responsibility” for the life or well-being of others "unless we have assumed it, explicitly or implicitly” (p. 65). It is this (or some such) thesis about responsibility on which Thomson’s whole argument, in the end, rests. (C ) Thomson’s explicit recognition that her defense of abortion need not have turned on the assertion or denial of rights comes rather late in her paper, when she says that there is "no need to insist on” her suggested reined-in use of the term "right” : If anyone does wish to deduce "he has a right” from "you ought,” then all the same he must surely grant that there are cases in which it is not morally required of you that you allow that violinist to use your kidneys. . . .12 And so also for mother and unborn child. Except in such cases as the unborn person has a right to demand it . . . nobody is morally required to make large sacrifices . . . in order to keep another person alive (pp. 61-62). In short, the dispute is about what is "morally required” (i.e. about what one "must” and, for that matter, "may” or "can” [not] do: see p. 52); that is to say, about the rights and wrongs of abortion. True, on page 61 there is still that "right to demand large sacrifices” clutter­ ing up the margins of the picture. But when we come to the last pages of her paper (pp. 64-65) even that has been set aside, and the real 12. The sentence continues: “and in w hich he does not have a right to use them , and in w hich you do not do him an injustice if you refuse.” But these are m erely rem nants of the “rhetoric” in w hich she has cast her argument. N otice, incidentally, that her suggestion that “justice” and “in ju stice” should be re­ stricted to respect for and violation of rights in her reined-in sense is of no im portance sin ce she grants that actions not in her sense unjust m ay be selfcentered, callous and indecent, and that these vices are “no less grave” (p . 6 1 ).

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question is identified as not whether the child has a “right to demand large sacrifices” of its mother, but whether the mother has a “special responsibility” to or for the child (since, if she has, then she may be morally required to make large sacrifices for it and therefore we will be able to assert, by a convenient locution, the child’s “right to [de­ mand] those sacrifices” ). (D ) So in the end most of the argument about rights was a red herring. I have bothered to track down this false trail, not merely to identify some very common sorts and sources of equivocation (more will come to light in the next two sections), but also to show how Thomson’s decision to conduct her defense in terms of “rights” makes it peculiarly easy to miss a most important weak point in her defense. This weak point is the connection or relation between one’s “special responsibilities” and one’s ordinary (not special) responsibilities; and one is enabled to miss it easily if one thinks (a ) that the whole prob­ lem is essentially one of rights, (b ) that rights typically or even essentially depend on grant, concession, assumption, etc., (c ) that special responsibilities likewise depend on grants, concessions, as­ sumptions, etc., and (d ) that therefore the whole moral problem here concerns one’s special responsibilities. Such a train of thought is indeed an enthymeme, if not a downright fallacy; but that is not sur­ prising, since I am commenting here not on an argument offered by Thomson but on a likely effect of her “rhetoric.” What Thomson, then, fails to attend to adequately is the claim (one of the claims implicit, I think, in the papal and conservative rhetoric of rights) that the mother’s duty not to abort herself is not an incident of any special responsibility which she assumed or undertook for the child, but is a straightforward incident of an ordinary duty everyone owes to his neighbor. Thomson indeed acknowledges that such ordi­ nary nonassumed duties exist and are as morally weighty as duties of justice in her reined-in sense of “justice”; but I cannot discern the principles on which she bases, and (confidently) delimits the range of, these duties.13 13. Perhaps this is the point at w h ich to note how dubious is T hom son’s as­ sertion that “in no state in this country is any m an com pelled by law to be even a M inim ally D ecent Sam aritan to any person,” and her in sin u ation that this is a m anifestation o f discrim ination against wom en. T his sounds so odd

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She speaks, for instance, about “the drastic limits to the right of selfdefense” : “If someone threatens you with death unless you torture someone else to death, I think you have not the right, even to save your life, to do so” (p. 53). Yet she also says: “If anything in the world is true, it is that you do n o t . . . do what is impermissible, if you reach around to your back and unplug yourself from that violinist to save your life” (p. 52). So why, in the first case, has one the strict responsibility not to bring about the death demanded? Surely she is not suggesting that the pain ( “torture” ) makes the difference, or that it is morally permissible to kill painlessly another person on the orders of a third party who threatens you with death for noncompli­ ance? And, since she thinks that “nobody is morally required to make large sacrifices, of health, of all other interests and concerns, of all other duties and commitments, for nine years, or even for nine months, in order to keep another person alive” (p. 62), will she go on to say that it is permissible, when a third party threatens you with such “large sacrifices” (though well short of your life), to kill (pain­ lessly) another person, or two or ten other persons? If Thomson balks at such suggestions, I think it must be because she does in the end rely on some version of the distinction, forced underground in her paper, between “direct killing” and “not keeping another person alive.” The more one reflects on Thomson’s argument, the more it seems to turn and trade on some version of this distinction. Of course she starts by rejecting the view that it is always wrong to directly kill, be­ cause that view would (she thinks) condemn one to a lifetime plugged into the violinist. But she proceeds, as we have noted, to reject at least one form of killing to save one’s life, on grounds that seem to have nothing to do with consequences and everything to do with the formal com ing from a country in w hich a young m an, not a young wom an, is com pelled by law to “give up long stretches of his life ” to defending his country at con­ siderable “risk of death for h im self.” True, he is not doing this for “a person who has no special right to dem and it”; indeed, w hat makes active military service tough is that one is not risking one’s life to save anybody in particular from any particular risk. And are w e to say that young m en have assumed a “special responsibility” for defending other people? W ouldn’t that be a gross fiction w hich only a lam e moral theory could tempt us to indulge in? But it is just this sort of social contractarianism that Thom son is tem pting us with.

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context and thus structure of one’s action (the sort of formal consid­ erations that usually are wrapped up, as we shall see, in the word “direct” ). And Indeed the whole movement of he. argument in defense of abortion is to assimilate abortion to the range of Samaritan prob­ lems, on the basis that having an abortion is, or can be, justified as merely a way of not rendering special assistance. Again, the argument turns, not on a calculus of consequences, but on the formal character­ istics of one’s choice itself. Well, why should this apparently formal aspect of one’s choice determine one’s precise responsibilities in a certain situation whatever the other circumstances and expected consequences or upshots? When we know why, on both sides of the debate about abortion, we draw and rely on these distinctions, then we will be better placed to con­ sider (i) whether or not unplugging from the violinist is, after all, direct killing in the sense alleged to be relevant by Popes and others, and (ii) whether or not abortion is, after all, just like unplugging the captive philosopher from the moribund musician. ii

Like Thomson’s moral language (setting off the “permissible” against the “impermissible” ), the traditional rule about killing doubt­ less gets its peremptory sharpness primarily (historically speaking) from the injunction, respected as divine and revealed: “Do not kill the innocent and just.”14 But the handful of peremptory negative moral principles correspond to the handful of really basic aspects of human flourishing, which in turn correspond to the handful of really basic and controlling human needs and human inclinations. To be fully rea­ sonable, one must remain open to every basic aspect of human flour­ ishing, to every basic form of human good. For is not each irreducibly basic, and none merely means to end? Are not the basic goods in­ commensurable? Of course it is reasonable to concentrate on realiz­ ing those forms of good, in or for those particular communities and persons (first of all oneself), which one’s situation, talents and op­ portunities most fit one for. But concentration, specialization, particu­ larization is one thing; it is quite another thing, rationally and thus 14. Exodus 2 3:7; cf. Exodus 2 0 :1 3 , Deuteronom y 5 :1 7 , Genesis 9 :6 , Jere­ miah 7 :6 and 22 :3 .

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morally speaking, to make a choice which cannot but be characterized as a choice against life (to kill), against communicable knowledge of truth (to lie, where truth is at stake in communication), against procreation, against friendship and the justice that is bound up with friendship. Hence the strict negative precepts.15 The general sense of “responsibility,” “duty,” “obligation,” “permissi­ bility” is not my concern here, but rather the content of our responsi­ bilities, duties, obligations, of the demands which human good makes on each of us. The general demand is that we remain adequately open to, attentive to, respectful of, and willing to pursue human good inso­ far as it can be realized and respected in our choices and dispositions. Now most moral failings are not by way of violation of strict negative precepts—i.e. are not straightforward choices against basic values. Rather, they are forms of negligence, of insufficient regard for these basic goods, or for the derivative structures reasonably created to sup­ port the basic goods. And when someone is accused of violating di­ rectly a basic good, he will usually plead that he was acting out of a proper care and concern for the realization of that or another basic value in the consequences of his chosen act though not in the act itself. For example, an experimenter accused of killing children in order to conduct medical tests will point out that these deaths are necessary to these tests, and these tests to medical discoveries, and the discoveries to the saving of many more lives—so that, in view of the foreseeable consequences of his deed, he displays (he will argue) a fully adequate (indeed, the only adequate) and reasonable regard for the value of human life. But to appeal to consequences in this fashion is to set aside one criterion of practical reasonableness and hence of morality—namely, that one remain open to each basic value, and attentive to some basic value, in each of one’s chosen acts—in favor of quite another criterion —namely, that one choose so to act as to bring about consequences involving a greater balance of good over bad than could be expected to be brought about by doing any alternative action open to one. Hare 15. These remarks are filled out som ew hat in my “N atural Law and U n­ natural Acts,” Heythrop Journal 11 (1 9 7 0 ): 365. See also Germain Grisez, Abortion: the Myths, the Realities and the Arguments (N ew York 1 9 7 0 ), chap. 6. My argument owes m uch to this and other works by Grisez.

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has observed that “for practical purposes there is no important dif­ ference” between most of the currently advocated theories in ethics; they all are “utilitarian,” a term he uses to embrace Brandt’s ideal ob­ server theory, Richards’s (Rawls’s?) rational contractor theory, spe­ cific rule-utilitarianism, universalistic act-utilitarianism and his own universal prescriptivism.16 All justify and require, he argues, the adop­ tion of “the principles whose general inculcation will have, all in all, the best consequences.”171 offer no critique of this utilitarianism here; Thomson’s paper is not, on its face, consequentialist. Suffice it to in­ quire how Hare and his fellow consequentialists know the future that to most of us is hidden. How do they know what unit of computation to select from among the incommensurable and irreducible basic as­ pects of human flourishing; what principle of distribution of goods to commend to an individual considering his own interests, those of his friends, his fam ily, his enemies, his patria and those of all men present and future? How do they know how to define the “situation” whose universal specification will appear in the principle whose adop­ tion (singly? in conjunction with other principles?) “will” have best consequences;18 whether and how to weigh future and uncertain con­ sequences against present and certain consequences? And how do they know that net good consequences would in fact be maximized (even if per impossibile they were calculable) by general adoption of consequentialist principles of action along with consequentialist “prin­ ciples” to justify nonobservance of consequentialist “principles” in ‘hard cases”?19 One cannot understand the Western moral tradition, with its peremptory negative (forbearance-requiring) principles (the positive principles being relevant in all, but peremptory in few, partic­ ular situations), unless one sees why that tradition rejected consequentialism as mere self-delusion-for Hare and his fellow consequen­ tialists can provide no satisfactory answer to any of the foregoing lines of inquiry, and have no coherent rational account to give of any 16. R. M. Hare, "Rules of War and Moral R easoning,” Philosophy Sr Public

Affairs 1, no. 2 (W inter 1 9 7 2 ): 167, 168. 17. Ibid., p. 174. 18. Cf. H.-N. Castañeda, "On the Problem of Form ulating a Coherent ActU tilitarianism ,” Analysis 32 (1 9 7 2 ): 118; Harold M. Zellner, "Utilitarianism and Derived O bligation,” Analysis 32 (1 9 7 2 ): 124. 19. See D. H. Hodgson, Consequences of Utilitarianism (O xford, 1 9 6 7 ).

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level of moral thought above that of the man who thinks how good it would be to act “for the best.”20 Expected total consequences of one's action do not provide a sufficient ground for making a choice that cannot but be regarded as itself a choice directly against a basic value (even that basic value which it is hoped will be realized in the con­ sequences)—for expected total consequences cannot be given an eval­ uation sufficiently reasonable and definitive to be the decisive measure of our response to the call of human values, while a choice directly against a basic good provides, one might say, its own definitive evalua­ tion of itself. I do not expect these isolated and fragmentary remarks to be in them­ selves persuasive. I do not deny that the traditional Western willing­ ness, (in theory) to discount expected consequences wherever the action itself could not but be characterized as against a basic value, is or was supported by the belief that Providence would inevitably provide that “all manner of things shall be well” (i.e. that the whole course of history would turn out to have been a fine thing, indisputably evil deeds and their consequences turning out to have been “all to the good” like indisputably saintly deeds and their consequences). Indeed, the consequentialist moralist, who nourishes his moral imagination on scenarios in which by killing an innocent or two he saves scores, thousands, millions or even the race itself, rather obviously is a postChristian phenomenon—such an assumption of the role of Providence would have seemed absurd to the pre-Christian philosophers21 known to Cicero and Augustine. I am content to suggest the theoretical and moral context in which the casuistry of “direct” and “indirect” develops, within the wider context of types of action to be considered “imper­ missible” (I leave the term incompletely accounted for) because in­ escapably (i.e. whatever the hoped-for consequences) choices against 20: Cf. Hare, ‘‘Rules of War and Moral R easoning,” p. 174: “The defect in m ost deontological theories . . . is that they have no coherent rational account to give of any level of moral thought above that of the m an who knows some good sim ple moral principles and sticks to them . . . . [The] sim ple principles of the deontologist . . . are w hat w e should be trying to inculcate into ourselves and our children if we w ant to stand the best chance . . . of doing w hat is for the best.” 21. N ot to m ention the Jewish m oralists: see D. Daube, Collaboration with Tyranny in Rabbinic Law (O xford, 1 9 6 5 ).

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a basic value of human living and doing. In short, one’s responsibility for the realization of human good, one’s fostering of or respect for human flourishing in future states of affairs at some greater or lesser remove from one’s present action, does not override one’s responsi­ bility to respect each basic form of human good which comes directly in question in one’s present action itself. But how does one choose “directly against” a basic form of good? When is it the case, for example, that one’s choice, one’s intentional act, “cannot but be” characterized as “inescapably” anti-life? Is abor­ tion always (or ever) such a case? A way to tackle these questions can be illustrated by reference to three hard cases whose traditional “solu­ tions” contributed decisively to the traditional judgment about abor­ tion. The relevance of these “hard cases” and “solutions” to the discussion with Thomson should be apparent in each case, but will become even more apparent in the next section. (i) Suicide. Considered as a fully deliberate choice (which it doubtless only rather rarely is), suicide is a paradigm case of an action that is always wrong because it cannot but be characterized as a choice directly against a fundamental value, life. The characterization is significant, for what makes the killing of oneself attractive is usually, no doubt, the prospect of peace, relief, even a kind of freedom or per­ sonal integration, and sometimes is an admirable concern for others; but no amount of concentration on the allure of these positive values can disguise from a clear-headed practical reasoner that it is by and in killing himself that he intends or hopes to realize those goods. And the characterization is given sharpness and definition by the contrast with heroic self-sacrifices in battle or with willing martyrdom.22 Where Durkheim treated martyrdom as a case of suicide,23 anybody con­ cerned with the intentional structure of actions (rather than with a simplistic analysis of movements with foreseen upshots) will grant that the martyr is not directly choosing death, either as end or as 22. N ote that I am not asserting (or d en y in g ) that self-sacrificial heroism and martyrdom are moral duties; I am exp lain in g w hy they need not be regarded as moral faults. 23. Le Suicide (Paris, 1 8 9 7 ), P- 5 * Cf. also Daube’s remarks on D onne in “The L inguistics of Suicide,” Philosophy & Public Affairs 1, no. 4 (Sum m er 1972): pp. 4 i8 ff.

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means. For, however certainly death may be expected to ensue from the martyr’s choice not to accede to the tyrant’s threats, still it will ensue through, and as the point of, someone else’s deliberate act (the tyrant’s or the executioner’s), and thus the martyr’s chosen act of defiance need not be interpreted as itself a choice against the good of life. The case of suicide has a further significance. The judgments, the characterizations and the distinctions made in respect of someone’s choices involving his own death will be used in respect of choices in­ volving the death of others. In other words, rights (such as the "right to life” ) are not the fundamental rationale for the judgment that the killing of other (innocent) persons is impermissible. What is imper­ missible is an intention set against the value of human life where that value is directly at stake in any action by virtue of the intentional and causal structure of that action; and such an impermissible intention may concern my life or yours—and no one speaks of his "right to life” as against himself, as something that would explain why his act of self-killing would be wrongful. Indeed, I think the real justification for speaking of "rights” is to make the point that, when it comes to characterizing intentional ac­ tions in terms of their openness to basic human values, those human values are, and are to be, realized in the lives and well-being of others as well as in the life and well-being of the actor. That is, the point of speaking of "rights” is to stake out the relevant claims to equality and nondiscrimination (claims that are not to absolute equality, since my life and my well-being have some reasonable priority in the direction of my practical effort, if only because I am better placed to secure them). But the claims are to equality of treatment; so, rather than speak emptily of (say) a "right to life,” it would be better to speak of (say, inter alia) a "right not to be killed intentionally”-w here the meaning and significance of "intentional killing” can be illuminated by consideration of the right and wrong of killing oneself (i.e. of a situation where no "rights” are in question and one is alone with the bare problem of the right relation between one’s acts and the basic values that can be realized or spurned in human actions). Finally, the case of suicide and its traditional solution remind us forcefully that traditional Western ethics simply does not accept that

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a person has “a right to decide what shall happen in and to his body,” a right which Thomson thinks, astonishingly (since she is talking of Pius XI and Pius XII), that “everybody seems to be ready to grant” (p. 50). Indeed, one might go so far as to say that traditional Western ethics holds that, because and to the extent that one does not have the “right” to decide what shall happen in and to one's body, one therefore and to that extent does not have the right to decide what shall, by way of one’s own acts, happen in and to anyone else’s body. As I have already hinted, and shall elaborate later, this would be some­ thing of an oversimplification, since one’s responsibility for one’s own life, health etc. is reasonably regarded as prior to one’s concern for the life, health etc. of others. But the oversimplification is worth risk­ ing in order to make the point that the traditional condemnation of abortion (as something one makes happen in and to a baby’s body) starts by rejecting what Thomson thinks everyone will admit. (ii) D’s killing an innocent V in order to escape death at the hands of P, who has ordered D to kill V. This case has been traditionally treated on the same footing as cases such as D’s killing V in order to save Q (or Qi, Q2 . . . Qn) from death (perhaps at the hands of P ) or from disease (where D is a medical researcher); for all such cases cannot but be characterized as choices to act directly against human life. Of course, in each case, the reason for making the choice is to save life; but such saving of life will be effected, if at all, through the choices of other actors (e.g. P’s choice not to kill D where D has killed V; or P’s choice not to kill Q) or through quite distinct sequences of events (e.g. Q’s being given life-saving drugs discovered by D ). Hence the traditional ethics affirms that “there are drastic limits to the right of self-defense” in much the same terms as Thomson. “If someone threatens you with death when you torture someone else to death . . . you have not the right, even to save your own life, to do so” (p. 53). And it was this very problem that occasioned the first ecclesi­ astical pronouncement on abortion in the modern era, denying that “it is licit to procure abortion before animation of the foetus in order to prevent a girl, caught pregnant, being killed or dishonored.”24 The 24. Decree of the Holy Office, 2 March 1679, error no. 34; see D enzinger and Schonm etzer, Enchiridion symbolorum definitionum ct declarationum de rebus

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choice to abort here cannot but be characterized as a choice against life, since its intended good life- or reputation-saving effects are merely expected consequences, occurring if at all through the further acts of other persons, and thus are not what is being done in and by the act of abortion itself. But I do not know how one could arrive at any view of this second sort of hard case by juggling, as Thomson seems to be willing to, with a “right to life,” a “right to determine what happens in and to your own body,” a “right of self-defense” and a “right to refuse to lay hands on other people”—all rights shared equally by D, V, P, and Q, Qi, Q2 . . . ! (iii) Killing the mother to save the child. This was the only aspect of abortion that Thomas Aquinas touched on, but he discussed it thrice.*25 For if it is accepted that eternal death is worse than mere bodily death, shouldn't one choose the lesser evil? So if the unborn child is likely to die unbaptized, shouldn't one open up the mother, rip out the child and save-it-from-eternal-death-by-baptizing-it? (If you find Aquinas's problem unreal, amend it—consider instead the cases where the child's life seems so much more valuable, whether to itself or to others, than the life of its sick or old or low-born mother.) No, says Aquinas. He evidently considers (for reasons I consider in section III) that the project involves a direct choice against life and is straight­ forwardly wrong, notwithstanding the good consequences. So the traditional condemnation of therapeutic abortion flows not from a prejudice against women or in favor of children but from a straightforward application of the solution in the one case to the other case, on the basis that mother and child are equally persons in whom the value of human life is to be realized (or the “right to life” re­ spected) and not directly attacked.26 fidei et morum (Barcelona, 1 9 6 7 ), par. 2134; Grisez, Abortion: the Myths, the Realities and the Arguments , p. 174; John T. Noonan, Jr., “An Almost Absolute Value in History,” in The Morality of Abortion, ed. John T. N oonan, Jr. (C am ­ bridge, Mass., 1 9 7 0 ), p. 34. 25. See Summa Theologiae III, q.68, art. 11; in 4 Sententiarum d.6, q .i. a .i, q .i, ad 4; d.23, q.2, a.2, q .i, ad 1 & 2; Grisez, op. cit., p. 154; N oonan, op. cit., p. 24. 26. Pius XII’s remark, quoted by Thom son, that “the baby in the m aternal breast has the right to life im m ediately from God” has its principal point, not

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m But now at last let us look at this "traditional condemnation of abor­ tion” a little more closely than Thomson does. It is not a condemnation of the administration of medications to a pregnant mother whose life is threatened by, say, a high fever (whether brought on by pregnancy or not), in an effort to reduce the fever, even if it is known that such medications have the side effect of inducing miscarriage. It is not a condemnation of the removal of the malignantly cancerous womb of a pregnant women, even if it is known that the foetus within is not of viable age and so will die. It is quite doubtful whether it is a condem­ nation of an operation to put back in its place the displaced womb of a pregnant woman whose life is threatened by the displacement, even though the operation necessitates the draining off of the amniotic fluids necessary to the survival of the foetus.27 But why are these operations not condemned? As Foot has remarked, the distinction drawn between these and other death-dealing opera­ tions "has evoked particularly bitter reactions on the part of nonCatholics. If you are permitted to bring about the death of the child, what does it matter how it is done?”28 Still, she goes some way to an­ swering her own question; she is not content to let the matter rest where Hart had left it, when he said: Perhaps the most perplexing feature of these cases is that the overriding aim in all of them is the same good result, namely . . . to save the mother's life. The differences between the cases are differences of causal structure leading to the applicability of dif­ ferent verbal distinctions. There seems to be no relevant moral dif­ ference between them on any theory of morality . . . [to attribute ( pace Thom son, p. 5 1 ) in the assertion of a prem ise from w hich one could de­ duce the w rongfulness of direct killing, but in the assertion that if anybody—e g. the mother—has the right not to be directly killed, then the baby has the sam e right, since as Pius XII goes on im m ediately “the baby, still not born, is a m an in the sam e degree and for the sam e reason as the m other.” 27. The three cases m entioned in this paragraph are discussed in a standard and conservative Roman Catholic textbook: M arcellino Zalba, Theologiae Moralis Compendium (M adrid, 1 9 5 8 ), I, p. 885. 28. Philippa Foot, “The Problem of Abortion and the Doctrine o f Double Effect,” The Oxford Review 5 (1 9 6 7 ): 6.

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moral relevance to distinctions drawn in this way] in cases where the ultimate purpose is the same can only be explained as the result of a legalistic conception of morality as if it were conceived in the form of a law in rigid form prohibiting all intentional killing as distinct from knowingly causing death.29 Foot recognizes that attention to “overriding aim” and “ultimate purpose” is not enough if we are to keep clear of moral horrors such as saving life by killing innocent hostages, etc. As a general though not exclusive and not (it seems) at-all-costs principle, she proposes that one has a duty to refrain from doing injury to innocent people and that this duty is stricter than one's duty to aid others; this enables her to see that “we might find” the traditional conclusion correct, that we must not crush the unborn child's skull in order to save the mother (in a case where the child could be saved if one let the mother d ie ): “for in general we do not think that we can kill one innocent person to rescue another.”30 But what is it to “do injury to” innocent people? She does not think it an injury to blow a man to pieces, or kill and eat him, in order to save others trapped with him in a cave, if he is certain to die soon anyway*1 So I suppose that, after all, she would be willing (however reluctantly) to justify the killing by D of hostages, V, Vi, V2) whenever the blackmailer P threatened to kill them too, along with Q, Qi, Q2, unless D killed them himself. One wonders whether this is not an unwarranted though plausible concession to consequentialism. In any event, Foot was aware, not only that the “doctrine of the double effect” “should be taken seriously in spite of the fact that it sounds rather odd . . . ,”32 but also of what Thomson has not recorded in her brief footnote (p. 50 n. 3) on the technical meaning given to the term “direct” by moralists using the “doctrine” to analyze the re­ lation between choices and basic values, namely that the “doctrine” requires more than that a certain bad effect or aspect (say, someone's being killed) of one's deed be not intended either as end or as means. If one is to establish that one's death-dealing deed need not be char29. H.L.A. Hart, “Intention and P u n ish m en t/’ The Oxford Review 4 (1 9 6 7 ): 13; reprinted in Hart, Punishment and Responsibility (O xford, 1 9 6 8 ), pp. 124125 30. Foot, “The Problem of Abortion and the Doctrine of Double Effect," p. 15 31. Ibid., p. 14. 32. Ibid., p. 8.

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acterized as directly or intentionally against the good of human life, the "doctrine" requires further that the good effect or aspect, which is intended, should be proportionate (say, saving someone's life), i.e. sufficiently good and important relative to the bad effect or aspect: otherwise (we may add, in our own words) one's choice, although not directly and intentionally to kill, will reasonably be counted as a choice inadequately open to the value of life. 33 And this consideration alone might well suffice to rule out abortions performed in order simply to remove the unwanted foetus from the body of women who conceived as a result of forcible rape, even if one were to explicate the phrase "intended directly as end or as means" in such a way that the abortion did not amount to a directly intended killing (e.g. because the mother desired only the removal, not the death of the foetus, and would have been willing to have the foetus reared in an artificial womb had one been available). 3 ' Well, how should one explicate these central requirements of the "doctrine" of double effect? When should one say that the expected bad effect or aspect of an action is not intended either as end or as means and hence does not determine the moral character of the act as a choice not to respect one of the basic human values? Since it is in any case impossible to undertake a full discussion of this question here, let me narrow the issue down to the more difficult and controverted problem of "means." Clearly enough, D intends the death of V as a means when he kills him in order to conform to the orders of the blackmailer P (with the object of thereby saving the lives of Q et al.), since the good effect of D's act will follow only by virtue of another human act (here P's). But Grisez (no consequentialist!) argues that the bad effects or aspects of some natural process or chain 33· Ibid., p. 7· This is the fourth of the four usual conditions for the application of the "Doctrine of Double Effect"; see e.g. Grisez, Abortion: the Myths, the Realities and the Arguments, p. 329. G.E.M. Anscombe, "War and Murder," in Nuclear Weapons and Christian Conscience, ed. W. Stein, (London, 1961 ), p. 57, formulates the "principle of double effect," in relation to the situation where "someone innocent will die unless I do a wicked thing," thus: "you are no murderer if a man's death was neither your aim nor your chosen means, and if you had to act in the way that led to it or else do something absolutely forbidden" (emphasis added). 34· Grisez argues thus, op. cit., p. 343; also in "Toward a Consistent NaturalLaw Ethics of Killing," American Journal of Jurisprudence IS (1970): 95·

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of causation need not be regarded as intended as means to the good effects or aspects of that process even if the good effects or aspects depend on them in the causal sense (and provided that those good effects could not have been attained in some other way by that agent in those circum stances).35 So he would, I think, say that Thomson could rightly unplug herself from the violinist (at least where the hook-up endangered her life) even if “unplugging” could only be ef­ fected by chopping the violinist in pieces. He treats the life-saving abortion operation in the same way, holding that there is no direct choice against life involved in chopping up the foetus if what is in­ tended as end is to save the life of the mother and what is intended as means is no more than the removal of the foetus and the consequen­ tial relief to the mother’s body.36 As a suasive, he points again to the fact that if an artificial womb or restorative operation were available for the aborted foetus, a right-thinking mother and doctor in such a case would wish to make these available to the foetus; this shows, he says, that a right-thinking mother and doctor, even where such facili­ ties are not in fact available, need not be regarded as intending the death of the foetus they kill.37 For my part, I think Grisez’s reliance on such counter-factual hypotheses to specify the morally relevant mean­ ing or intention of human acts is excessive, for it removes morally relevant “intention” too far from common-sense intention, tends to unravel the traditional and common-sense moral judgments on suicide (someone would say: “It’s not death I’m choosing, only a long space of peace and quiet, after which I’d willingly be revived, if that were possible” !), and likewise disturbs our judgments on murder and in par­ ticular on the difference between administering (death-hastening) drugs to relieve pain and administering drugs to relieve-pain-by-killing. In any event, the version of traditional nonconsequentialist ethics which has gained explicit ecclesiastical approval in the Roman church Ibid., p. 3 3 3 and pp. 89-90 respectively. Ibid., p. 3 4 1 and p. 94 respectively. 3 7 . Ibid., p. 3 4 1 and p. 9 5 respectively. I agree w ith Grisez th at the fact that, if an artificial womb were available, m any women would not tran sfer their aborted offspring to it shows th a t those women are directly and w rong­ fully intending the death of their offspring. I suspect Judith Thomson would agree; cf. p. 6 6 . 35.

36.

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these last ninety years treats the matter differently; it treats a bad or unwanted aspect or effect of act Ax as an intended aspect of Ai, not only when the good effect (unlike the bad) follows only by virtue of another human act A2, but also sometimes when both the good effect and the bad effect are parts of one natural causal process requiring no further human act to achieve its effect. Sometimes, but not always; so when? A variety of factors are appealed to explicitly or relied on implicitly in making a judgment that the bad effect is to count as intended-as-ameans; Bennett would call the set of factors a “jumble” ;38 but they are even more various than he has noted. It will be convenient to set them out while at the same time observing their bearing on the two cases centrally in dispute, the craniotomy to save a mother's life and that notable scenario in which “you reach around to your back and unplug yourself from that violinist to save your life.” (1) Would the chosen action have been chosen if the victim had not been present? If it would, this is ground for saying that the bad aspects of the action, viz. its death-dealing effects on the victim (child or violinist), are not being intended or chosen either as end or means, but are genuinely incidental side effects that do not neces­ sarily determine the character of one's action as (not) respectful of human life. This was the principal reason the ecclesiastical moralists had for regarding as permissible the operation to remove the can­ cerous womb of the pregnant woman.39 And the “bitter” reaction which Foot cites and endorses-“If you are permitted to bring about the death of the child, what does it matter how it is done?''-seem s, here, to miss the point. For what is in question, here, is not a mere matter of tech­ nique, of different ways of doing something. Rather it is a matter of the very reason one has for acting in the way one does, and such reasons can be constitutive of the act as an intentional performance. 38.

Jon ath an Bennett, “ ‘W hatever the Consequences,’ ” Analysis 2 6 ( 1 9 6 6 ): n. 1 . 3 9 . See the debate between A. Gemelli and P. Vermeersch, sum m arized in Ephemerides Theologicae Lovaniensis 1 1 ( 1 9 3 4 ): 5 2 5 -5 6 1 ; see also N oonan, The Morality of Abortion, p. 4 9 ; Zalba, Theologiae Moralis Compendium I, p. 8 8 5 .

p.

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One has no reason even to want to be rid of the foetus within the womb, let alone to want to kill it; and so one’s act, though certain, causally, to kill, is not, intentionally, a choice against life. But of course, this factor does not serve to distinguish a craniotomy from unplugging that violinist; in both situations, the oppressive pres­ ence of the victim is what makes one minded to do the act in question. (2) Is the person making the choice the one whose life is threat­ ened by the presence of the victim? Thomson rightly sees that this is a relevant question, and Thomas Aquinas makes it the pivot of his discussion of self-defensive killing (the discussion from which the “doctrine” of double effect, as a theoretically elaborated way of analyz­ ing intention, can be said to have arisen). He says: Although it is not permissible to intend to kill someone else in order to defend oneself ( since it is not right to do the act “killing a human being,” except [in some cases of unjust aggression] by public author­ ity and for the general welfare), still it is not morally necessary to omit to do what is strictly appropriate to securing one’s own life simply in order to avoid killing another, for to make provision for one’s own life is more strictly one’s moral concern than to make provision for the life of another persons.40 As Thomson has suggested, a bystander, confronted with a situation in which one innocent person’s presence is endangering the life of an­ other innocent person, is in a different position; to choose to inter­ vene, in order to kill one person to save the other, involves a choice to make himself a master of life and death, a judge of who lives and who dies; and (we may say) this context of his choice prevents him from saying, reasonably, what the man defending himself can say: “I am not choosing to kill; I am just doing what—as a single act and not simply by virtue of remote consequences or of someone’s else’s subsequent act—is strictly needful to protect my own life, by force40. Sum m a Theologiae II-II, q. 6 4 , art. 7 : “Nec est necessarium ad salutem ut homo actum m oderatae tutelae p raeterm ittat ad evitandum occisionem alterius: quia plus tenetur homo vitae suae providere quam vitae alienae. Sed quia occidere hominem non licet nisi publica auctoritate propter bonum com mune, ut ex supra dictis patet [art. 3 ], illicitum est quod homo intendat occidere hominem ut seipsum defendat.”

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fully removing what is threatening it.” Now the traditional condem­ nation of abortion41 concerns the bystander’s situation: a bystander cannot but be choosing to kill if (a ) he rips open the mother, in a way foreseeably fatal to her, in order to save the child from the threaten­ ing enveloping presence of the mother (say, because the placenta has come adrift and the viable child is trapped and doomed unless it can be rescued, or because the mother’s blood is poisoning the child, in a situation in which the bystander would prefer to save the child, either because he wants to save it from eternal damnation, or because the child is of royal blood and the mother low born, or because the mother is in any case sick, or old, or useless, or "has had her turn,” while the child has a whole rich life before it); or if (b ) he cuts up or drowns the child in order to save the mother from the child’s threat­ ening presence. "Things being as they are, there isn’t much a woman can safely do to abort herself,” as Thomson says (p. 5 2 )—at least, not without the help of bystanders, who by helping (directly) would be making the same choice as if they did it themselves. But the unplug­ ging of the violinist is done by the very person defending herself. Thomson admits (p. 52) that this gives quite a different flavor to the situation, but she thinks that the difference is not decisive, since by­ standers have a decisive reason to intervene in favor of the mother threatened by her child’s presence. And she finds this reason in the fact that the mother owns her body, just as the person plugged in to the violinist owns his own kidneys and is entitled to their unencum­ bered use (p. 53). Well, this too has always been accounted a factor in these problems, as we can see by turning to the following question. (3 ) Does the chosen action involve not merely a denial of aid and succor to someone but an actual intervention that amounts to an as­ sault on the body of that person? Bennett wanted to deny all relevance to any such question,42 but Foot43 and Thomson have rightly seen that in the ticklish matter of respecting human life in the persons of others, and of characterizing choices with a view to assessing their respect for life, it can matter that one is directly injuring and not merely failing Ibid., arts. 2 and 3 . Bennett, “ ‘W hatever the Consequences.’ ” 4 3 . Foot, “The Problem of Abortion and the D octrine of Double Effect,” pp. 4 1.

42.

11-13-

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to maintain a life-preserving level of assistance to another. Sometimes, as here, it is the causal structure of one’s activity that involves one willy-nilly in a choice for or against a basic value. The connection be­ tween one’s activity and the destruction of life may be so close and di­ rect that intentions and considerations which would give a different dominant character to mere nonpreservation of life are incapable of affecting the dominant character of a straightforward taking of life. This surely is the reason why Thomson goes about and about to repre­ sent a choice to have an abortion as a choice not to provide assistance or facilities, not to be a Good or at any rate a Splendid Samaritan; and why, too, she carefully describes the violinist affair so as to minimize the degree of intervention against the violinist’s body, and to maximize the analogy with simply refusing an invitation to volunteer one’s kid­ neys for his welfare (like Henry Fonda’s declining to cross America to save Judith Thomson’s life). “If anything in the world is true, it is that you do not commit murder, you do not do what is impermissible, if you reach around to your back and unplug yourself from that violinist to save your life” (p. 52). Quite so. It might nevertheless be useful to test one’s moral reactions a little further: suppose, not simply that “un­ plugging” required a bystanders intervention, but also that (for medi­ cal reasons, poison in the bloodstream, shock, etc.) unplugging could not safely be performed unless and until the violinist had first been dead for six hours and had moreover been killed outright, say by drowning or decapitation (though not necessarily while conscious). Could one then be so confident, as a bystander, that it was right to kill the violinist in order to save the philosopher? But I put forward this revised version principally to illustrate another reason for thinking that, within the traditional casuistry, the violinist-unplugging in Thom­ son’s version is not the “direct killing” which she claims it is, and which she must claim it is if she is to make out her case for rejecting the traditional principle about direct killing. Let us now look back to the traditional rule about abortion. If the mother needs medical treatment to save her life, she gets it, subject to one proviso, even if the treatment is certain to kill the un­ born child—for after all, her body is her body, as “women have said again and again” (and they have been heard by the traditional cas­ uists!). And the proviso? That the medical treatment not be via a

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straightforward assault on or intervention against the child's body. For after all the child's body is the child's body, not the womans. The traditional casuists have admitted the claims made on behalf of one “body” up to the very limit where those claims become mere (under­ standable) bias, mere (understandable) self-interested refusal to listen to the very same claim ( “This body is my body” ) when it is made by or on behalf of another person.44 Of course, a traditional cas­ uist would display an utter want of feeling if he didn't most profound­ ly sympathize with women in the desperate circumstances under dis­ cussion. But it is vexing to find a philosophical Judith Thomson, in a cool hour, unable to see when an argument cuts both ways, and un­ aware that the casuists have seen the point before her and have, unlike her, allowed the argument to cut both ways impartially. The child, like his mother, has a “just prior claim to his own body,” and abortion involves laying hands on, manipulating, that body. And here we have perhaps the decisive reason why abortion cannot be assimilated to the range of Samaritan problems and why Thomson's location of it within that range is a mere (ingenious) novelty. (4 ) But is the action action against someone who had a duty not to be doing what he is doing, or not to be present where he is present? There seems no doubt that the “innocence” of the victim whose life is taken makes a difference to the characterizing of an action as open to and respectful of the good of human life, and as an intentional kill­ ing. Just how and why it makes a difference is difficult to unravel; I shall not attempt an unraveling here. We all, for whatever reason, recognize the difference and Thomson has expressly allowed its rele­ vance (p. 52). But her way of speaking of “rights” has a final unfortunate effect at this point. We can grant, and have granted, that the unborn child has no Hohfeldian claim-right to be allowed to stay within the mother's body under all circumstances; the mother is not under a strict duty to allow it to stay under all circumstances. In that sense, the child “has no right to be there.” But Thomson discusses also the case of the burglar 44. Not, of course, th at they have used T hom son s curious talk of “ow ning” o n es own body w ith its distracting and legalistic connotations and its dualistic reduction of subjects of justice to objects.

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in the house; and he, too, has “no right to be there,” even when she opens the window! But beware of the equivocation! The burglar not merely has no claim-right to be allowed to enter or stay; he also has a strict duty not to enter or stay, i.e. he has no Hohfeldian liberty— and it is this that is uppermost in our minds when we think that he “has no right to be there” : it is actually unjust for him to be there. Similarly with Jones who takes Smith's coat, leaving Smith freezing (p. 53). And similarly with the violinist. He and his agents had a strict duty not to make the hook-up to Judith Thomson or her gentle reader. Of course, the violinist himself may have been unconscious and so not himself at fault; but the whole affair is a gross injustice to the person whose kidneys are made free with, and the injustice to that person is not measured simply by the degree of moral fault of one of the parties to the injustice. Our whole view of the violinist's situation is colored by this burglarious and persisting wrongfulness of his pres­ ence plugged into his victim. But can any of this reasonably be said or thought of the unborn child? True, the child had no claim-right to be allowed to come into being within the mother. But it was not in breach of any duty in coming into being nor in remaining present within the mother; Thomson gives no arguments at all in favor of the view that the child is in breach of duty in being present (though her counter examples show that she is often tacitly assuming this). (Indeed, if we are going to use the wretched analogy of owning houses, I fail to see why the unborn child should not with justice say of the body around it: “That is my house. No one granted me property rights in it, but equally no one granted my mother any property rights in it.” The fact is that both persons share in the use of this body, both by the same sort of title, viz., that this is the way they happened to come into being. But it would be better to drop this ill-fitting talk of “ownership” and “property rights” alto­ gether.) So though the unborn child “had no right to be there” (in the sense that it never had a claim-right to be allowed to begin to be there), in another straightforward and more important sense it did “have a right to be there” (in the sense that it was not in breach of duty in being or continuing to be there). All this is, I think, clear and clearly different from the violinist's case. Perhaps forcible rape is a special case; but even then it seems fanciful to say that the child is

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or could be in any way at fault, as the violinist is at fault or would be but for the adventitious circumstance that he was unconscious at the time. Still, I don’t want to be dogmatic about the justice or injustice, innocence or fault, involved in a rape conception. (I have already re­ marked that the impermissibility of abortion in any such case, where the mother’s life is not in danger, does not depend necessarily on show­ ing that the act is a choice directly to kill.) It is enough that I have shown how in three admittedly important respects the violinist case differs from the therapeutic abortion performed to save the life of the mother. As presented by Thomson, the violinist’s case involves (i) no bystander, (ii) no intervention against or assault upon the body of the violinist, and (iii) an indisputable injustice to the agent in ques­ tion. Each of these three factors is absent from the abortion cases in dispute. Each has been treated as relevant by the traditional casuists whose condemnations Thomson was seeking to contest when she plugged us into the violinist. When all is said and done, however, I haven’t rigorously answered my own question. When should one say that the expected bad effect or aspect of an act is not intended even as a means and hence does not determine the moral character of the act as a choice not to respect one of the basic human values? I have done no more than list some factors. I have not discussed how one decides which combinations of these factors suffice to answer the question one way rather than the other. I have not discussed the man on the plank, or the man off the plank; or the woman who leaves her baby behind as she flees from the lion, or the other woman who feeds her baby to the lion in order to make good her own escape; or the ‘"innocent” child who threatens to shoot a man dead, or the man who shoots that child to save him­ self;45 or the starving explorer who kills himself to provide food for his fellows, or the other explorer who wanders away from the party so as not to hold them up or diminish their rations. The cases are many, various, instructive. Too generalized or rule-governed an ap­ plication of the notion of “double effect” would offend against the Aristotelean, common law, Wittgensteinian wisdom that here “we do 45. This case is (too casually) used in Brody, “Thom son on Abortion,” Philosophy & Public Affairs 1 , no. 3 (Spring 1 9 7 2 ): 3 3 5 .

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not know how to draw the boundaries of the concept”—of intention, of respect for the good of life, and of action as distinct from conse­ quences—"except for a special purpose.”46 But I think that those whom Aristotle bluntly calls wise can come to clear judgments on most of the abortion problems, judgments that will not coincide with Thomson’s. IV

I have been assuming that the unborn child is, from conception, a person and hence is not to be discriminated against on account of age, appearance or other such factors insofar as such factors are reasonably considered irrelevant where respect for basic human values is in question. Thomson argues against this assumption, but not, as I think, well. She thinks (like Wertheimer,47 mutatis mutandis) that the argument in favor of treating a newly conceived child as a person is merely a "slippery slope” argument (p. 4 7 ), rather like (I suppose) saying that one should call all men bearded because there is no line one can confidently draw between beard and clean shaven­ ness. More precisely, she thinks that a newly conceived child is like an acorn, which after all is not an oak! It is discouraging to see her rely­ ing so heavily and uncritically on this hoary muddle. An acorn can remain for years in a stable state, simply but completely an acorn. Plant it and from it will sprout an oak sapling, a new, dynamic bio­ logical system that has nothing much in common with an acorn save that it came from an acorn and is capable of generating new acorns. Suppose an acorn is formed in September 1971, picked up on 1 Feb­ ruary 1972, and stored under good conditions for three years, then planted in January 1975; it sprouts on 1 March 1975 and fifty years later is a fully mature oak tree. Now suppose I ask: When did that oak begin to grow? Will anyone say September 1971 or February 1972? Will anyone look for the date on which it was first noticed in the garden? Surely not. If we know it sprouted from the acorn on 1 March 1975, that is enough (though a biologist could be a trifle more exact about "sprouting” ); that is when the oak began. A fortiori with the conception of a child, which is no mere germination of a seed. 46. 47.

Cf. W ittgenstein, Philosophical Investigations (Oxford, “U nderstanding the Abortion A rgum ent.”

1 9 5 3 ),

sec.

69.

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Two sex cells, each with only twenty-three chromosomes, unite and more or less immediately fuse to become a new cell with forty-six chromosomes providing a unique genetic constitution (not the father's, not the mother's, and not a mere juxtaposition of the parents') which thenceforth throughout its life, however long, will substantially de­ termine the new individual's makeup.48 This new cell is the first stage in a dynamic integrated system that has nothing much in common with the individual male and female sex cells, save that it sprang from a pair of them and will in time produce new sets of them. To say that this is when a person's life began is not to work backwards from maturity, sophistically asking at each point “How can one draw the line here?” Rather it is to point to a perfectly clear-cut beginning to which each one of us can look back and in looking back see how, in a vividly intelligible sense, “in my beginning is my end.'' Judith Thom­ son thinks she began to “acquire human characteristics" “by the tenth week" (when fingers, toes, etc. became visible). I cannot think why she overlooks the most radically and distinctively human char­ acteristic of all—the fact that she was conceived of human parents. And then there is Henry Fonda. From the time of his conception, though not before, one could say, looking at his unique personal genetic constitution, not only that “by the tenth week" Henry Fonda would have fingers, but also that in his fortieth year he would have a cool hand. That is why there seems no rhyme or reason in waiting “ten weeks" until his fingers and so on actually become visible before declaring that he now has the human rights which Judith Thomson rightly but incompletely recognizes. 4 8 . See Grisez, Abortion: The M yth, the Realities and the A rg u m en ts, chap. and pp. 2 7 3 -2 8 7 , w ith literature there cited.

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[4] A Defense of “A Defense of Abortion”: On the Responsibility Objection to Thomson’s Argument* David Boonin In her 1971 article, “A Defense of Abortion,” Judith Jarvis Thomson defended the following thesis: the impermissibility of abortion does not follow from the premises that every fetus is a person and that every person has a right to life. Her principal argument in support of this thesis turned on the claim that cases of a woman carrying a pregnancy to term should be subsumed under the broader category of Good Samaritanism. From the moral point of view, that is, a woman who carries a pregnancy to term is like a person who generously offers, at some considerable cost to herself, to provide what another needs but does not have the right to, while a woman who terminates a pregnancy is like a person who declines to offer such assistance. It is not the case that abortion violates the requirements of morality, therefore, but rather that continuing to incur the burdens involved in pregnancy goes beyond them. And her principal argument in sup­ port of this claim in turn rested on your sharing her response to a now (in)famous example: You wake up in the morning and find yourself back to back in bed with an unconscious violinist. A famous unconscious violinist. He has been found to have a fatal kidney ailment, and the Society of Music Lovers has canvassed all the available medical records and found that you alone have the right blood type to help. They have therefore kidnapped you, and last night the violinist’s

* I would like to thank the Senate Committee on Research at Tulane University for a grant which provided financial support for work on this paper during the summer of 1995. I would also like to thank Leonard Boonin, Luc Bovens, Alisa Carse, Jon Mandle, Ruth Sample, Bonnie Steinbock, Jim Stone, Alec Walen, Sara Worley, and an audience at Tulane University for helpful comments on various earlier versions of the paper, the anonymous referees and associate editors of Ethics for their useful criticisms of a later version, and Marcia Baron for her careful and encouraging editorial guidance throughout as the paper gradually moved from initial submission to its final form.

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circulatory system was plugged into yours, so that your kidneys can be used to extract poisons from his blood as well as your own. The director of the hospital now tells you, “Look, we’re sorry the Society of Music Lovers did this to you— we would never have permitted it if we had known. But still, they did it, and the violinist is now plugged into you. To unplug you would be to kill him. But never mind, it’s only for nine months. By then he will have recovered from his ailment, and can safely be unplugged from you.”1 Thomson takes it that you will not think it impermissible for you to refuse to remain plugged into the violinist and that this will motivate you to conclude that the violinist’s right to life does not include the right to your continued support of his life. But if this is so, then the fetus’s right to life does not include the right to the continued support of the woman who is carrying it. If your unplugging yourself from the violinist is not a violation of his right to life, then a woman’s aborting a fetus is not a violation of its right to life. Or that, at any rate, is the argument. Since Thomson’s argument turns crucially on the analogy be­ tween a woman’s being pregnant and your being plugged into the famous violinist, her critics are left with essentially three lines of re­ sponse: they can attempt to identify a morally relevant disanalogy between the two cases, they can embrace the conclusion that it would be impermissible for you to unplug yourself from the violinist, or they can reject the authority of such arguments from analogy. I will assume for the purposes of this paper that you accept the legitimacy of arguing from cases of the sort which Thomson exploits and that you agree that it would be morally permissible for you to unplug yourself from the violinist. The question, then, is whether there is a morally relevant disanalogy between the two cases. Numerous objections of this sort have been proposed in the literature, but I want here to focus on one such objection in particular, and surely the most common: the claim that even if Thomson’s analogy is successful in every other respect, her argument can establish only that abortion is permissible in cases involving rape.2 Your being plugged into the violinist against your

1. Judith Jarvis Thomson, “A Defense of Abortion,” Philosophy and Public Affairs 1 (1971): 47-66, reprinted in Arguing about Abortion, ed. Lewis M. Schwartz (Belmont, Mass.: Wadsworth, 1993), pp. 113-27, p. 114. All references to Thomson are to the pagination in the Schwartz edition. 2. The objection is ubiquitous in the literature. In addition to the proponents of the objection cited below, see also, e.g., Robert N. Wennberg, Life in the Balance: Exploring the Abortion Controversy (Grand Rapids, Mich.: Eerdmans, 1985), pp. 160-62; John T. Wilcox, "Nature as Demonic in Thomson’s Defense of Abortion,” in The Ethics of Abor­ tion: Pro-Life vs. Pro-Choice, rev. ed., ed. Robert M. Baird and Stuart E. Rosenbaum (Buffalo, N.Y.: Prometheus, 1993), pp. 212-25, pp. 216 ff.; Mary Anne Warren, "On

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will is like a woman’s being impregnated against her will, it is conceded, but it is not like a woman’s becoming pregnant as a result of consensual intercourse. As with the case of you and the violinist, the rape victim cannot be held responsible for the well-being of the fetus because she did not choose to be raped, but the woman who is not raped can and should be held responsible for the well-being of the fetus because she engaged in intercourse voluntarily. Call this the Responsibility Objection. The Responsibility Objection can be developed in two importantly distinct ways, although the distinction is often overlooked in cursory rebuttals to Thomson which take the force of the objection to be virtually self-evident. On one version, the claim is that because the woman’s pregnancy is the result of a voluntary action, she should be understood as having tacitly waived her right to expel the fetus or (what amounts to the same thing) as having tacitly granted the fetus a right to stay. This version, which I will call the Tacit Consent Version, agrees with Thomson that the fetus cannot have a right to the use of the woman’s body unless the woman consents to give it such a right, but claims that (in nonrape cases) there is good reason to conclude that the woman has in fact so consented. The alternative version of the Responsibility Objection denies that consent, even tacit consent, is necessary in order for the voluntariness of the woman’s intercourse to deprive the woman of her right to refuse to aid the fetus. On this version, which I will call the Negligence Version, the woman is like a person who is partly responsible for an accident which leaves an inno­ cent bystander in need of her assistance (the bystander will die, e.g., unless he receives a series of physically demanding blood transfusions from her over the next nine months).3 One need not argue that by running the risk of causing such an accident the woman has tacitly consented to give such bystanders the use of her body in order to believe that she has nonetheless acquired a duty to save them which she would not have acquired if, say, someone else had been (partly) responsible for the accident. On either version, Thomson’s argument

the Moral and Legal Status of Abortion,” in Schwartz, ed., pp. 227-42, p. 232; Paul D. Feinberg, “The Morality of Abortion,” in Thou Shalt Not Kill: The Christian Case against Abortion, ed. Richard L. Ganz (New Rochelle, N.Y.: Arlington House, 1978), pp. 127-49, p. 143; Judith A. Boss, The Birth Lottery: Prenatal Diagnosis and Selective Abortion (Chicago: Loyola University Press, 1993), p. 102; Alan Donagan, The Theory of Morality (Chicago: University of Chicago Press, 1977), pp. 169-70. 3. The example of the particular burden involved comes from L. S. Carrier, “Abor­ tion and the Right to Life,” Social Theory and Practice 3 (1975): 381-401, pp. 398—99, though very similar examples can be found in a number of other writers who press this objection.

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fails to apply to cases in which the woman is (partly) responsible for the fact that she is pregnant.4 The claim that when a woman is partially responsible for her pregnancy the fetus has acquired the right to the use of her body seems to many people to be a devastating objection to Thomson’s argument, and, although Thomson anticipates the objection, she does not provide a satisfactory reply. She responds by suggesting that a woman who becomes pregnant because of contraceptive failure cannot reasonably be thought of as being responsible for the pregnancy,5 but this reply is unsatisfactory for at least two reasons. First, and perhaps most obviously, even if one concedes to Thomson the case of contra­ ceptive failure, the response itself seems to concede that a woman who fails to use contraception in the first place can be held responsible for her unwanted pregnancy and can thus be understood as having given

4. The Responsibility Objection is also at times given an indirect defense by appeal­ ing to the claim that if the objection is rejected, then there is no way to account for the presumed legitimacy of those laws which require men to pay child support to defray the costs of raising children conceived as a result of their having engaged in intercourse voluntarily. As one such critic has put it, “If such a minimal life-sustaining sacrifice [i.e., sustaining a pregnancy through to term] cannot be required of the mother before birth, how could even minimal child support be required of the father after birth?” (Keith J. Pavlischek, “Abortion Logic and Paternal Responsibility: One More Look at Judith Thomson’s ‘A Defense of Abortion,’” Public Affairs Quarterly 7 [1993]: 341-61, p. 348). This strategy merits a more detailed examination than I can give it here, but it should suffice for my present purposes to note that the nature of the burdens involved in the two cases is fundamentally different. The woman is required to suffer a distinctly intimate and physical burden while the man is required only to hand over some money. Of course, it might be pointed out that in order for the man to raise the necessary money he may also have to suffer a significant degree of physical pain and discomfort. As another such critic has pointed out, “If the father is a construction worker, the state will intervene unless some of the calories he expends lifting equipment go to providing food for his children” (Michael Levin, quoted in Francis J. Beckwith, “Arguments from the Bodily Rights: A Critical Analysis,” in The Abortion Controversy, ed. Louis P. Pojman and Francis J. Beckwith [Boston: Lones 8c Bartlett, 1994], pp. 155-75, p. 164). But surely it does not follow from the fact that one can choose to earn one’s money doing painful physical labor and then be required to make a financial sacrifice for a given cause that one can also be required to do a comparable amount of painful physical labor on behalf of that cause. If the state determined that it would be in the public interest to build a new highway, e.g., it would hardly follow from the claim that it would be morally permissible for the state to take some of the construction worker’s income to help pay for the highway that it would also be morally permissible for the state to force the construction worker to help to build the highway. As a result of this difference in the nature of the burdens involved, an opponent of the Responsibility Objection to Thomson’s argument need not be an opponent of child-support laws. 5. She is not completely explicit about this, but this is plainly the point of her examples of bars or screens failing to prevent unwanted burglars or people-seeds from getting in through a window (Thomson, p. 121).

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the fetus a right to the use of her body. A significant number of unwanted pregnancies arise in cases where contraception is not used, and the result would then be that, so far as Thomson’s argument is concerned, it is impermissible for these women to have abortions. Second, and more important, it can plausibly be argued that, since contraceptive devices are known to be imperfect, a woman who has intercourse using one is responsible for the results since she knowingly and voluntarily runs the risk of becoming pregnant. Hunters, after all, can still acquire a duty to provide blood to an innocent bystander they have accidentally shot, even if they took every reasonable precau­ tion to avoid this result short of not going hunting in the first place. So if Thomson cannot defend abortion in the case where contraception is not used, then she may well be unable to defend it even in the case where it is used, and if that is so then her defense of abortion will really be only a defense of abortion in cases of rape. And since only a very small fraction of abortions involve pregnancies arising from rape, and since a significant portion of those who generally oppose abortion are willing to make an exception in such cases anyhow, it will turn out that, if the Responsibility Objection is not defeated, Thom­ son’s argument will prove a greater contribution to critics of abortion than to its defenders. In this sense, the Responsibility Objection is the most important of all of the many objections which have been aimed at her argument. I will argue in what follows, however, that neither version of the Responsibility Objection should be accepted and that if Thomson’s argument succeeds in cases involving rape, then it succeds in nonrape cases as well. THE T A C IT CONSENT VERSION I will begin with the Tacit Consent Version, which seems to be the more common version of the Responsibility Objection and which, indeed, is often pressed even by those of Thomson’s readers who are generally sympathetic with her conclusions. As one such writer has put it, “The fetus does have a right to use the pregnant woman’s body [in nonrape cases] because she is (partly) responsible for its existence. By engaging in intercourse, knowing that this may result in the creation of a person inside her body, she implicitly gives the resulting person a right to remain.”6 The Tacit Consent Version turns on two claims: ( 1) that because the woman’s act o f intercourse is voluntary, she should be understood as having tacitly consented to something with respect to the state of affairs in which there is now a fetus developing inside of her body, and (2) that what she should be understood as having tacitly

6. Bonnie Steinbock, Life before Birth: The Moral and Legal Status of Embryos and Fetuses (Oxford: Oxford University Press, 1992), p. 78.

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consented to with respect to this state of affairs is, in particular, the fetus’s having a right to have the state of affairs continue for as long as this is necessary for it to remain alive. Both claims should be rejected. Let me begin with claim 1 , the claim that the fact that the woman’s act of intercourse is voluntary counts as evidence of her having tacitly consented to something with respect to the resulting state of affairs. There is surely something plausible sounding about this, since if the notion of tacit consent is to make sense at all it must arise from volun­ tary rather than involuntary actions, but I want to suggest that it rests on a confusion between a person’s (a) voluntarily bringing about a state of affairs S and (b) voluntarily doing an action A foreseeing that this may lead to a state of affairs S. My claim is that only a is a plausible candidate for grounding tacit consent in the relation between an agent and a state of affairs she is (or is partly) responsible for having brought about, and that any attempt to apply tacit consent to nonrape cases of pregnancy must appeal to b? If this is right, thp* we have no grounds for concluding that the woman who has intercourse without contraception has tacitly consented to anything with respect to the state of affairs in which a fetus is now developing inside her body. To see this, let us first consider what one would have to believe in order to affirm the claim that when a woman has voluntary intercourse without contraception and becomes pregnant as a result, she has tacitly consented to give the fetus a right to stay. In general terms, we could begin by saying that P has done a voluntary act A which caused the state of affairs S to exist, where S is the state of affairs in which Q is now infringing on P’s right to X.7 8 We want to know what conditions would be sufficient to make it be the case that P has tacitly consented to give Q the right to continue doing this. We could say that it is sufficient that A be voluntary and that A cause S. But this would imply that P consented to S even if P had no knowledge that A could lead to S. And this would amount to saying that if a woman has intercourse without contraception and does not understand that intercourse can lead to conception, then she has tacitly consented to carry the fetus to term. Since this is plainly unacceptable, we must at least add the requirement that A cause S in a manner that is foreseeable to P. Let us assume that these three criteria— voluntariness, causality, and foreseeability— are necessary in order to avoid unacceptable impli-

7. For two possible exceptions to this claim, see n. 10 below. 8 . This formulation might seem to beg the question, since if we conclude that the voluntariness of P’s doing A counts as evidence of P’s having consented to S, then it won’t be the case that S involves Q’s infringing on some right of P’s. Strictly speaking, then, we should say that S is the state of affairs in which Q is doing something that infringes on P’s right to X unless P does or has done something to grant Q the right to do this.

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cations.9 It seems correct that all three are satisfied in the case where a woman’s pregnancy arises from voluntary intercourse: her action was voluntary, was the proximate cause of the pregnancy which now infringes on her right to control her body, and was the cause of this state of affairs in a manner that was foreseeable to her (assuming that she understood that intercourse can lead to pregnancy). But all of this will show that a woman who engages in intercourse without contracep­ tion has tacitly consented to something with respect to the resulting state of affairs only if these conditions are not merely necessary, but sufficient. And the claim that these conditions are sufficient for having consented is implausible. Now, of course, one could argue against the claim that these conditions are sufficient for consent by arguing that no conditions short of explicit consent are sufficient. But since I want to identify a feature of this position that should be unacceptable even to those who embrace the general notion of tacit consent, I want to assume that tacit consent in and of itself is a perfectly reasonable doctrine and to argue by means of an example that puts this assump­ tion in a favorable light. So let us focus on a relatively uncontroversial instance of tacit consent: if you voluntarily leave some money on the table in a restaurant as you are leaving after your meal is over, then you have tacitly waived your right to it and have consented to allow the waiter to have it. You have made no explicit announcement that you intend to relinquish control of the money, of course, and have said nothing explicit which would indicate that you wish the money to go to the waiter rather than the chef or the busboy or the owner, but it nonetheless seems reasonable to maintain that your action amounts to a tacit declaration of just this sort. And surely it is the voluntariness of your act that makes this assessment reasonable, since if you had instead left the money on the table because you had been forced to do so by a knife-wielding assailant, we would not be inclined to say that you had tacitly consented to anything about it. But now consider the cases of Bill and Ted, each of whom has recently voluntarily exited a restaurant having voluntarily placed some money on the table at which he was dining alone. In Bill’s case, the state of affairs in which he is no longer in the restaurant and some of his money is on the table is a state of affairs he voluntarily brought about: after he finished eating, he stood up, took some money out of his wallet, placed it on the table, and walked out the door. In T ed’s case, the state of affairs is not one which he voluntarily brought about, but rather one which foreseeably arose from a voluntary action of his.

9. These requirements are typically acknowledged and defended by those who defend the Tactic Consent Version of the objection. See, e.g., Richard Langer, “Abortion and the Right to Privacy,” Journal of Social Philosophy 23 (1992): 23-51.

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As Ted sat down to eat, he discovered that the crumpled wad of dollar bills in his pants pocket made him uncomfortable, so he put them down on the table while he was eating, intending to put them back in his pocket when it was time to leave. A friend who was leaving the restaurant when Ted sat down saw this and warned Ted not to put the money there on the grounds that he might forget about it, but Ted foolishly refused, and when the friend urged that he at least tie a piece of string around his finger to remind himself to put the money back in his pocket before leaving, Ted declined, saying that he didn’t like the way having a piece of string tied around his finger “made him feel” while he was trying to enjoy a meal. Unfortunately, Ted was so lost in the rapture of his meal that he did indeed forget to put the money back in his pocket, and about ten minutes after he left the restaurant, he suddenly realized his mistake and headed back to clear things up. Now clearly Ted has no one to blame but himself. It isn’t as if someone else forcibly removed the money from his pocket and put it on the table. Still, it is surely unacceptable to say that by putting the money on the table when he sat down Ted tacitly agreed to let the waiter keep it if as a foreseeable consequence of this act the money was still on the table when he left. Yet if the three conditions identified as necessary conditions for consent are also taken to be sufficient, there can be no way to account for the distinction between the cases of Bill and Ted. In Ted’s case, just as in Bill’s, all three criteria for waiving one’s rights are satisfied: Ted’s putting his money on the table without tying a piece of string on his finger was voluntary, was the proximate cause of his leaving the money in the restaurant, which in turn was a foreseeable (even if unintended) consequence of his act. These three criteria cannot distinguish between the cases of Bill and Ted precisely because they overlook the distinction between a and b noted above. The cases are different because Bill voluntarily brings about the state of affairs in which he has left the restaurant with his money still on the table, while Ted does not. Ted voluntarily puts the money on the table foreseeing that this may result in the state of affairs in which he has left it in the restaurant. And the lesson of this is that even if deliberately creating a state of affairs counts as consenting to the burdens it imposes on you (as in the case of Bill), it does not follow that being partly responsible for that state of affairs counts as such consent (as in the case of Ted). This analysis has the following implications for the application of tacit consent theory to cases of voluntary intercourse.10 A woman who

10. It might objected that very little, if anything, about cases of voluntary inter­ course follows from my analysis of the sufficient conditions for consent on the grounds

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is merely (partly) responsible for her unwanted pregnancy has not voluntarily brought about the state of affairs in which the fetus is making demands on her body. She has voluntarily brought about the state of affairs in which a man is having sexual intercourse with her, foreseeing that this might bring about the further state of affairs. In this respect, she is like Ted rather than Bill. And since Ted’s relation to the unwanted state of affairs he has produced is not sufficient to warrant the claim that he has consented to it, the same is true of her. We cannot justifiably insist that she has tacitly consented to waive the right to the control of her body. Suppose that once she discovers that

that the analysis itself arises from a relatively trivial example. Relatively little is at stake in the question of who has the right to the use of (what was at least initially) Ted’s money, but a great deal is at stake in the question of who has the right to the use of the pregnant woman’s body. So one might well think that even if Ted has the right to take the money back from the waiter, it does not follow that the woman has the right to take the use of her body back from the fetus, and that attending to the example of tipping can thus do little to illuminate the moral problem of abortion. I certainly agree that the woman’s right to abort the fetus does not follow from Ted’s right to reclaim his money. There may be any number of important differences between the two cases. But viewing this as a problem for my analysis misconstrues the purpose of the example. I am not arguging that the woman has a right to abort the fetus because she has not consented to refrain from doing so. Rather, I am responding to an argument which claims that she lacks the right to abort the fetus because she has consented to refrain from doing so. That argument turns on the claim that the voluntariness of the action which produced the state of affairs justifies the attribution of consent, not on the claim that she is obligated to sustain the fetus because its very life is at stake. And the example of Bill and Ted demonstrates that this claim about consent is untenable. It may be worth noting, however, that the importance of the distinction between a and b which I have been arguing for would be revealed even if we focused on less straightforward and more controversial examples of consent. Suppose one believed, e.g., that if you take off your coat and put it in the arms of a homeless person who needs the coat in order to survive the winter, then you have tacitly consented to let him keep the coat for as long as he needs it. It might be thought that in some respects this is more representative of what is at stake in cases of abortion. Still, this would not support the conclusion that if you take your coat off on a windy day because you want to experience the pleasure of a chilling breeze against your bare skin, then you must let the homeless person keep it if, as a foreseeable (but unintended and undesired) consequence of your action, the coat is blown into his arms. Again, there may be good reason to believe that you would be obligated to let the homeless person keep the coat at that point, but the reason cannot plausibly be grounded in the claim that you have consented to let him keep it, and that is the claim I am concerned to address in this section. I have avoided appealing to such cases (you let someone into your house because it is cold outside, etc.) in developing my argument for the importance of the distinction between a and b because it is less clear that people will agree that you have consented to let the person keep the coat (or stay in your house) for as long as he needs to even in the case where you deliberately hand it to him (or let him in; perhaps you only mean to let him use the coat until you are ready to go home or to remain in your home until you are ready to go to bed), and I want to work from a case that puts the tacit consent claim itself in the most favorable possible light.

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she is pregnant she endeavors to have the pregnancy terminated. Then she is like Ted when he returns to the restaurant to retrieve his money after he discovers that he has (foreseeably, but not deliberately) left it on the table. It seems clear that in Ted’s case we must take this to mean that he has not agreed to waive his right to the control over the money. Similarly, we must take this to mean that she did not give and has not given the fetus a right to the use of her body. The mere fact that her pregnancy resulted from voluntary intercourse for which she is responsible, then, cannot be reasonably understood as evidence that she has consented to anything with respect to the fetus.11 Let me make one further point about the distinction between voluntarily creating a particular state of affairs and voluntarily acting with the foresight that a particular state of affairs may result: its impor­ tance is revealed by seeing what happens when it is ignored, and it is ignored in an analogy often offered by proponents of the Responsibil­ ity Objection. Langer, for example, motivates his defense of the objec­ tion with the following example: Imagine a person who freely chooses to join the Society of Music Lovers, knowing that there was a 1 in 100 chance of being plugged into the violinist if she joins the society. She certainly

11. Two exceptions might be urged here. One is the case of a woman who freely chooses to have an embryo implanted in her. This does seem to be a case in which she voluntarily brings about the state of affairs in which there is a fetus making demands on her body, rather than one in which she merely foresees that her action may lead to this state of affairs. It thus seems plausible to think of it as a genuine case in which, if one believes in tacit consent, one will have good grounds for thinking that consent has been given. The other is what might be called the case of intentional conception, one in which the woman deliberately refrained from using contraception because she wanted to become pregnant. She does seem to do more than merely foresee that the subsequent state of affairs may arise, and so it can again seem plausible to suppose that in this case she has consented to it. Each sort of exception seems plausible, but each raises difficult­ ies. In the case of the embryo implant, we would need to be careful about specifying the content of the rights waiver that was consented to; as Sara Worley has pointed out to me, it may seem implausible to suppose that a woman who consents to have multiple embryos implanted in her as a part of infertility treatment should be understood as waiving the right later to remove one in order to improve the prospects of survival for the others. And as Marcia Baron has noted, such a woman might also be understood as tacitly agreeing only to bear at least one child by virtue of such a procedure without having agreed to bear all of them. In the case of the intentional conception, on the other hand, there is a sense in which it does not seem right to say that, strictly speaking, the woman intentionally becomes pregnant. She does what she hopes will lead to pregnancy, but there are many factors beyond her control which may lead one to conclude that the pregnancy should not be understood as a state of affairs that she voluntarily creates. I will leave the question about how to treat both cases open, and thus accept the possibility that my argument against the Tacit Consent Version does not apply in either or both of these cases. Since abortions arising from such cases are relatively rare, however, this is at most a very small concession.

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does not desire to be plugged into the violinist, but at the same time she desires to join the society, and feels the one in one hundred odds are an acceptable risk. She goes ahead and joins, and much to her chagrin, her name is selected as the person to be plugged into the violinist. Is it unreasonable to say that she has waived her right to control over her own body? I think not.12 On this account, the woman who risks an unwanted pregnancy by voluntarily engaging in intercourse is like the woman who risks being plugged into the violinist by voluntarily joining the Society of Music Lovers. And since the second woman clearly waives the right to control of her body, so does the first. The problem with the analogy is this. Langer says that the second woman “freely chooses to join” the society, and this sounds as if it means that her voluntary action just is the action of agreeing to abide by the society’s rules. And since the society’s rules include entering every member in a lottery to decide who will be plugged into the violinist, it follows that her act is the act of agreeing to be entered into the lottery, from which it of course follows that if her name is called she must be understood as having waived her right to control her body. This is because her voluntary action just is the act of entering the lottery, rather than an action with the foreseeable consequence that others will treat her as if she had. In order for the two cases to be parallel, then, we must assume that the first woman has similarly agreed to enter her name in a comparable pregnancy lottery by virtue of her having engaged in voluntary intercourse. But we cannot assume that she has so agreed because whether she has is precisely the question we are attempting to answer.13 The problem with the analogy becomes more apparent, I think, if we set it straight by simply having the second woman freely choose to do some action foreseeing that it may lead to the society’s taking her and plugging her into the violinist as the woman foresees that her voluntary intercourse without contraception may lead to pregnancy. So suppose instead that you are this woman, and that the society was known to have hired kidnappers who were lurking in the park at night. Your friends warned you: don’t go into the park alone at night

12. Langer, p. 42. Although he does not note this, the same example is used to make the same point by Warren, pp. 232-33. 13. It might be argued that in a society which legally prohibits abortion except in cases of rape a woman who engages in voluntary intercourse enters precisely such a lottery. Even if we think that such a woman has tacitly consented to carry the fetus to term, however, this would only be because she has tacidy agreed to obey a law, not because she has granted a right to the fetus. And Thomson’s argument is addressed to the proponent of the claim that abortion is impermissible because it violates the fetus’s right to life.

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because there are kidnappers from the Society of Music Lovers lurking there, and if you do go then for God’s sake carry some Mace. But you nonetheless voluntarily engaged in walking through the park, knowing that this might result in being kidnapped, and you didn’t bring Mace with you just because you don’t like the way that carrying protection “makes you feel” when you are trying to enjoy a stoll (after all, you told yourself, people take unprotected walks through the park all the time without becoming kidnapped).14 Being harsh, your friends might later say that you got what you deserved, but they could not truthfully say that you got what you had tacitly consented to. And so it is again with the woman whose unwanted pregnancy arises from voluntary intercourse without contraception. She may be partly responsible for it, but, as with the forgetful customer who is partly responsible for his money being on the table after he has left the restaurant, this partial responsibility cannot reasonably be taken as evidence of consent.15 My argument against claim 1 of the Tacit Consent Version has to this point focused on the distinction between deliberately bringing about a particular state of affairs and deliberately doing an action foreseeing that a particular state of affairs may arise as a result. But before turning to claim 2 of the argument, I want to note a further difficulty with claim 1 that remains even if we picture the woman as deliberately becoming pregnant rather than merely being partly responsible for her pregnancy. So return for a moment to the case of Bill, who deliberately left some of his money on the restaurant table after his meal and proceeded to walk out the door. Why are we so confident that this counts as evidence that he has consented to transfer

14. In constructing the analogy in this way, I do not mean to suggest that when a couple has intercourse without contraception this is always the result of a deliberate policy devised exclusively to increase their level of physical pleasure. The story might be modified to say that you thought you had Mace with you but at the last minute could not find it, or that you usually carry Mace but forgot this one time, or that you are deterred from purchasing Mace because you are made to feel shameful when you go to the store to buy it, or that your religious leaders have told you that it is immoral, and so on. I will stick with my version because I want to show that even in what amounts to a kind of “worse case” scenario for Thomson’s argument, the woman’s voluntary action does not give the fetus any more right to the use of her body than it would have in cases involving rape. 15. It might be thought that the concession here that it would be fair to say that you had gotten what you deserve plays into the hands of Thomson’s critics. After all, wouldn’t it then follow that the pregnant woman has also gotten what she deserves? But all that can plausibly be meant here is that it is fair to make you bear the costs of extricating yourself from the situation, since it is not as if someone else had forced you into the park. And the concession that in those cases in which the woman is (partly) responsible for her pregnancy she should also be (partly) responsible for bearing what­ ever physical, economic, and psychological costs an abortion may involve seems perfectly reasonable and surely consistent with Thomson’s position.

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his right to control the money to the waiter, rather than to the owner, or the busboy, or the customers at the next table? Or why isn’t it simply a waiver of his right to the money with the result that whoever sees it first is entitled to take it? Presumably, this is because there is a well-established convention which constitutes the background against which the act is performed. If the act of leaving money on the table took place in a culture where there was no convention about tipping, then it would be unreasonable to take the act as consenting to transfer the right to the money to the waiter. And this suggests that there is at least one further necessary condition for an act to count as evidence of consent: it must take place in a culture where there is a convention by which it is so understood. Indeed, this is presumably true of explicit consent as well, insofar as a handshake, for example, will only be evidence of consent if it takes place in a context where it is so under­ stood. But this creates a further problem with the attempt to use tacit consent theory as grounds for raising an objection to Thomson. It is unclear, to say the least, that in our culture there is such a convention, and it is certainly clear that in other cultures there is no such conven­ tion. Consider a woman in China who already has as many children as she is permitted by her culture to have.16 It just seems patently false to insist that if she engages in voluntary intercourse without using contraception then she is tacitly consenting to allow the fetus to stay. If anything, she will be understood as having tacitly agreed not to allow the fetus to stay, though I do not mean to press this suggestion. The point is simply that a person’s act cannot be taken as tacitly consenting to anything unless it takes place in a context where it is generally understood as constituting such consent.17 I have been concerned to this point to argue against claim 1 of the Tacit Consent Version, the claim that, because the woman’s act of intercourse is voluntary, she should be understood as having tacitly consented to something with respect to the state of affairs in which there is now a fetus making demands on her body. If my argument

16. Iam aware that the following example simplifies in some respects the present policy of the Chinese government; if any of the simplifications affect the argument, we can simply treat this as a fictional version of China. 17. In addition, it is worth noting that not every act is a suitable candidate for counting as evidence of consent to something. If the act is such that refraining from performing it is itself a substantial burden to the agent, then viewing the act as con­ senting to S amounts to coercing the agent into consenting to S, and expressions of consent which are coerced are generally recognized to be nonbinding. And as Smith points out, a strong case can be made for saying that refraining from voluntary inter­ course is a substantial enough burden to undermine the suitability of voluntary inter­ course as a sign of consenting to anything (Holly M. Smith, “Intercourse and Moral Responsibility for the Fetus,” in Abortion and the Status of the Fetus, ed. William B. Bondeson et al. [Dordrecht: Reidel, 1983], pp. 229-45, pp. 237-38).

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has been successful, then the woman who has intercourse without contraception is not like you if you voluntarily plug yourself into the violinist, but is rather like you if you voluntarily engage in some pleasurable activity with the foresight that this might end up causing you to become plugged into the violinist. And in that case, if my suggestion has been accepted, you have not agreed to give the violinist the right to your body. But let us now suppose that I have been mistaken about this. Let us suppose that the woman is just like you if you freely walk into the violinist’s room, sit down next to him, and plug yourself in. I will take it that this implies that you have consented to being plugged in. But what follows from this? I think that there is at least one thing that does follow: suppose that the procedure involved in unplugging you from the violinist is itself somewhat painful and costly. If you were involuntarily plugged into the violinist, then whoever forced you to be plugged in should have to bear the costs of and compensate you for the suffering involved in the unplugging. But if you freely plugged yourself in, then you should have to bear these costs on your own. So we might say that freely plugging yourself into the violinist constitutes consent to bear the costs of unplugging yourself. But does it constitute consent to more, and, in particular, consent to remain plugged in for the ninemonth period that the violinist requires? This too seems implausible. Suppose that because of your unique compatibility, the violinist will die unless you undergo a series of nine painful bone marrow extrac­ tions over the next nine months, and, with a clear understanding of the nature of the procedure and its potential risks, you freely volunteer to begin the treatment. After the second round of extraction, however, you find that the burden is considerably more than you are willing to bear on his behalf. Do we really believe that it would now be impermis­ sible for you to discontinue providing aid to the violinist merely be­ cause you began the procedure voluntarily? This would seem implausi­ ble. It would be to say that the violinist’s right to life does not entitle him to seven more extractions of bone marrow from you if the first two were done involuntarily, but that it does entitle him to seven more extractions if the first two were done voluntarily.18 And if I am right about this, then even if we picture the woman’s unwanted pregnancy

18. Similarly, Kamm points out that voluntarily bringing someone into your house does not constitute a tacit agreement to let him stay. She also notes that accepting the view that voluntarily beginning to aid makes discontinuing aid impermissible would deter many people from offering aid in the first place, since once they started voluntarily it would become impermissible for them to discontinue, and they might be genuinely uncertain about whether they would be willing to provide all of the aid needed but willing to try as long as they would be free to stop if they so desired (Frances Myrna Kamm, Creation and Abortion [Oxford: Oxford University Press, 1992], pp. 23, 108).

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as evidence of consent (and I have already argued that this is unwar­ ranted), it should not be understood as consent to keep the fetus in her care for as long as is necessary for the fetus to survive.19 I conclude that both claims of the Tacit Consent Version should be rejected, and that the objection thus fails to undermine Thomson’s analogy for typical nonrape cases such as those in which a woman voluntarily has intercourse without contraception. If Thomson’s analogy is successful in rape cases, then the Tacit Consent Version fails to show that it is not also successful in nonrape cases as well. THE NEGLIGENCE VERSION Let us now consider what I am calling the Negligence Version of the Responsibility Objection. This version of the objection dispenses with the claim that the woman has tacitly consented to assist the fetus and instead argues that she is like someone who is partly responsible for an accident which has caused ah innocent bystander to be in need of her assistance. Tooley, for example, argues that Thomson’s position is undermined by considering a case in which you engage in a pleasurable activity knowing that it may have the unfortunate side effect of destroy­ ing someone’s food supply. You did not intend to cause the loss of food, let us assume, but it nonetheless resulted from your voluntary actions, and in a manner that was foreseeable in the sense that you knew your actions risked causing a loss of this sort. Surely most of us will agree that you do owe it to the bystander or victim to save his life even at some considerable cost to yourself, even though you need not be understood as having consented to do so in virtue of your having undertaken the risky action voluntarily. But if this is so, then the woman whose pregnancy is the accidental but foreseeable result of her voluntary actions owes the fetus the use of her body even if she did not tacitly consent to this.20

19. There may, of course, be other important differences between the bone mar­ row case and the pregnancy case. The cost in terms of suffering may be different, and refraining from giving more bone marrow might seem to be a case of letting die while refraining from continuing the pregnancy might be a case of killing. One might, then, consistently believe that you don’t have to keep giving bone marrow while you do have to keep supporting a fetus. My point here is simply that this will have to be for reasons other than the fact that the support was begun voluntarily, so that the mere fact of voluntary initiation of support does not imply a duty to continue it. But the Tacit Consent Version depends on its being the case that the fact of voluntary initiation itself does imply such a duty. 20. Michael Tooley, Abortion and Infanticide (Oxford: Clarendon, 1983), p. 45. The same objection is made by means of similar examples by, e.g., Carrier, pp. 398-99; Francis J. Beckwith, “Personal Bodily Rights, Abortion, and Unplugging the Violinist,” International Philosophical Quarterly 32 (1992): 105-18, pp. I l l —12, and “Arguments from Bodily Rights,” p. 164.

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Let me begin by noting one reason to be suspicious of analogies with cases of negligence in general. Beckwith, for example, argues that the claim that voluntarily engaging in intercourse with the fore­ sight that this might result in pregnancy imposes a duty to care for the offspring “is not an unusual way to frame moral obligations, for we hold drunk people whose driving results in manslaughter responsi­ ble for their actions, even if they did not intend to kill someone prior to becoming intoxicated.”21 But in the case of drunk or negligent driving, we already agree that people have a right not to be run over by cars and then determine that a person who risks running over someone with a car can be held culpable if that person has an accident which results in the violation of this right.22 In the case of an unin­ tended pregnancy, on the other hand, the question of whether or not the fetus has a right not to be aborted is precisely the question at issue. So it is difficult to see how an argument from an analogy with negligence can avoid begging the question. But there is an even more fundamental problem with this version of the Responsibility Objection. The problem can be most clearly iden­ tified by asking precisely why we are so confident that the one who stands in need of your assistance has the right to it in the sorts of cases that Tooley, Beckwith, and Carrier employ. Presumably, as a first approximation, we would say something like this: it is because if you hadn't done the voluntary action which foreseeably led him to be in need of your assistance, he wouldn’t be in need of your assistance in the first place. And this seems reasonable enough. But now consider that there are two distinct ways in which this counterfactual claim can be true: (1) if you had not done the action, he would not now exist (and so would not now exist in a state of dependency on you); and (2) if you had not done the action, he would now exist, but not in a state of dependency on you. Assuming that your voluntarily doing the action makes you responsible for the resulting state of affairs, we can recast this distinction as one between two different senses in which you might be responsible for the state of affairs in which P now stands in need of your assistance in order to survive: 1) you are responsible for the fact that P exists 2 ) you are responsible for the fact that, given that P exists, P

stands in need of your assistance.

21. Beckwith, “Personal Bodily Rights, Abortion, and Unplugging the Violinist,” pp. 111-12, and “Arguments from Bodily Rights,” p. 164 (Beckwith makes this claim in the context of defending the father’s responsibility to care for the offspring, but it is presumably meant to apply equally to the case of the mother). 22. Though even this claim is by no means unproblematic, as the literature on moral luck demonstrates.

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The first thing to note is simply that these two senses are distinct. As Silverstein has pointed out, one could be responsible for P’s predica­ ment in either, neither, or both senses, generating four distinct possi­ bilities which can easily be conflated.23 In Thomson’s (kidnapping) version of the story, you are not responsible for the violinist in either sense 1 or sense 2 . The proponent of the Negligence Version of the Responsibility Objection agrees that you are permitted to unplug your­ self in this case and concedes that, unless there is another morally relevant asymmetry, this case is relevantly similar to that of a woman whose pregnancy results from rape. He then argues that in cases of voluntary intercourse the woman is responsible for the fetus, so that while Thomson’s example is relevantly similar to rape cases it is not relevantly similar to nonrape cases. But in cases such as Beckwith’s, Carrier’s, and Tooley’s, in which you cause an accident as a result of some voluntary action of yours, you are responsible for the bystander in sense 2 and not sense 1, while even in nonrape cases, the woman is responsible for the fetus only in sense 1 and not in sense 2 . She is responsible for the existence of the fetus, that is, since her voluntary actions foreseeably caused the fetus to exist, but she is not responsible for the fact that, given the existence of the fetus, the fetus stands in need of assistance from her. In the cases of Beckwith, Carrier, and Tooley, there were numerous alternative courses of action available to you which would have resulted in the bystander’s still existing and not in a state of dependency on you, but in the case of the pregnant woman, there was no course of action available to her which would have resulted in the fetus’s existing and without needing assistance from her. So this condition of the fetus, given that it exists, is not something that she is responsible for. Because of this distinction, we cannot yet say that the rape case is unlike the nonrape case in a morally relevant way. We can say only that the rape case is like the nonrape case in terms of responsibility in sense 2 and is unlike the nonrape case in terms of responsibility in sense 1 . And this means that the Negligence Version of the Responsibility Objection can be sustained only if we agree that the difference in terms of responsibility in sense 1 alone is itself morally relevant.24 This assumption stands in need of

23. Harry S. Silverstein, “On a Woman’s ‘Responsibility’ for the Fetus,” Social Theory and Practice 13 (1987): 103-19, p. 106. 24. Note that my claim is not that it would be improper to use the term “negligent” to describe the behavior of a woman who has intercourse without using birth control (although something like “irresponsible” might be more apt). My claim is simply that, whatever we call her action, it lacks the feature of characteristically negligent acts such as those cited by Tooley, Beckwith, and others which plausibly justifies attributing a right to assistance to the one who stands in need of assistance as a foreseeable result of the action.

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defense but is typically not even noted, let alone defended, by those who press the Negligence Version of the Responsibility Objection. The question, then, is what we should say about cases in which you are responsible for another in sense 1 but not in sense 2. It is perhaps not immediately apparent how to go about answering this question. One wants to consider cases in which you do some action such that, had you not done it, this dependent person would not now exist, and given that you have done it, this person is now dependent on you. And it may seem that there really are no such cases other than those in which the act is simply the act of conceiving the person. If that is so, then we cannot usefully illuminate the case of voluntary intercourse by appealing to other cases and may simply have to con­ clude that we have a case here that cannot be resolved either way by appealing to more generil principles. But this pessimism is premature. For there is another kind of action which is such that had you not done the action the person would not now exist: not the act of creating his life, but the act of extending it. Suitably constructed, such cases offer a means of testing the relative significance of the different senses of responsibility involved in the objection. And when they are con­ sulted, the Negligence Version is undermined. For consider first the following story:25 Imperfect Drug: You are the violinist’s doctor. Seven years ago, you discovered that the violinist had contracted a rare disease which was on the verge of killing him. The only way to save his life that was available to you was to give him a drug which cures the disease but has one unfortunate side effect: five to ten years after ingestion, it often causes the kidney ailment Thomson has described. Knowing that you alone would have the appropriate blood type to save the violinist were his kidneys to fail, you pre­ scribed the drug and cured the disease. The violinist has now been struck by the kidney ailment. If you do not allow him the use of your kidneys for nine months, he will die. In this story, you are responsible for the violinist in the first sense. He currently exists only because, in giving him the drug, you volunta­ rily acted in a way which foreseeably caused him to exist at this time. But you are not responsible for the violinist in the second sense. Given that he (still) exists, you are not responsible for his need of your kidneys because there was no course of action available to you seven years ago that would have caused it both to be the case that the violinist would now be alive and to be the case that he was not in need of the

25. This is a condensed and slightly modified version of an example given by Silverstein, “On a Woman’s ‘Responsibility’ for the Fetus,” pp. 106-7.

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use of your kidneys.26 This is what makes Imperfect Drug importantly different from what I will call Malpractice: Same as Imperfect Drug, except that you could have given the violinist a perfect drug which would have cured him with no side effects. But out of indifference or laziness you chose to give him the imperfect drug. In the case of Malpractice, you are responsible for the violinist in both senses. I suspect that most people will think that you do owe the violinist the use of your kidneys in Malpractice but that you do not in the case of Imperfect Drug. We might put the reason for this in a few ways. We might say that in Malpractice there is a clear sense in which you harmed him by giving him the drug you gave him, while in Imperfect Drug there is no sense in which you harmed him. Or we might put it like this: suppose that, in the first case, you had told the violinist that you could either give him the imperfect drug or no drug at all, and that if you gave him the imperfect drug you would refuse to lend him the use of your kidneys should he later develop the kidney ailment. Presumbly, the violinist would have chosen to take the drug rather than the alternative. But suppose that, in the second case, you had told him that you could either give him the imperfect drug or the perfect drug or no drug at all, and that if you gave him the imperfect drug and he later developed the kidney ailment you would refuse to lend him the use of your kidneys. Presumably, for consistency the violinist would have chosen to take the perfect drug. So we can say that you do not incur a further duty to assist the violinist when you make the choice that leaves him best off, or is the one he would have selected, but that you do incur such a duty when you fail to do so. And either way, if this is our response, then we must conclude that if you are responsible for another in sense 1, this only imposes an obligation on you if you are also responsible in sense 2 . And if this is so, then the Negligence Version of the Responsibility Objection fails: pregnancies which arise from voluntary intercourse are relevantly similar to Imperfect Drug rather than to Malpractice.27 And so,

26. In his response to an objection raised by Langer, Silverstein is more clear that this is the central point of his argument. See Richard Langer, “Silverstein and the ‘Responsibility Objection,’” Social Theory and Practice 19 (1993): 345-58, pp. 348-49; Harry S. Silverstein, “Reply to Langer,” Social Theory and Practice 19 (1993): 359-67, pp. 361 if. 27. Of course, one might maintain that even in Malpractice the doctor does not owe the violinist the use of his kidneys (and one could hold this even while believing that the violinist was nonetheless entitled to something as compensation or punitive damages). And it would then follow that Thomson’s argument would be secure even if it turned out that the pregnancy case was more like Malpractice than like Imperfect Drug. Since this assessment seems controversial at best, and since I claim that Thomson’s

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again, if Thomson’s argument succeeds in rape cases, it succeeds in nonrape cases as well.28 A few objections which might be raised against this argument merit notice. The argument rests on the claim that if you are responsi­ ble for someone in sense 1 but not in sense 2, then you incur no duty to assist them at some cost to yourself. But this claim can be challenged in two ways. The first arises from the possibility that by being re­ sponsible for a person only in sense 1 you could still harm him or do other than he would have chosen to have you do, and thus still have a duty to provide the needed assistance. Consider, for example, the case of Really Imperfect Drug: Same as Imperfect Drug except that the situation arose a few weeks ago, and the only way to save his life that was available to you was to give him a drug which in every case causes continuous excruciating pain for a few weeks which then ceases with the onset of kidney failure. Knowing that the drug would certainly cause both the pain and the kidney failure, and knowing that you alone would have the appropriate blood type to save the violinist once his kidneys failed and to enable him to then go on and live a healthy, happy, independent life, you gave him the drug which cured the disease and caused the pain to begin. The violinist has now been struck by the kidney ailment. Let us assume, what some might deny, that the violinist is better off dying right away of the rare disease than taking the drug, if he is only going to endure a few weeks of agony and then die of the kidney failure anyhow. Let us also assume that he is better off still if he takes the drug and endures the pain and is then saved from the kidney failure and enjoys the rest of his life. In that case, while you are not responsible for the fact that, given that the violinist exists, he needs the use of your kidneys, it is nonetheless true that if you refrain from assisting him now, he will have been made worse off by your having given him the drug than he would have been had you let him die at

argument can be defended without it, I will not rely on it here though I do not mean to be insisting that it is mistaken. 28. One might well be inclined to object at this point that the woman is responsible for helping the fetus precisely because there was no way for her to make it the case that the fetus exists without making it the case that the fetus exists in a state of dependence on her, while there was a way for her to avoid making it the case that the fetus exists in the first place: she could simply have abstained from having intercourse. But this would seem equally to imply that you are responsible for aiding the violinist in Imperfect Drug. There was no way for you to make it the case that the violinist (still) exists without making it the case that he exists in a state of dependence on you, but there was a way for you to avoid making it be the case that he still exists in the first place: you could simply have abstained from giving him the drug.

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that time (or that he would have chosen no d ru g at all over dru g with no subsequent kidney assistance). And this makes it plausible to suppose that you now have a duty to save him from the kidney failure, even at some substantial cost to yourself. If we accept this analysis, then we m ust modify o u r original claim to read: if you are responsible for a person in sense 1 but not in sense 2, then you incur no duty to assist that person at some cost to yourself unless his or her existence without your assistance is itself a harm.29 This modification of the argum ent will affect its ability to under­ mine the Negligence Version o f the Responsibility Objection, however, only if we believe that a fetus is made worse off by being conceived and then aborted than it would have been if it had never been conceived in the first place. I cannot pretend to offer a conclusive rebuttal to this claim here, so it will have to suffice simply to note that the claim is controversial at best, unintelligible at worst (since the fetus would not “have been” anything had it not been conceived), and that proponents o f the Negligence Version have thus far failed'to make a convincing case for it or even to recognize that such a case is required by their position. B ut it may be worth noting, in addition, that the sorts of argum ents typically offered in defense of the claim in o th er contexts are unsatisfactory. Michael Davis offers one argum ent for the claim that the fetus is made worse off by being made to live a short time and then being killed than if it would have been if it had never existed at all by appealing to the following example: T o be killed is bad, so bad that merely being brought into exist­ ence for a time is not necessarily enough to make up for it. We would not, I take it, allow a scientist to kill a ten-year-old child ju st because the scientist had ten years ago ‘constructed’ the child out of a dollar’s worth o f chemicals, had reared it for ten years in such a way as to make it impossible for the child’s care to be given to anyone else for another eight years, and now found the care of the child a far g re ater burden than he had expected.30 But this example simply does not support the conclusion. For suppose we agree that we would not allow such a scientist to kill his or her child. Davis simply assumes that this m ust be so because the killing is so bad for the child that the high quality of the child’s (short) life does 29. Silverstein himself accepts this emendation, and it also runs parallel to the notion of a “baseline” employed by Kamm, who argues that you are (or may be) obligated only to ensure that the violinist not be made worse off than he would have been had you not been hooked up to him in the first place. See Silverstein, “On a Woman s ‘Responsibility’ for the Fetus,” p. Il l ; Kamm, e.g., pp. 26, 43, 89—90. 30. Michael Davis, “Foetuses, Famous Violinists, and the Right to Continued Aid,” Philosophical Quarterly 33 (1983): 259-78, p. 277.

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not make up for it. Only on this assum ption would our saying that the scientist does som ething impermissible commit us to the claim that one is made worse off by being made to live a short time and then being killed than if one had never existed. But this assum ption is unw arranted. It seems much more likely that our response to Davis’s example (assuming that we share his response) reveals instead that we believe that some acts are impermissible even though they leave no one worse o ff than they would otherwise have been. Suppose, for example, that a woman knows that if she conceives a child now it will live a ju st barely worthwhile life and die at fifteen but that if she waits a m onth she will conceive a child who will live an extremely happy life to a ripe old age. We m ight well criticize her if she has the first child rather than the second, but that is no evidence that we think that this child is made worse off than if he had never lived. It is instead evidence that we think (if we do criticize her) that there are wrongs that harm no one. Similarly, if we share Davis’s response to the scientist example, this is not because we think the child would have been better off never having been conceived. A second defense o f the claim that a fetus is made worse off by being conceived and then aborted than it would have been had it never been conceived arises from the following thought: death, especially prem ature death, is a great harm to the one who suffers it, while the provision of a very short am ount o f life, especially life of the sort one enjoys during the first few months after conception, is a relatively small benefit to the one who receives it. So one who is conceived and then aborted is granted a relatively small benefit and then a relatively great harm , which seems to add up, on the whole, to a worse state than that of one who is not conceived in the first place and who thus receives no benefit and no harm. This argum ent is unacceptable for two reasons. In the first place, as Nagel has pointed out, “if death is an evil at all, it cannot be because of its positive features, but only because o f what it deprives us of.”31 But if to say that death is a great harm to the fetus is to say that death deprives the fetus of great goods it would enjoy if it were to go on living, this provides no support for the claim that the fetus would have been better off still if it had enjoyed no such goods in the first place.32

31. Thomas Nagel, “Death,” in his Mortal Questions (Cambridge: Cambridge Uni­ versity Press, 1979), pp. 1-10, p. 1. 32. This response is pressed persuasively by Kamm, who also argues that the claim is importantly at odds with our attitudes toward women who are prone to miscarriage: we do not think it wrong for them to try to have children even if it takes several attempts, but surely we would think it wrong if we thought this meant making several fetuses worse off than they would have been had they never been conceived. See Kamm, pp. 84-87.

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In addition, the argum ent would seem equally to imply that a sixyear-old child who leads a happy life and then dies in her sleep would have been better off never having been conceived. A fter all, the totality of the goods she is deprived o f by death is m uch greater than the totality o f goods she has so far enjoyed, and if the harm of death consists in the greatness of the good it deprives one of, then this would m ean that the harm s in her life greatly outweighed the benefits. But as tragic as her death is, the conclusion that she would have been better off never having been conceived is plainly absurd. O f course, it is open to the proponent of the Negligence Version to attem pt to articulate and defend a conception o f the nature o f death on which it turns out both that the fetus is worse off being conceived and then aborted than not being conceived and that this is not so of the sixyear-old who dies in her sleep,33 but in the absence of such a defense, the attem pt to defend the objection to T hom son’s argum ent by appeal­ ing to cases such as Really Im perfect D rug is unsuccessful. A second response to the argum ent I have developed to this point would be to insist that if you are responsible for a person in sense 1 but not in sense 2, then you can still incur a duty to assist that person at some cost to yourself even if his or h er existence without your assistance is not itself a harm . And Langer offers what seems to be a plausible example to support this claim: his relationship with his oneyear-old son: “I am responsible for his existence, but I am not responsi­ ble for the condition in which he finds himself. . . . He is in a condition which requires constant physical attention, long-term financial aid, and significant psychological n u rtu re . . . I have caused his existence, but I certainly have not caused him to be in this terrible, needy condi­ tion. Do I not have an obligation to care for his needs?”34 This is plainly a case in which som eone is responsible for another in sense 1 but not in sense 2 (since there was no option available to Langer on which his son would both exist and not be in this needy condition), yet it is not (or at least need not be) the case that Langer’s son would be harm ed by being born and living for only a year as opposed to never being conceived in the first place. If it is necessary that Langer be guilty of harm ing his son by conceiving him in order for him now to have an obligation to care for him, then, since Langer has not harm ed his son by conceiving him, he has no obligation to care for him. But Langer takes it that we all think he does have such an obligation since “the laws and moral intuitions of ou r society strongly 33. One might appeal in part to the idea that being unjustly killed is worse than simply dying in one’s sleep, but this claim too is a bit difficult to make sense of and would in any event clearly beg the question at issue, which is whether or not the killing of the fetus is unjust. 34. Langer, “Silverstein and the ‘Responsibility Objection,”’ pp. 351—52.

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oppose child abandonm ent.”35 And if that is so, then you can be re­ sponsible for assisting som eone even if you are only responsible for them in sense 1 and not in sense 2 and even if you have not harm ed them relative to their never having been conceived. And that is the sense in which a pregnant woman is responsible for the fetus she conceives as a result o f voluntary intercourse. Let us assume that we agree that you have a duty to care for your one-year-old son in such circumstances.36 It does not follow from this that you always have a duty to assist those for whom you are responsi­ ble in sense 1 and not sense 2. It follows only that you can sometimes have such a duty. This would indeed force a fu rth er revision in our claim. Now we cannot even say that harm ing another is necessary in order for you to have a duty to assist them in those cases where you are responsible for som eone only in sense 1. Even this revision, however, strong as it is, does not suffice to rescue the Negligence Version of the Responsibility Objection from the problem I have iden­ tified. T he objection, rem em ber, claims that nonrape cases are rele­ vantly different from rape cases because they differ in term s o f being responsible in sense 1; the objection is only forceful, then, if being responsible in sense 1 is, in and o f itself, enough to make the difference between owing support and not owing support. It must, that is, be a sufficient condition for owing support. But the fact (assuming that it is fact) that you can sometimes have a duty to care for someone you are responsible for only in sense 1 does not show that being responsible in sense 1 is in and o f itself sufficient to generate that duty. The argum ent presented above still shows that being responsible in sense 1 is not sufficient to generate this duty since it does not generate this duty in the case o f Im perfect Drug. If this is a duty you only sometimes have when you are responsible in sense 1 but not in sense 2, then it is sufficient only in conjunction with (and perhaps only because of) other considerations. And the burden would then be on the proponent of the objection to show that these other considerations obtain in the case o f pregnancy, and not ju st in the case o f the father of the oneyear-old. Otherwise, the claim that you have a duty to care for your one-year-old son for whom you are responsible in sense 1 but not 35. Ibid., p. 352. 36. Although it is worth noting that even this part of Langer’s argument is subject to doubt. After all, it does not follow from the claim that "child abandonment” is immoral that a parent has a duty to provide for his child’s needs. That would follow only if one also believed that a parent had a duty not to put this child up for adoption; but most people (especially, perhaps, opponents of abortion) believe that it is perfectly permissible for a parent to have someone else incur the costs of raising his child. So one might simply reply to Langer’s question by saying no, he does not have an obligation to care for his son’s needs. If he no longer wishes to be a parent, it is permissible for him to put his son up for adoption.

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sense 2 is perfectly com patible with the claim that being responsible in sense 1 is not sufficient to make the nonraped woman have a duty to assist the fetus she is carrying if the rape victim does not have such a duty. And, indeed, there is good reason to doubt that such a case could be made. For, in an ironic way, what seems plausible about the Tacit Consent Version seems to come back to h au n t the Negligence Version. After all, a plausible case can be made for saying that a m other (to switch back to the wom an’s perspective and keep the analogy tighter) who brings a baby to term and takes it hom e with h er has tacitly agreed to care for it. N othing that was said in criticism o f the Tacit C onsent Version o f the Responsibility Objection would count against this claim, since voluntarily bringing a baby hom e is voluntarily bringing about the state o f affairs in which the baby is under one’s care, while volunta­ rily having intercourse is only acting in a way which foreseeably may lead to the state of affairs in which there is a developing fetus in the womb. B ut if this is so, then we can account for Langer’s duty to his son w ithout conceding that responsibility in sense 1 is in itself sufficient to generate a duty to care. We can say that the m other (and father) of the one-year-old owe care to their child either because (a) such a duty follows from tacit consent alone which is reasonably inferred from bringing the child hom e after it is born but not merely from engaging in voluntary intercourse (in which case the fact that Langer is responsible for his son in sense 1 is entirely superfluous to account­ ing for his duty to care for him), or (b) such a duty follows from such consent only when it is conjoined with being responsible for the child in sense 1 (in which case the fact that he is responsible for his son in sense 1 is necessary but not sufficient). T h e first o f the two accounts seems far more plausible, since account b is difficult to square with the assum ption that the duty adoptive parents have to the children they adopt is the same as the duty biological parents have to their offspring.37 But choosing between the two is not necessary: on either of these accounts, the morally relevant distinction that explains why the parent o f a one-year-old son has a duty to care for him while the victim o f rape does not have a duty to care for her fetus would fail to distinguish the woman whose pregnancy arises from rape from the woman whose pregnancy arises from voluntary intercourse.38

37. Even if the "adoption” is really a kidnapping, as in the case where a woman steals a baby from the hospital and takes it home to raise as her own, we will still presumably believe that her duty to care for the infant is as strong as the duty of any parent to care for her child, and this would again favor account a over account b. 38. None of what is said in this paragraph, of course, implies or presupposes that a woman who declines to bring her newborn home has no duty to care for it at all. Suppose she gives birth in an abandoned field. One might hold the view that there are

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A final objection to my rebuttal o f the Negligence Version which merits attention is this:39 in attem pting to make the case for the claim that being responsible for another in sense 1 alone is not sufficient to distinguish rape cases from nonrape cases, I have followed the sort of example exploited by Silverstein, in which the doctor who is respon­ sible for the fact that her patient is still alive does not owe him addi­ tional assistance unless she is also responsible for the fact that the patient is dependent on her given that he is still alive. This is the claim, in short, that cases of voluntary intercourse which result in pregnancy are morally like Im perfect D rug rather than Malpractice. But it is open to som eone to agree that voluntary intercourse is like Im perfect D rug in this particular respect, but to insist that there is a m uch more im portant sense in which they differ and which undermines the analogy. In particular, one could argue as follows: in Im perfect Drug, the doctor is responsible for the patient’s existence because she did an act, namely, the act o f giving the patient the drug, which was done in response to the patient’s needs. B ut in /voluntary intercourse, the woman is responsible for the fetus’s existence not because she was acting in response to its needs (after all, the fetus didn’t exist at that point) but merely because she selfishly wanted to engage in a pleasur­ able activity.40 And one could claim that the doctor is free of further no positive duties to assist others, in which case one will hold that if she does not wish to raise the child herself she is morally free to walk away and leave the infant to die. But one need not hold this view. One could believe that there are positive duties to assist others at least in cases where the burden is relatively small and the benefit relatively great, and so hold that the woman would at least be obligated to incur the cost of carrying the child to town and providing for it until it could be taken to a hospital. But then she will have this obligation equally even if she comes across a newborn that someone else has abandoned in the field, so this will again fail to support the view that Thomson’s argument is undermined by the difference between the voluntariness of intercourse in nonrape cases and the involuntariness of kidnapping in the violinist case. And in addition, it will be unlikely to follow that a woman would be obligated to sustain her pregnancy since the burdens of pregnancy are not so trivial. Of course, one might endorse the existence of a positive duty to assist another who will otherwise die even where the burden to you in doing so is quite substantial, provided that (a) the benefit to the other still significantly outweighs the burden to you and (b) you are the only one who can save the individual. This would justify a duty to continue the pregnancy even granting that the burden is substantially greater than what we are typically required to undergo for the benefit of others. But then it will seem equally to follow that you are obligated to remain plugged into the violinist in Thomson’s story, since the benefit to the violinist significantly outweighs the burden to you and you are the only one who can save him. So even this view of positive rights will fail to undermine Thomson’s analogy. 39. I am grateful to Alec Walen for bringing this objection to my attention. 40. One might well complain here that the importance of a sexual relationship to living a well-lived life is trivialized by picturing the woman as merely pursuing physical pleasure. The assumption that such pleasure is all that can be involved is surely too narrow, but I want to assume for the sake of the argument that this really is all the woman (and her partner) are seeking, and to question what follows from this.

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responsibility not in virtue o f the fact that she is only responsible in sense 1, but in virtue of the way in which she is only responsible in sense 1. Because she was acting in the patient's interest, she has done all she is obligated to do for him, but because the woman who engages in voluntary intercourse was not acting in the fetus's interest, she has not yet done all she is obligated to do for the fetus. Indeed, she hasn't yet done anything for the fetus. Thus, one could agree ihat the doctor owes aid in Malpractice but not in Im perfect Drug, and also agree that the woman who engages in voluntary intercourse is responsible in sense 1 but not sense 2, but still conclude that she owes aid to the fetus in virtue o f her voluntary behavior while the doctor in Im perfect Drug does not. Let us assume that this difference in the agent's motivation under­ mines the analogy between pregnancies which arise from voluntary intercourse and the case of Im perfect D rug.41 I believe that the point of the analogy can be sustained by turning to a new analogy which parallels voluntary pregnancy more closely than,does Im perfect Drug. Indeed, this is a useful revision on its own, even if one does not think it a necessary one, because it reveals how easily even defenders of T hom son such as Silverstein can be led to im pute a greater degree of responsibility to the pregnant woman than the circumstances warrant. In particular, the altruistic doctor deliberately causes the patient to live longer by h er considerate act o f giving him the drug. But the pleasure-seeking woman does not deliberately cause the fetus to come into existence so that she can experience pleasure; she deliberately engages in intercourse so that she can experience pleasure with the recognition that a fetus may come into existence as a result. Silverstein’s case against the Negligence Version, then, by overlooking the distinction which underm ines the Tacit Consent Version, rests on an example which com pares the pregnant woman to one who is responsible in sense 1 in a more direct way than she really is. And if we reconstruct Silverstein's point with this distinction in mind, we can produce an analogy which avoids the potentially problem atic discrep­ ancy in motives. So instead, consider: Pleasure-Seeking Doctor: You are a doctor who wishes to engage in a very pleasurable activity. T he activity is such that if you engage in it, there is a good chance that it will cause some gas to be released which will result in adding extra years to the life o f some violinist in the world, who will then contract the familiar kidney ailm ent from which only you will be able to save him by

41. Though it is by no means obvious that this assumption should be accepted. We might well think that this simply reveals a difference in the moral merit of their characters but not a difference in the obligations which arise from their actions.

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the familiar means described above. T here are certain devices which you can use during the activity which reduce the chances of gas emission but do not eliminate them entirely, but you do not like the way the use of such devices “makes you feel” when you engage in the pleasurable activity. So you engage in the activity, and without such devices. As a result, there is a violinist who has some extra time added to his life and then gets the ailment. He now stands in need o f the use of your kidneys. In this case, you are responsible for the violinist in sense 1, but not in sense 2. You are in this respect like the woman whose pregnancy is the result o f voluntary intercourse. And in this case, unlike Im perfect Drug, you are responsible for the violinist’s existence at this point, not because you were admirably responding to his needs, but because his present existence was (foreseeably but not intentionally) caused by an act you engaged in ju st because it would be pleasurable. T he new example, then, eliminates the possibly relevant difference in motiva­ tions noted above. But now ask: Do you believe that you are obligated to provide the violinist with the use o f your body? This seems to me most implausible. Why should the fact that you have already added some years to his life m ean that you have to add more, ju st because your motive in perform ing the action that foreseeably added some years to his life was purely selfish? And if this is so, then my objection to the Negligence Version can be sustained even if one rejects the sort o f example with which Silverstein attem pts to press his. I conclude, therefore, that there are good reasons to reject both versions o f the Responsibility Objection and no good reasons to accept either. If T hom son’s argum ent is successful in rape cases, then it is successful in nonrape cases as well. W hether or not Thom son’s argu­ m ent is successful in rape cases in the first place, of course, is another question. I am inclined to believe that it is, but that will have to be the topic of another paper.42

42. Or two. See my “Death Comes for the Violinist” (unpublished), which responds to the objection that Thomson’s analogy is undermined either by the importance of the distincdon between killing and letting die or by the importance of the distinction be­ tween intending death and foreseeing it, and “A Further Defense of ‘A Defense of Abortion’” (unpublished) which responds to a number of additional objections, in­ cluding those which accept Thomson’s analogy but hold either that unplugging yourself from the violinist is not permissible or that arguments from such analogies are unsound.

N.B. An updated version o f this article has since been published in David Boonin, A Defense of Abortion, Cambridge University Press, 2002 .

[5] Thomson's Violinist and Conjoined Twins KENNETH EINAR HIMMA

It is com m only taken for granted that abortion is necessarily im permissible if the fetus is a person w ith a right to life. In her influential essay "A D efense of A bortion/'1 Judith Jarvis Thomson offers what I w ill call the violinist exam ple to show that merely having a right to life does not in and of itself give rise in the fetus to a right to use the mother's body. On Thomson's view, if the fetus has a right to use the m other's body that precludes terminating its life by means of an abortion, it is because the mother did som ething to give the fetus that right. Thus she concludes that the proposition that the fetus is a person does not im ply that abortion is morally impermissible. In this essay, I argue that Thomson's violinist example establishes the general point that the right to life in and of itself does not im ply a right to use another person's body, but not the more specific point that pertains to the relation betw een mother and fetus. In particular, I identify tw o morally significant differences betw een the case Thom son discusses in the violinist exam ple and the case of fetus and mother. Accordingly, I conclude that the violinist exam ple in and of itself does not refute the claim that if the fetus is a person w ith a right to life, then abortion is necessarily impermissible.2 Here is the exam ple that is supposed to do the work. Suppose you w ake up one morning to find that w ithout your consent you are connected to a machine that is also connected to a fam ous violinist. As it happens, the violinist has a kidney disease that w ill kill him unless you both remain connected to the machine for nine months. The question is whether you are morally obligated to remain connected to the machine. On Thomson's view, and m ost people agree, it is morally perm issible for you to disconnect yourself from the m achine— even though it w ill cause the death o f the violinist—because you did nothing to entitle the violinist to use your body:

[T]he fact that for continued life the violinist needs the continued use of your kidneys does not establish that he has a right to be given the continued use of your kidneys. He certainly has no right against you that you should give him continued use of your kidneys. For nobody has any right to use your kidneys unless you give him such a right—if you do allow him to go on using your kidneys, this is a kindness on your part, and not something he can claim from you as his due.3 Thomson concludes that "having a right to life does not guarantee having either a right to be given the use of or a right to be allow ed continued use of another person's b o d y —even if one needs it for life itself."4 If A has a right to use B's body, it is because B has done something to give A that right; in the

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Abortion Thomson's Violinist and Conjoined Twins absence of som e affirmative act on the part of B, A cannot acquire a right to use B's body. Whether abortion is permissible in any given instance, then, depends on whether the mother has done som ething to give the fetus a right to use her body. For example, Thomson argues that abortion is alw ays permissible in the case of rape because "in a case of pregnancy due to rape the mother has not given the unborn person a right to use of her body for food and shelter."5 But if abortion is permissible in the case of rape, then it follow s that merely becom ­ ing pregnant does not constitute an affirmative act that gives rise to a right on the part of the fetus to use the m other's body. Thus Thomson concludes, "the right to life w ill not serve the opponents of abortion in the very sim ple and clear w ay in which they seem to have thought it w ou ld ." 6 A lthough the violinist example certainly establishes that there are instances in w hich one person A has a right to life but does not have a right to use the body of another person B to save A's life, there is nothing particularly surpris­ ing about this claim. After all, the inability of one person to survive w ithout a new kidney in and of itself does not im ply an obligation on the part of som e other person to donate a kidney to save the life of the first. Indeed, you are no more obligated to remain plugged into the violinist than you are to donate one of your tw o healthy kidneys to the violinist. In either case, you w ould have to do som ething to give rise to a right on the part of the violinist to use your kidney—regardless of whether the violinist proposes to use your kidney w hile it remains in your body or after transplanted into hers. In any event, the violinist example tells us nothing about the perm issibility of abortion because there are morally significant differences betw een the case of you and the violinist and the case of mother and fetus. You and the violinist are two autonom ous agents w ho are independent in the sense that it is clear where the body of one begins and the body of another leaves off. For this reason, it is plausible to view the complex of rights each has regarding use of the other's body from what I w ill call a contractarian point of view. According to this point of view, autonom ous agents can enter into agreements w ith each other to create, modify, and extinguish obligations. For example, one autonom ous agent A can, by means of an agreement, create in another B a right to an object belonging to A to which B had no prior claim. Similarly, A and B can m odify or extinguish that right in B by means of a further agreement. Entering into an agreement is not the only w ay that independent, autono­ m ous agents can alter their moral positions under the contractarian m odel. Sometimes one such agent can create a right in another w ithout intending to do so. Suppose, for example, I negligently lead you to believe that I w ill take you to an important appointment and then do nothing w hile you lend your car to Sue on the strength of that belief. By allowing you to do so, I create in you a moral claim against me to a ride to that appointment. The idea here is that if I culpably allow you to rely to your detriment on an expectation that I w ill take you to the appointment, I thereby obligate m yself to take you there. On this view, culpable behavior that reasonably induces reliance gives rise to w hat the law describes as an im plied agreement. The contractarian7 m odel is certainly plausible as an account of h ow m any rights and obligations arise am ong independent, autonom ous agents (like you and the violinist), but its explanatory power is limited w ith respect to how rights and obligations arise am ong human beings w ho are not independent. 429

Abortion Kenneth Einar Himma Suppose, for exam ple, that a group of explorers on a new ly discovered island comes across a pair of conjoined twins, w hom the explorers name Joe and Tom. The tw ins appear to be 13 or 14 years old and have developed a rudim entary language that enables them to communicate w ith each other. Once the explor­ ers learn the language, they realize that each of the tw o is alert and intelligent. A doctor exam ines the tw o and discovers that they are joined in such a w ay that all of the vital organs fail w ithin the skeletal structure of Joe. On the basis of such observations, the doctor concludes that only Joe w ould survive a pro­ cedure to separate the twins, but that there is no need to separate them because they can live a long and healthy life joined together. When Joe com es to under­ stand the situation, he dem ands that the doctor separate them im mediately. Tom, quite understandably, objects. Intuitively, it w ou ld be morally wrong for the doctor—or anybody else for that matter (including Joe)—to separate the tw ins on the strength of Joe's request.8 Though joined together, Joe and Tom are distinct moral persons w ith distinct rights to life that apply not only against third parties, but also against each other. It is just as m uch a violation of Tom's right to life for Joe to kill Tom as it w ould be for a third party to kill Tom. Thus since it is know n that the tw o cannot be separated w ithout killing Tom and that the tw o can live a normal life span joined together, it w ould be w rong to separate them because doing so w ould violate Tom's right to life. But if it is im perm issible to separate the tw o, then it follow s, contra Thomson, that Tom has a right to use Joe's body despite the fact that Joe did nothing to give rise to such a right on the part of Tom. What seem s to distinguish this case from the case of you and the violinist is this: whereas you and the violinist are autonom ous and independent, Tom and Joe are not. Of course, Tom and Joe are autonom ous and thus capable of altering their moral positions relative to third parties by both express and im plied agreements. Because they are both autonom ous, Tom and Joe are per­ fectly capable, for exam ple, of entering into a morally binding agreem ent to dispose of w hatever property they hold. Likewise, they could incur an obliga­ tion by culpably inducing a third party to rely to her detriment on som e expectation involving Tom and Joe. Indeed, Tom and Joe can probably do as much as you and the violinist can in the w ay of altering their moral positions relative to third parties by w ay of im plied and express agreements. But there is one important sense in which the situation of Tom and Joe is different from the situation of you and the violinist that appears to lim it Tom's and Joe's contractual capacities in comparison to yours and the violinist's. Though Tom and Joe are each autonom ous, they are not physically indepen­ dent in the sense in w hich you and the violinist are. The moral and physical boundaries betw een your body and the violinist are clear; and for this reason, your and the violinist's contractual capacities relative to each other extend to being able to create, modify, and extinguish rights to use each other's body.9 In contrast, w hile the physical boundaries betw een Tom and Joe m ay be clear, the moral boundaries are not. Though there is a sense in w hich w e can characterize part of the physical entity constituting Tom and Joe as Tom's body and part as Joe's body, there is no clear moral sense in w hich part of that entity can be characterized as Joe's to dispose of as he pleases.10 N o other person, of course, can acquire a right to use Joe's or Tom's body unless Joe or Tom (possibly both) does som ething to give that other person a right, but even in such instances each w ould have to consider the effect on the 430

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Abortion Thomson's Violinist and Conjoined Twins other of granting such a right. Nevertheless, it is not true that Tom cannot acquire a right to use Joe's body unless Joe does som ething to give Tom such a right. Joe's moral claim on what is ostensibly his body relative to Tom is not strong enough to give rise to a right to dispose of it at Tom's expense. For this reason, Tom's and Joe's contractual capacities relative to each other do not extend to being able to create, modify, and extinguish rights to use each other's body. One might object that it is incorrect to characterize the physiological rela­ tionship betw een Joe and Tom as involving Tom's use of Joe's body. Since the twins are conjoined together in a fairly substantial way, it misdescribes the situation to characterize them as having two distinct bodies. One could not have a right to use the other's body because there is only one b o d y —and it belongs to both of them. This is not an objection that I find especially plausible, but it is easy to m odify the example so that Joe and Tom are joined in a far more tenuous way. Suppose that what has joined the two since birth is som e sort of cord extending from Tom's navel to Joe's navel so that it is clear that each has a separate body and that Tom is using Joe's body. Suppose, further, that all parties understand that cutting the cord w ill cause Tom's death but not Joe's. Despite the fact that w hat binds Joe and Tom is only slightly less tenuous than what binds you to the violinist in the original example, it w ould still be wrong to separate them. And if this is correct, then Tom's right to life gives rise to a right to use Joe's b o d y —even though Joe did nothing to give Tom that right. The case of fetus and mother is characterized by the same sort of physical interdependence that distinguishes the case of Joe and Tom from the violinist example. Joe and Tom never led physically independent lives because they came into existence joined together in an accidental but w holly natural w a y — though the occurrence of whatever happened to cause them to be joined w as highly improbable.11 Like Tom's physical dependence on Joe, there w as never a time in the fetus's life w hen it w as not ¡physically joined to its mother, for the fetus came into existence conjoined by a natural process to the mother. In contrast, you and the violinist led physically independent lives until som eone kidnapped you and artificially joined the tw o of you together. And as w e have seen, the contractarian m odel applies only to cases in w hich the relevant agents have a history of being physically independent. Part of the reason you do not ow e the violinist use of your body is that the tw o of you have led lives physically independent of each other. Clearly, one independent autonom ous being can acquire a right to use the body of another only if the latter does som ething to give the former that right. But this kind of analysis does not apply to Joe and Tom because their history of physical interdepen­ dence limits Joe's contractual capacity with respect to Tom's right to use Joe's body. Likewise, the history of physical interdependence of mother and fetus limits the m other's contractual capacity w ith respect to the fetus's right to use her body. The fetus has a right to use the mother's body (assuming, as Thom­ son does, that the fetus is a person) in virtue of the fetus's physical relation to the m other—just as Tom has a right to use Joe's body in virtue of his physical relation to Joe. Of course, there is a sense in which the case of the mother and fetus is different from the case of Joe and Tom. Joe and Tom came into the world together and have never led a separate existence. For this reason, it seem ed plausible that Joe's claim to his body did not include a moral entitlement to 431

Abortion Kenneth Einar Himma dispose of it as he pleases regardless of how it affects Tom. Like you and the violinist, the mother had an independent existence that did not include the fetus until the point in time w hen the fetus and mother became plugged together. Thus one might think that the mother's claim to her body includes a moral claim that entitles her to treat it as she sees fit—regardless of h ow such treatment affects the fetus. If so, then it follow s that the fetus has no claim to use the mother's body unless the mother does som ething to give it that claim, because the mother is independent of the fetus in a w ay that distinguishes her relation to the fetus from Joe's relation to Tom. N evertheless, it is im plausible to think that this difference betw een the tw o cases has such profound moral significance. Suppose that Joe came into the world w ithout Tom and lived as an independent person for an hour. After an hour, Tom sprouted, so to speak, from that part of Joe's body to w hich Tom w as thereafter joined. It hardly seem s plausible to think that the difference betw een coming into the world together and coming into the w orld one hour apart could possibly make any difference with respect to whether Tom needs express or im plied consent from Joe to use his body. In the case of pregnancy, of course, the mother has lived a life, m ade plans, and developed certain expectations about the future. And one might argue that this distinguishes the case of mother and fetus from the m odified case of Joe and Tom; it is unfair to the m other to require that an unplanned pregnancy frustrate her legitim ate expectations—or so the argument might go. Whether such an argument succeeds is an interesting question beyond the scope of this essay; the important point, for m y purposes, is that this kind of argument abandons Thomson's reliance on the contractarian m odel in favor of a different strategy that relies on considerations of fairness. This argument does not rely on the claim that it follow s from the m other's history of physical independence that the fetus has no right to use the mother's body unless she does som ething to give the fetus that right. Rather, it looks beyond that history to cite the unfairness of frustrating the mother's substantive expectations that were developed over a lifetime and paid for w ith sacrifices along the way. Whatever the merits of this line of reasoning (under the assum ption that the fetus is a person), it is not the line that Thomson pursues. In any event, there is a more important difference betw een the tw o cases that precludes the application of the contractarian m odel to the case o f mother and fetus. As w e have seen, where the contractarian m odel applies, one person cannot acquire a right to use another's body in the absence of som e express or im plied agreement giving the former that right. But it is crucial to realize this m odel applies only w hen all the relevant parties are autonom ous agents capa­ ble of incurring obligations. For tw o agents to alter their moral positions rela­ tive to each other, they must each, obviously enough, have a moral position relative to the other that consists in terms of rights. Of course, rights are alw ays against particular agents; they do not, so to speak, float around in logical space unanchored to individuals. To say, then, that one person X has a right to be free of physical battery is to say that X has that right against each member of som e class of beings. And to say that X has a right against Y to be free of physical battery is, roughly, to say three things:

1) Other things being equal, Y is morally obligated to refrain from com m it­ ting physical batteries against X; 432

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Abortion Thomson's Violinist and Conjoined Twins 2 ) Other things being equal, Y is morally obligated to com pensate X for any

physical batteries Y commits against X; and 3 ) Other things being equal, it is morally permissible for X to perform certain

acts that w ou ld otherwise be impermissible if necessary to prevent Y from violating Y's obligation not to commit physical batteries against X.12 To say that X has a right against Y is thus necessarily to presuppose that Y is an autonomous moral agent in the sense that Y is capable of having moral obligations. Accordingly, the contractarian m odel of how beings can alter their moral positions against each other presupposes that each is capable of having moral obligations. In general, a being must satisfy tw o conditions in order to be a moral agent capable of having moral obligations. First, the being must know the difference betw een right and w rong in the sense that it understands certain basic moral principles that distinguish morally acceptable from morally unacceptable behav­ ior. For example, dogs are incapable of incurring moral obligations because they do not possess sufficient abilities to grasp the abstract concepts of right and wrong. Second, the being m ust possess the ability to conform its behavior to the requirements of the relevant basic moral principles. A being that lacks this ability is incapable of having moral obligations even if it understands the notions of right and wrong, as w ell as the basic moral principles. Each of these tw o requirements is a necessary condition for having moral obligations. You and the violinist are both capable of incurring obligations because you both satisfy all of the conditions for moral agency; as a consequence, each of you has a moral position against the other. You have a right to control your body that applies against the violinist in the sense that the violinist has a moral obligation not to interfere, other things being equal, w ith your ability to control your body. For her part, the violinist has a right to life against you that consists in your having an obligation, other things being equal, not to take affirmative steps to terminate the violinist's life.13 Thomson's application of the contrac­ tarian m odel to the violinist example is appropriate only because you and the violinist are full moral agents w ho have moral positions against each other. Although you and the violinist are both moral agents capable of incurring obligations, the fetus is not because it lacks both of the above characteristics. N otice that this is true even under the assumption that the fetus is a moral person w ith a right to life, among other rights. Being the sort of being that has rights does not im ply being the sort of being that has obligations; persons w ho are clinically insane or severely brain damaged and hence incapable of appreciating the difference betw een right and w rong continue to hold basic rights against other people. It w ould obviously be wrong, for' example, to euthanize severely brain-damaged persons in order to reduce the cost to the public of caring for them. But if the fetus is not a moral agent, then it follow s that the mother does n o t—indeed, cannot—have any claims against the fetus. The mother's right to control her body is a right that she has against me, you, the violinist, Joe, and Tom, but it is not a right that she has against the fetus—any more than it is a right that she has against a bear, plant, or rock—because the fetus is not capable of incurring obligations. A s w e have seen, the claim that one being X has a right against another being Y im plies that Y is under an obligation of som e kind. Since the fetus is incapable of having any obligations, it follow s that no 433

Abortion Kenneth Einar Himma being, including the mother, has any rights against the fetus. Thus w hile the mother has a right to control her ow n body that operates against a very large number of individuals, the fetus is not one of them. Insofar as this is correct, the contractarian m odel that Thomson applies in the violinist example has no application w ith respect to the case of mother and fetus. For if the fetus ow es no obligations to the mother because the fetus is not capable of having obligations, then a fortiori it ow es no obligation to the mother to refrain from using the mother's body unless the mother does som e­ thing to entitle the fetus to use her body. A s w e have seen, the contractarian m odel applies only to cases in w hich all of the relevant parties are moral agents. Accordingly, the violinist example is morally distinguishable from the case of mother and fetus and hence provides no insight w hatsoever into the question of whether abortion is permissible on the assum ption that the fetus is a person. In response, one m ight object that this line of argument falsely im plies that abortion is im permissible even if the fetus is not a person. According to this objection, even if the fetus is not a person what w ould have to justify abortion is reference to som e kind of right on the part of the mother, such as the right to control one's body or the right of self-defense. If the mother has no rights against the fetus, then there can be no justification for abortion, even if it turns out that the fetus is not a person. And any argument that has this counterin­ tuitive result must be flawed. The problem w ith this objection is that its underlying assum ption that any justification for abortion m ust make reference to rights is false. N o rights-based justification is necessary to explain why, for example, it is perm issible to kill a poisonous w eed grow ing in a garden. What makes the killing of a poisonous w eed permissible is not the right of self-defense or any other kind of right; what makes it perm issible is that w eed s have little or no moral standing.14 It is morally permissible to end the life of a being that lacks moral standing—as long as ending that being's life does not violate the rights of som e other b eing15—because no obligations can be ow ed to such a being to refrain from ending its life. If there is no obligation to refrain from killing a being, then no special justification making reference to rights is needed to perm issibly kill that being. If the fetus has no moral standing whatsoever because it is not a person, then abortion need not be justified in terms of som e right on the part of the mother.16 In this essay, I have argued that there are two differences betw een the v io ­ linist example and the case of mother and fetus that preclude the application of Thomson's contractarian m odel to the case of mother and fetus. First, I have argued that the contractarian m odel applies only to cases where the relevant parties have a history of physical independence. For this reason, w hile the contractarian m odel applies to the violinist example, it does not apply to the case of mother and fetus. Second, I have argued that the contractarian m odel applies only to cases w here the relevant parties are all autonom ous moral agents capable of incurring moral obligations. Although you and violinist are moral agents, the fetus is n o t—and this fact about the fetus precludes the application of the contractarian m odel to the case of mother and fetus. Accord­ ingly, Thomson's violinist exam ple tells us nothing about whether abortion is permissible assum ing the fetus is a person.

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Abortion Commentary on Thomson's Violinist and Conjoined Twins N otes 1. Thomson JJ. A defense of abortion. Philosophy and Public Affairs 1971;l(l):47-66. 2. In this essay I do not take a position with respect to either the question of whether the fetus is a person or the question whether abortion is permissible. 3. See note 1, Thomson 1971:55. 4. See note 1, Thomson 1971:56. 5. See note 1, Thomson 1971:57. 6. See note 1, Thomson 1971:56. 7. I am using "contractarian model" to refer only to the ways in which obligations can be created, modified, and extinguished by means of implied and express agreements. It should not be construed as referring to any general moral theory. 8. The reader who anticipates where this is going may worry that I have loaded the deck by stipulating that the twins are 13 or 14 years of age. Many people would find it less objection­ able to separate younger conjoined twins than to separate older conjoined twins. Now I am not sure how one can justify the distinction apart from saying somehow that the younger twins have less of a right to life than the older twins. In any event, my rationale for considering an older pair of twins is that I wanted a clear case in which the twins had a full right to life. The anti-abortion position that Thomson is seeking to evaluate assumes that from the moment of conception the fetus has a full right to life that is equal to that of any adult. I have deliberately structured the example so that there would be no doubt that the twins have such a right. 9. Of course, there are limits on what you and the violinist can do in the way of creating rights to use of the other's body. Consent to allow one to use one's body is necessary, but probably not sufficient, to create a moral right in another person to do so. Thus, for example, one might think that prostitution is wrong even if the sexual transactions are mutually and meaningfully consensual. 10. For example, it would be wrong for Joe to cut off a finger if doing so would result in his and Tom's death, in part because it would result in Tom's death. Such an act appears to involve both suicide and homicide. 11. Nevertheless, it is important to emphasize here that it is not merely the fact that the two were joined in a natural way that accounts for why it would be wrong to separate the conjoined twins. If by some improbable but wholly natural accident you and the violinist came to be joined together, it would still be permissible for you to disconnect yourself from the violinist because up to the moment of the accident you and the violinist led physically independent lives. 12. This is just the Hohfeldian view of rights that Thomson defends elsewhere. See Thomson JJ. The Realm of Rights. Cambridge, Massachusetts: Harvard University Press, 1990. 13. Thomson, of course, would point out that unplugging the violinist does not violate the violin­ ist's right to life because other things are not equal. As we have seen, Thomson convincingly argues that the violinist's right to life does not imply a right on her part to use of your body. 14. To say that a being X has moral standing is to say that it has morally significant interests that must be considered in deliberations involving X. A being that has rights clearly has moral standing. It may also be possible for beings that lack rights to have moral standing. For example, Peter Singer believes that animals have moral standing but not moral rights. See Singer P. Animal Liberation. New York: Avon Books, 1977. Nothing of importance in my argu­ ment turns on this issue. 15. For example, it would be wrong for me to kill weeds growing on my neighbor's property without her permission. 16. Of course, it might be that the fetus has some moral standing, perhaps in virtue of being a potential person, even though it does not have any rights. See note 14.

Commentary John K. Davis Judith Thomson argues that a fetus may have a right to life yet lack the right to

use its mother's body to stay alive. According to Kenneth Einar Himma, Thomson's argument applies only to cases where the parties meet tw o con­ ditions. First, they must "have a h is­ tory of physical independence" and,

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Abortion John K. Davis second, they m ust be "autonom ous moral agents, capable of incurring obli­ gations." Himma devises a case involv­ ing conjoined tw ins to sh ow w h y the m other-fetus case does not m eet these conditions. I shall raise two concerns for Himma. First, I argue that Him m a's conjoined tw ins case does not turn on "physical independence" but on other factors and therefore the lack of "physical indepen­ dence" in the mother-fetus case does not defeat Thomson's argument. Second, I argue that one can have rights against a being w ho lacks the capacity to incur obligations and therefore a mother can have rights against her fetus.1 First Difference: Physical Interdependence

part of the conjoined body, if you will). Because there w as never a time w hen any part of the body w as exclusively his and not Tom's, there is nothing he has a right to take back from Tom. Him m a argues that this concept of physical interdependence is the explan­ atory factor in the conjoined tw ins ca se—the factor w hich explains the reader's moral judgm ent that Joe has no right to separation. I w ill introduce a m odified version of the conjoined tw ins case and w alk the reader through four possible judg­ ments one m ay make concerning both versions. I believe the fourth and m ost likely response to both versions of this case leads the reader to reject physical interdependence as the explanatory fac­ tor. I w ill discuss one initially attractive but ultim ately unsuccessful explana­ tion for the fourth judgm ent, and then discuss a better explanation for the fourth judgm ent.

Himma's argument concerning ph ysi­ cal independence is grounded in the case of conjoined tw ins nam ed Joe and Tom. All the vital organs are in Joe's skeletal structure and Joe w ants to be M od ified Version o f the separated. That w ill kill Tom, w h o objects. We are to conclude that sepa­ C onjoined Tw ins Case rating them is wrong. Himma argues In the m odified version the tw ins are that because Joe and Tom are not phys­ connected in the sam e way, but n ow ically independent "there is no clear Tom has a localized and progressive moral sense in which part of that entity dem entia that makes death attractive is Joe's to dispose of as he pleases." to him and he w ants to be separated For Joe to have a right to separation at in order to die. Joe op p oses separation the expense of Tom's life, Joe must have because he fears and w ishes to delay a right to the exclusive use of som e­ his p sychological adjustm ent to life thing to w hich Tom does not have a apart from Tom. Is it perm issible to right. Normally, one has an exclusive separate them at Tom's request and right to the use o f one's body. H o w ­ over Joe's objection? ever, Joe and Tom do not have such rights, for they are "physically inter­ First judgment: Neither Joe or dependent" (em phasis added). Tom has a right to separation "Physical interdependence" does not mean sharing a single body.2 Rather, Setting aside concerns about physician"physical interdependence" is a func­ assisted suicide, if physical interdepen­ tion of history: there w as never a time dence means that Joe has no right to w hen Joe and Tom both existed and separation, then it m eans Tom has were physically separate, so there w as no such right either. The first judg­ never a time w hen Joe had exclusive m ent is that neither tw in has a right to rights to the use of "his" body (or "his" separation. 436

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Abortion Commentary on Thomson's Violinist and Conjoined Twins Second judgment: Tom has a right to separation D oes that sound right? If the reader insists it does, fair enough, but I sus­ pect it sounds w rong to most people. Why shouldn't Tom have a right to separation? Surely his interest in selfdetermination outw eighs Joe's interest in emotional security, at least on these facts. If this is right, then physical inter­ dependence does not do the work in the conjoined twins case, for the twins are physically interdependent in both the original and m odified cases, yet Tom has a right to separation. There­ fore, if Joe has no right to separation, it cannot be physical interdependence that prevents him from having that right, for physical interdependence does not prevent Tom from having that right. The second judgment says that Tom has a right to separation but leaves open whether Joe has a right to separa­ tion. This judgment is compatible with (and included within) both the third and the fourth judgm ents below, but they are not compatible with each other.

Third judgment: Both Tom and foe have a right to separation If physical interdependence does not prevent Tom from having a right to be separate, then it does not prevent Joe from having a right to be separate either. At this point the reader may make the third judgm ent and con­ clude that both Tom and Joe have a right to separation.

Fourth judgment: Tom has a right to separation but Joe does not3 Then again, th£ reader may make the fourth judgment and conclude that Tom has a right to separation but, nonethe­ less, Joe does not. I believe this is prob­ ably the most popular judgm ent about both versions of the conjoined twins

cases, but to back it up one m ust explain w hy Tom has this right and Joe d oes not. P hysical in terd ep en ­ dence does not im ply that conclusion, for they are both physically interdepen­ dent. Some other factor m ust account for this asymmetry.

First explanation of the fourth judg­ ment. One may be tempted to say that Tom has a right to separation because separating w ill not kill Joe, w hile Joe has no right to separation because sep­ arating w ill kill Tom. This explanation works, but it im plies that the victim in Thomson's violinist exam ple has no right to unplug himself and walk away from the dying violinist. The reader is welcom e to endorse this explanation, but I believe that few can reconcile themselves to the judgm ent that the victim has no right to separation from the violinist. For the majority of read­ ers another explanation is needed.

Second explanation of the fourth judg­ ment. A second, better explanation for w hy Tom has the right to be separated from Joe but not vice versa is that they share a single body. This explanation has two parts. First, it m ust be show n that the conjoined twins do share a single b o d y —w hich H im m a denies. Second, it must be show n that their sharing a single body is the factor that explains w hy Tom has a right to sep ­ aration but Joe does not. I believe it is plausible to see the conjoined twins as sharing a single body. Granted, physical interdepen­ dence is not a matter of sharing a sin­ gle body, but that does not mean that physically interdependent peop\e-cannot share a single body. Whether the conjoined twins share one may ulti­ mately be a matter of judgment, but if they do not, who does? They live on the same vital organs, and, as I under­ stand the case, have partially m erged torsos and one pair of legs.4 437

Abortion John K. Davis If the conjoined tw ins do share a sin­ gle body, that explains w h y Tom has a right to separation but Joe does not. Separation involves splitting a body to w hich more than one person has a proprietary claim. What settles whether to split a body in w hich both Joe and Tom have a claim? We cannot do what both people want done w ith that body, therefore w e decide between their equal claims to that body by w eighing their other rights and interests: Tom's right to die may, in the right circumstances, be w eightier than Joe's right to avoid em otional upheaval at Tom's death. Joe's right to self-determination, h ow ­ ever, is less w eighty than Tom's right to life. That is what accounts for the asymmetry in the fourth judgment. One may object that the victim's right to self-determination w as less w eighty than the violinist's right to life, yet the victim had a right to separate. H ow ­ ever, Joe is different from the victim for Joe cannot exercise his right to selfdetermination without cutting up what is also Tom's body—he is trying to exer­ cise his right of self-determination over something that belongs equally to Tom. Because their rights are being exer­ cised over a body to w hich they have equal claims, their claims must be adju­ dicated by w eighing their rights and interests. The right of self-determination is not normally w eighed in this m an­ ner, but shared body cases are special— normally one determ ines one's ow n b odily self and not som eone else's bodily self as well. If you conclude that th ey h ave a single, shared body in the conjoined case and you are persuaded that that is the explanatory factor, then you m ust con­ clude that Joe has a right to be sep a­ rated from Tom w hen they do not share a single body, as in the corded case. (This also explains the violinist example.) Him m a denies that the conjoined twins share a single body, but his argu­ ment does not turn on persuading oth­ 438

ers to see the conjoined case that way, for he also claims to show that Joe has no right to separation in cases where everyone w o u ld agree they d o not share a single body. For example, w hen Joe and Tom are connected by som e­ thing like an umbilical cord (with all the vital organs in Joe), they have sep ­ arate bodies but still Joe has no right to be separated at the expense of Tom's life. Joe has no such right because he and Tom are physically interdepen­ dent even in the corded case. However, the reader w ho judges that Tom has a right to separation in the m odified conjoined case m ust reject physical interdependence as the explan­ atory factor in the original conjoined case. Such readers have no reason to agree with Himma that Joe has no right to separation in the corded case. To summarize, the reader w ho judges that Tom has a right to be separated w hen he and Tom are conjoined, but that Joe has no such right, m ust reach two conclusions. First, Joe has a right to be separated at the expense of Tom's life w hen they are corded but not w hen they are joined. Second, Tom has a right to be separated whether they are joined or corded, for Tom's exercise o f that right does not kill Joe either way. Applied to the mother and fetus this means that the mother has a right to separate herself from the fetus, for their bodies are separate and connected by a cord. If she shared a single body w ith the fetus, she w ould lose that right (though the fetus w ould not, provided the fetus could separate w ithout kill­ ing the mother). However, on the usual reading of mothers and fetuses, their bodies are separate and not shared: another kind of corded case. Yet as Himma notes, the conjoined twins case differs from m other-fetus cases in that Joe and Tom w ere alw ays connected, while there w as a time w hen the mother w as separate. Som e read­ ers might object to Him m a's argument

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Abortion Commentary on Thomson's Violinist and Conjoined Twins b y distinguishing the conjoined twins case from the m other-fetus case on this basis. Himma says such distinctions assume a false premise: that because the mother once w as separate she has rights against the fetus. Second D ifference: The Fetus Cannot Incur Moral O bligations Himma argues that a mother does not have rights against her fetus. On Him ­ ma's definition of moral agency, the fetus is not a moral agent and there­ fore cannot have moral obligations. On Thomson's view of rights one can­ not have rights against a being w ho cannot have obligations. Therefore, a mother does not have rights against her fetus any more than she has rights against w eeds in her yard. But consider the case of an endan­ gered species of elephant. The ele­ phant, like the fetus, lacks moral agency but still has a right to life: w e cannot kill one just because w e feel like it. N ow suppose the elephant feels like killing us, or that it threatens to tram­ ple a valuable store of grain. If killing the elephant is our only means of pro­ tection, can't w e kill it? And don't w e justify our actions in terms of our right to protect important interests? It seem s that the same justification for protect­ ing our important interests against the elephant also applies to the mother and her fetus. It seem s natural to speak of these concerns in terms of a right to protect our interests.

Himma may respond that although this seem s reasonable, T h om son 's theory of rights is Hohfeldian: one can only have rights against a being w ho can have obligations. This may be true of Thomson's theory of rights, but there are other theories of rights w ith­ out this lim itation. The issu e con­ cerns not Thomson's view of rights but whether, on the correct theory of rights, a mother can have a right to separate from her fetus at the cost of its life. The elephant case illustrates the plausibility of a non-H ohfeldian theory of rights.

N otes 1. I am strongly indebted to Paul A. Glezen for his critical comments. In particular, the argu­ ments concerning a mother's rights against her fetus originated with Paul, for which I thank him. 2. Though all people who share a single body are physically interdependent, not all people who are physically interdependent share a single body. 3. There is a another possible judgment—that Joe has a right to separation but Tom does not. That judgment is so implausible that I will not discuss it. 4. Readers who disagree that the twins share a single body but nonetheless endorse the fourth judgment must find a third explanation for that judgment, and if they do, it cannot be based on physical interdependence. If it is not, then it may not apply to the motherfetus case.

Ken Himma responds in the next issue of CQ.

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[6] The Moral Significance of Birth MARY ANNE WARREN

Does birth make a difference to the moral rights of the fetus/infant? Should it make a difference to its legal rights? Most contemporary philosophers believe that birth cannot make a difference to moral rights. If this is true, then it becomes difficult to justify either a moral or a legal distinction between late abortion and infanticide. I argue that the view that birth is irrelevant to moral rights rests upon two highly questionable assumptions about the theoretical foundations of moral rights. If we reject these assumptions, then we are free to take account of the contrasting biological and social relationships that make even relatively late abor­ tion morally different from infanticide.

English common law treats the moment of live birth as the point at which a legal person comes into existence. Although abortion has often been pro­ hibited, it has almost never been classified as homicide. In contrast, infanti­ cide generally is classified as a form of homicide, even where (as in England) there are statutes designed to mitigate the severity of the crime in certain cases. But many people—including some feminists—now favor the extension of equal legal rights to some or all fetuses (S. Callahan 1984, 1986). The extension of legal personhood to fetuses would not only threaten women’s right to choose abortion, but also undermine other fundamental rights. I will argue that because of these dangers, birth remains the most appropriate place to mark the existence of a new legal person. S peakin g

of

R ig h ts

In making this case, I find it useful to speak of moral as well as legal rights. Although not all legal rights can be grounded in moral rights, the right to life can plausibly be so construed. This approach is controversial. Some feminist philosophers have been critical of moral analyses based upon rights. Carol Gilligan (1982), Nell Noddings (1984), and others have argued that women tend to take a different approach to morality, one that emphasizes care and responsibility in interpersonal relationships rather than abstract rules, princi­ ples, or conflicts of rights. I would argue, however, that moral rights are complementary to a feminist ethics of care and responsibility, not incon-

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sistent or competitive with it. Whereas caring relationships can provide a moral ideal, respect for rights provides a moral floor—a minimum protec­ tion for individuals which remains morally binding even where appropriate caring relationships are absent or have broken down (Manning 1988). Furthermore, as I shall argue, social relationships are part of the foundation of moral rights. Some feminist philosophers have suggested that the very concept of a moral right may be inconsistent with the social nature of persons. Elizabeth Wolgast (1987, 41-42) argues convincingly that this concept has developed within an atomistic model of the social world, in which persons are depicted as self-sufficient and exclusively self-interested individuals whose relation­ ships with one another are essentially competitive. As Wolgast notes, such an atomistic model is particularly inappropriate in the context of pregnancy, birth, and parental responsibility. Moreover, recent feminist research has greatly expanded our awareness of the historical, religious, sociological, and political forces that shape contemporary struggles over reproductive rights, further underscoring the need for approaches to moral theory that can take account of such social realities (Harrison 1983; Luker 1984; Petchesky 1984). But is the concept of a moral right necessarily incompatible with the social nature of human beings? Rights are indeed individualistic, in that they can be ascribed to individuals, as well as to groups. But respect for moral rights need not be based upon an excessively individualistic view of human nature. A more socially perceptive account of moral rights is possible, provided that we reject two common assumptions about the theoretical foundations of moral rights. These assumptions are widely accepted by mainstream philo­ sophers, but rarely stated and still more rarely defended. The first is what I shall call the intrinsic-properties assumption. This is the view that the only facts that can justify the ascription of basic moral rights1 or moral standing2 to individuals are facts about the intrinsic properties of those individuals. Philosophers who accept this view disagree about which of the intrinsic properties of individuals are relevant to the ascription of rights. They agree, however, that relational properties—such as being loved, or being part of a social community or biological ecosystem—cannot be relevant. The second is what 1 shall call the single-criterion assumption. This is the view that there is some single property, the presence or absence of which divides the world into those things which have moral rights or moral standing, and those things which do not. Christopher Stone (1987) locates this assumption within a more general theoretical approach, which he calls " moral monism.” Moral monists believe that the goal of moral philosophy is the production of a coherent set of principles, sufficient to provide definitive answers to all possible moral dilemmas. Among these principles, the monist

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typically assumes, will be one that identifies some key property which is such that, *Those beings that possess the key property count morally . . . [while those] things that lack it are all utterly irrelevant, except as resources for the benefit of those things that do count” (1987, 13). Together, the intrinsic-properties and single-criterion assumptions pre­ clude any adequate account of the social foundations of moral rights. The intrinsic-properties assumption requires us to regard all personal or other relationships among individuals or groups as wholly irrelevant to basic moral rights. The single-criterion assumption requires us to deny that there can be a variety of sound reasons for ascribing moral rights, and a variety of things and beings to which some rights may appropriately be ascribed. Both assumptions are inimical to a feminist approach to moral theory, as well as to approaches that are less anthropocentric and more environmentally ade­ quate. The prevalence of these assumptions helps to explain why few main­ stream philosophers believe that birth can in any way alter the infant’s moral rights. T he D enial

o f th e

M o r a l S ig n ific a n c e

of

Bir th

The view that birth is irrelevant to moral rights is shared by philosophers on all points of the spectrum of moral views about abortion. For the most conservative, birth adds nothing to the infant’s moral rights, since all of those rights have been present since conception. Moderates hold that the fetus acquires an equal right to life at some point after conception but before birth. The most popular candidates for this point of moral demarcation are (1) the stage at which the fetus becomes viable (i.e., capable of surviving outside the womb, with or without medical assistance), and (2) the stage at which it becomes sentient (i.e., capable of having experiences, including that of pain). For those who hold a view of this sort, both infanticide and abortion at any time past the critical stage are forms of homicide, and there is little reason to distinguish between them either morally or legally. Finally, liberals hold that even relatively late abortion is sometimes morally acceptable, and that at no time is abortion the moral equivalent of homicide. However, few liberals wish to hold that infanticide is not—at least sometimes—morally comparable to homicide. Consequently, the presump­ tion that being born makes no difference to one’s moral rights creates prob­ lems for the liberal view of abortion. Unless the liberal can establish some grounds for a general moral distinction between late abortion and early infanticide, she must either retreat to a moderate position on abortion, or else conclude that infanticide is not so bad after all. To those who accept the intrinsic-properties assumption, birth can make little difference to the moral standing of the fetus/infant. For birth does not seem to alter any intrinsic property that could reasonably be linked to the

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possession of a strong right to life. Newborn infants have very nearly the same intrinsic properties as do fetuses shortly before birth. They have, as L. W. Sumner (1983, 53) says, "the same size, shape, internal constitution, species membership, capacities, level of consciousness, and so forth.”3 Consequently, Sumner says, infanticide cannot be morally very different from late abortion. In his words, "Birth is a shallow and arbitrary criterion of moral standing, and there appears to be no way of connecting it to a deeper account” (52). Sumner holds that the only valid criterion of moral standing is the capacity for sentience (136). Prenatal neurophysiology and behavior suggest that human fetuses begin to have rudimentary sensory experiences at some time during the second trimester of pregnancy. Thus, Sumner concludes that abortion should be permitted during the first trimester but not thereafter, except in special circumstances (152).4 Michael Tooley (1983) agrees that birth can make no difference to moral standing. However, rather than rejecting the liberal view of abortion, Tooley boldly claims that neither late abortion nor early infanticide is seriously wrong. He argues that an entity cannot have a strong right to life unless it is capable of desiring its own continued existence. To be capable of such a desire, he argues, a being must have a concept of itself as a continuing subject of conscious experience. Having such a concept is a central part of what it is to be a person, and thus the kind of being that has strong moral rights (41). Fetuses certainly lack such a concept, as do infants during the first few months of their lives. Thus, Tooley concludes, neither fetuses nor newborn infants have a strong right to life, and neither abortion nor infanticide is an intrinsic moral wrong. These two theories are worth examining, not only because they illustrate the difficulties generated by the intrinsic-properties and single-criterion assumptions, but also because each includes valid insights that need to be integrated into a more comprehensive account. Both Sumner and Tooley are partially right. Unlike "genetic humanity”—a property possessed by fertil­ ized human ova—sentience and self-awareness are properties that have some general relevance to what we may owe another being in the way of respect and protection. However, neither the sentience criterion nor the self-aware­ ness criterion can explain the moral significance of birth. T he S entience C r iter io n

Both newborn infants and late-term fetuses show clear signs of sentience. For instance, they are apparently capable of having visual experiences. Infants will often turn away from bright lights, and those who have done intrauterine photography have sometimes observed a similar reaction in the late-term fetus when bright lights are introduced in its vicinity. Both may

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respond to loud noises, voices, or other sounds, so both can probably have auditory experiences. They are evidently also responsive to touch, taste, motion, and other kinds of sensory stimulation. The sentience of infants and late-term fetuses makes a difference to how they should be treated, by contrast with fertilized ova or first-trimester fetuses. Sentient beings are usually capable of experiencing painful as well as pleasurable or affectively neutral sensations.5 While the capacity to exper­ ience pain is valuable to an organism, pain is by definition an intrinsically unpleasant experience. Thus, sentient beings may plausibly be said to have a moral right not to be deliberately subjected to pain in the absence of any compelling reason. For those who prefer not to speak of rights, it is still plausible that a capacity for sentience gives an entity some moral standing. It may, for instance, require that its interests be given some consideration in utilitarian calculations, or that it be treated as an end and never merely as a means. But it is not clear that sentience is a sufficient condition for moral equality, since there are many clearly-sentient creatures (e.g., mice) to which most of us would not be prepared to ascribe equal moral standing. Sumner examines the implications of the sentience criterion primarily in the context of abortion. Given his belief that some compromise is essential between the conservative and liberal viewpoints on abortion, the sentience criterion recommends itself as a means of drawing a moral distinction between early abortion and late abortion. It is, in some ways, a more defensible criterion than fetal viability. The 1973 Roe v. Wade decision treats the presumed viability of thirdtrimester fetuses as a basis for permitting states to restrict abortion rights in order to protect fetal life in the third trimester, but not earlier. Yet viability is relative, among other things, to the medical care available to the pregnant woman and her infant. Increasingly sophisticated neonatal intensive care has made it possible to save many more premature infants than before, thus altering the average age of viability. Someday it may be possible to keep even first-trimester fetuses alive and developing normally outside the womb. The viability criterion seems to imply that the advent of total ectogenesis (artificial gestation from conception to birth) would automatically eliminate women’s right to abortion, even in the earliest stages of preg­ nancy. At the very least, it must imply that as many aborted fetuses as possible should be kept alive through artificial gestation. But the mere technological possibility of providing artificial wombs for huge numbers of human fetuses could not establish such a moral obligation. A massive commitment to ectogenesis would probably be ruinously expensive, and might prove contrary to the interests of parents and children. The viability criterion forces us to make a hazardous leap from the technologically possible to the morally mandatory.

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The sentience criterion at first appears more promising as a means of defending a moderate view of abortion. It provides an intuitively plausible distinction between early and late abortion. Unlike the viability criterion, it is unlikely to be undermined by new biomedical technologies. Further investigation of fetal neurophysiology and behavior might refute the presumption that fetuses begin to be capable of sentience at some point in the second trimester. Perhaps this development occurs slightly earlier or slightly later than present evidence suggests. (It is unlikely to be much earlier or much later.) However, that is a consequence that those who hold a moderate position on abortion could live with; so long as the line could still be drawn with some degree of confidence, they need not insist that it be drawn exactly where Sumner suggests. But closer inspection reveals that the sentience criterion will not yield the result that Sumner wants. His position vacillates between two versions of the sentience criterion, neither of which can adequately support his moderate view of abortion. The strong version of the sentience criterion treats sentience as a sufficient condition for having full and equal moral standing. The weak version treats sentience as sufficient for having some moral standing, but not necessarily full and equal moral standing. Sumner’s claim that sentient fetuses have the same moral standing as older human beings clearly requires the strong version of the sentience criterion. On this theory, any being which has even minimal capacities for sensory experience is the moral equal of any person. If we accept this theory, then we must conclude that not only is late abortion the moral equivalent of homicide, but so is the killing of such sentient nonhuman beings as mice. Sumner evidently does not wish to accept this further conclusion, for he also says that " sentience admits of degrees . . . [a fact that] enables us to employ it both as an inclusion criterion and as a comparison criterion of moral standing” (144). In other words, all sentient beings have some moral standing, but beings that are more highly sentient have greater moral standing than do less highly sentient beings. This weaker version of the sentience criterion leaves room for a distinction between the moral standing of mice and that of sentient humans—provided, that is, that mice can be shown to be less highly sentient. However, it will not support the moral equality of late-term fetuses, since the relatively undeveloped condition of fetal brains almost certainly means that fetuses are less highly sentient than older human beings. A similar dilemma haunts those who use the sentience criterion to argue for the moral equality of nonhuman animals. Some animal liberationists hold that all sentient beings are morally equal, regardless of species. For instance, Peter Singer (1981, 111) maintains that all sentient beings are entitled to equal consideration for their comparably important interests. Animal liberationists are primarily concerned to argue for the moral equality

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of vertebrate animals, such as mammals, birds, reptiles and fish. In this project, the sentience criterion serves them less well than they may suppose. On the one hand, if they use the weak version of the sentience criterion then they cannot sustain the claim that all nonhuman vertebrates are our moral equals—unless they can demonstrate that they are all sentient to the same degree that we are. It is unclear how such a demonstration would proceed, or what would count as success. On the other hand, if they use the strong version of the sentience criterion, then they are committed to the conclusion that if flies and mosquitos are even minimally sentient then they too are our moral equals. Not even the most radical animal liberationists have endorsed the moral equality of such invertebrate animals,6 yet it is quite likely that these creatures enjoy some form of sentience. We do not really know whether complex invertebrate animals such as spiders and insects have sensory experiences, but the evidence suggests that they may. They have both sense organs and central nervous systems, and they often act as if they could see, hear, and feel very well. Sumner says that ail invertebrates are probably nonsentient, because they lack certain brain structures—notably forebrains—that appear to be essential to the processing of pain in vertebrate animals (143). But might not some invertebrate animals have neurological devices for the processing of pain that are different from those of vertebrates, just as some have very different organs for the detection of light, sound, or odor? The capacity to feel pain is important to highly mobile organisms which guide their behavior through perceptual data, since it often enables them to avoid damage or destruction. Without that capacity, such organisms would be less likely to survive long enough to reproduce. Thus, if insects, spiders, crayfish, or octopi can see, hear, or smell, then it is quite likely that they can also feel pain. If sentience is the sole criterion for moral equality, then such probably-sentient entities deserve the benefit of the doubt. But it is difficult to believe that killing invertebrate animals is as morally objectionable as homicide. That an entity is probably sentient provides a reason for avoiding actions that may cause it pain. It may also provide a reason for respecting its life, a life which it may enjoy. But it is not a sufficient reason for regarding it as a moral equal. Perhaps an ideally moral person would try to avoid killing any sentient being, even a fly. Yet it is impossible in practice to treat the killing of persons and the killing of sentient invertebrates with the same severity. Even the simplest activities essential to human survival (such as agriculture, or gathering wild foods) generally entail some loss of invertebrate lives. If the strong version of the sentience criterion is correct, then all such activities are morally problematic. And if it is not, then the probable sentience of late-term fetuses and newborn infants is not enough to demonstrate that either late abortion or infanticide is the moral equivalent of homicide. Some additional argument is needed to show that either late abortion or early infanticide is seriously immoral.

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T h e S elf -Aw aren ess C r iter io n

Although newborn infants are regarded as persons in both law and common moral conviction, they lack certain mental capacities that are typical of persons. They have sensory experiences, but, as Tooley points out, they probably do not yet think, or have a sense of who they are, or a desire to continue to exist. It is not unreasonable to suppose that these facts make some difference to their moral standing. Other things being equal, it is surely worse to kill a self-aware being that wants to go on living than one that has never been self-aware and that has no such preference. If this is true, then it is hard to avoid the conclusion that neither abortion nor infanticide is quite as bad as the killing of older human beings. And indeed many human societies seem to have accepted that conclusion. Tooley notes that the abhorrence of infanticide which is characteristic of cultures influenced by Christianity has not been shared by most cultures outside that influence (315-322). Prior to the present century, most societies—from the gatherer-hunter societies of Australia, Africa, North and South America, and elsewhere, to the high civilizations of China, India, Greece, Rome, and Egypt—have not only tolerated occasional instances of infanticide but have regarded it as sometimes the wisest course of action. Even in Christian Europe there was often a de facto toleration of infanti­ cide—so long as the mother was married and the killing discreet. Through­ out much of the second millennium in Europe, single women whose infants failed to survive were often executed in sadistic ways, yet married women whose infants died under equally suspicious circumstances generally escaped legal penalty (Piers 1978,45-46). Evidently, the sanctions against infanticide had more to do with the desire to punish female sexual transgressions than with a consistently held belief that infanticide is morally comparable to homicide. If infanticide has been less universally regarded as wrong than most people today believe, then the self-awareness criterion is more consistent with common moral convictions than it at first appears. Nevertheless, it conflicts with some convictions that are almost universal, even in cultures that tolerate infanticide. Tooley argues that infants probably b£gin to think and to become self-aware at about three months of age, and that this is therefore the stage at which they begin to have a strong right to life (405-406). Perhaps this is true. However the customs of most cultures seem to have required that a decision about the life of an infant be made within, at most, a few days of birth. Often, there was some special gesture or ceremony—such as washing the infant, feeding it, or giving it a name—to mark the fact that it would thenceforth be regarded as a member of the community. From that point on, infanticide would not be considered, except perhaps under unusual circumstances. For instance, Margaret Mead gives this account of birth and infanticide among the Arapesh people of Papua New Guinea:

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While the child is being delivered, the father waits within ear-shot until its sex is determined, when the midwives call it out to him. To this information he answers laconically, " Wash it,” or "Do not wash it.” If the command is "Wash it,” the child is to be brought up. In a few cases when the child is a girl and there are already several girl-children in the family, the child will not be saved, but left, unwashed, with the cord uncut, in the bark basin on which the delivery takes place. (Mead [1935] 1963,32-33) Mead’s account shows that among the Arapesh infanticide is at least to some degree a function of patriarchal power. In this, they are not unusual. In almost every society in which infanticide has been tolerated, female infants have been the most frequent victims. In patriarchal, patrilineal and patrilocal societies, daughters are usually valued less than sons, e.g., because they will leave the family at marriage, and will probably be unable to contribute as much as sons to the parents’ economic support later. Female infanticide probably reinforces male domination by reducing the relative number of women and dramatically reinforcing the social devaluation of females.7 Often it is the father who decides which infants will be reared. Dianne Romaine has pointed out to me that this practice may be due to a reluctance to force women, the primary caregivers, to decide when care should not be given. However, it also suggests that infanticide often served the interests of individual men more than those of women, the family, or the community as a whole. Nevertheless, infanticide must sometimes have been the most humane resolution of a tragic dilemma. In the absence of effective contraception or abortion, abandoning a newborn can sometimes be the only alternative to the infant’s later death from starvation. Women of nomadic gatherer-hunter societies, for instance, are sometimes unable to raise an infant born too soon after the last one, because they can neither nurse nor carry two small children. But if infanticide is to be considered, it is better that it be done imme­ diately after birth, before the bonds of love and care between the infant and the mother (and other persons) have grown any stronger than they may already be. Postponing the question of the infant’s acceptance for weeks or months would be cruel to all concerned. Although an infant may be little more sentient or self-aware at two weeks of age than at birth, its death is apt to be a greater tragedy—not for it, but for those who have come to love it. I suspect that this is why, where infanticide is tolerated, the decision to kill or abandon an infant must usually be made rather quickly. If this consideration is morally relevant—and I think it is—then the self-awareness criterion fails to illuminate some of the morally salient aspects of infanticide.

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P r o t e c t in g N o n per so n s

If we are to justify a general moral distinction between abortion and infanticide, we must answer two questions. First, why should infanticide be discouraged, rather than treated as a matter for individual decision? And second, why should sentient fetuses not be given the same protections that law and common sense morality accord to infants? But before turning to these two questions, it is necessary to make a more general point. Persons have sound reasons for treating one another as moral equals. These reasons derive from both self-interest and altruistic concern for others—which, because of our social nature, are often very difficult to distinguish. Human persons—and perhaps all persons—normally come into existence only in and through social relationships. Sentience may begin to emerge without much direct social interaction, but it is doubtful that a child reared in total isolation from human or other sentient (or apparently sentient) beings could develop the capacities for self-awareness and social interaction that are essential to personhood. The recognition of the fundamentally social nature of persons can only strengthen the case for moral equality, since social relationships are undermined and distorted by inequali­ ties that are perceived as unjust. There may be many nonhuman animals who have enough capacity for self-awareness and social interaction to be regarded as persons, with equal basic moral rights. But, whether or not this is true, it is certainly true that if any things have full and equal basic moral rights then persons do. However we cannot conclude that, because all persons have equal basic moral rights, it is always wrong to extend strong moral protections to beings that are not persons. Those who accept the single-criterion assumption may find that a plausible inference. By now, however, most thoughtful people recognize the need to protect vulnerable elements of the natural world—such as endangered plant and animal species, rainforests, and rivers—from further destruction at human hands. Some argue that it is appropriate, as a way of protecting these things, to ascribe to them legal if not moral rights (Stone 1974). These things should be protected not because they are sentient or self-aware, but for other good reasons. They are irreplaceable parts of the terrestrial biosphere, and as such they have incalculable value to human beings. Their long-term instrumental value is often a fully sufficient reason for protecting them. However, they may also be held to have inherent value, i.e., value that is independent of the uses we might wish to make of them (Taylor 1986). Although destroying them is not murder, it is an act of vandalism which later generations will mourn. It is probably not crucial whether or not we say that endangered species and natural habitats have a moral right to our protection. What is crucial is that we recognize and act upon the need to protect them. Yet certain contem-

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porary realities argue for an increased willingness to ascribe rights to imper­ sonal elements of the natural world. Americans, at least, are likely to be more sensitive to appeals and demands couched in terms of rights than those that appeal to less familiar concepts, such as inherent value. So central are rights to our common moral idiom, that to deny that trees have rights is risk being thought to condone the reckless destruction of rainforests and redwood groves. If we want to communicate effectively about the need to protect the natural world—and to protect it for its own sake as well as our own—then we may be wise to develop theories that permit us to ascribe at least some moral rights to some things that are clearly not persons. Parallel issues arise with respect to the moral status of the newborn infant. As Wolgast (1987, 38) argues, it is much more important to understand our responsibilities to protect and care for infants than to insist that they have exactly the same moral rights as older human beings. Yet to deny that infants have equal basic moral rights is to risk being thought to condone infanticide and the neglect and abuse of infants. Here too, effective communication about human moral responsibilities seems to demand the ascription of rights to beings that lack certain properties that are typical of persons. But, of course, that does not explain why we have these responsibilities towards infants in the first place. W

hy

P r o t e c t In fa n ts ?

I have already mentioned some of the reasons for protecting human infants more carefully than we protect most comparably-sentient nonhuman beings. Most people care deeply about infants, particularly—but not exclu­ sively—their own. Normal human adults (and children) are probably "programmed” by their biological nature to respond to human infants with care and concern. For the mother, in particular, that response is apt to begin well before the infant is born. But even for her it is likely to become more intense after the infant’s birth. The infant at birth enters the human social world, where, if it lives, it becomes involved in social relationships with others, of kinds that can only be dimly foreshadowed before birth. It begins to be known and cared for, not just as a potential member of the family or community, but as a socially present and responsive individual. In the words of Loren Lomansky (1984, 172), "birth constitutes a quantum leap forward in the process of establishing . . . social bonds.” The newborn is not yet self-aware, but it is already (rapidly becoming) a social being. Thus, although the human newborn may have no intrinsic properties that can ground a moral right to life stronger than that of a fetus just before birth, its emergence into the social world makes it appropriate to treat it as if it had such a stronger right. This, in effect, is what the law has done, through the doctrine that a person begins to exist at birth. Those who accept the

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intrinsic-properties assumption can only regard this doctrine as a legal fiction. However, it is a fiction that we would have difficulty doing without. If the line were not drawn at birth, then I think we would have to draw it at some point rather soon thereafter, as many other societies have done. Another reason for condemning infanticide is that, at least in relatively privileged nations like our own, infants whose parents cannot raise them can usually be placed with people who will love them and take good care of them. This means that infanticide is rarely in the infant’s own best interests, and would often deprive some potential adoptive individual or family of a great benefit. It also means that the prohibition of infanticide need not impose intolerable burdens upon parents (especially women). A rare parent might think it best to kill a healthy8 infant rather than permitting it to be reared by others, but a persuasive defense of that claim would require special circumstances. For instance, when abortion is unavailable and women face savage abuses for supposed sexual transgressions, those who resort to infan­ ticide to conceal an "illegitimate” birth may be doing only what they must. But where enforcement of the sexual double standard is less brutal, abortion and adoption can provide alternatives that most women would prefer to infanticide. Some might wonder whether adoption is really preferable to infanticide, at least from the parent’s point of view. Judith Thomson (1971,66) notes that, "A woman may be utterly devastated by the thought of a child, a bit of herself, put out for adoption and never seen or heard of again.” From the standpoint of narrow self-interest, it might not be irrational to prefer the death of the child to such a future. Yet few would wish to resolve this problem by legalizing infanticide. The evolution of more open adoption procedures which permit more contact between the adopted child and the biological parents) might lessen the psychological pain often associated with adoption. But that would be at best a partial solution. More basic is the provision of better social support for child-rearers, so that parents are not forced by economic necessity to surrender their children for adoption. These are just some of the arguments for treating infants as legal persons, with an equal right to life. A more complete account might deal with the effects of the toleration of infanticide upon other moral norms. But the existence of such effects is unclear. Despite a tradition of occasional infanti­ cide, the Arapesh appear in Mead’s descriptions as gentle people who treat their children with great kindness and affection. The case against infanticide need not rest upon the questionable claim that the toleration of infanticide inevitably leads to the erosion of other moral norms. It is enough that most people today strongly desire that the lives of infants be protected, and that this can now be done without imposing intolerable burdens upon individuals or communities.

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But have I not left the door open to the claim that infanticide may still be justified in some places, e.g., where there is severe poverty and a lack of accessible adoption agencies or where women face exceptionally harsh penal­ ties for "illegitimate” births? I have, and deliberately. The moral case against the toleration of infanticide is contingent upon the existence of morally preferable options. Where economic hardship, the lack of contraception and abortion, and other forms of sexual and political oppression have eliminated all such options, there will be instances in which infanticide is the least tragic of a tragic set of choices. In such circumstances, the enforcement of extreme sanctions against infanticide can constitute an additional injustice. W hy B irth M atters

I have defended what most regard as needing no defense, i.e., the ascrip­ tion of an equal right to life to human infants. Under reasonably favorable conditions that policy can protect the rights and interests of all concerned, including infants, biological parents, and potential adoptive parents. But if protecting infants is such a good idea, then why is it not a good idea to extend the same strong protections to sentient fetuses? The question is not whether sentient fetuses ought to be protected: of course they should. Most women readily accept the responsibility for doing whatever they can to ensure that their (voluntarily continued) pregnancies are successful, and that no avoidable harm comes to the fetus. Negligent or malevolent actions by third parties which result in death or injury to pregnant women or their potential children should be subject to moral censure and legal prosecution. A just and caring society would do much more than ours does to protect the health of all its members, including pregnant women. The question is whether the law should accord to late-term fetuses exactly the same protec­ tions as are accorded to infants and older human beings. The case for doing so might seem quite strong. We normally regard not only infants, but all other postnatal human beings as entitled to strong legal protections so long as they are either sentient or capable of an eventual return to sentience. We do not also require that they demonstrate a capacity for thought, self-awareness, or social relationships before we conclude that they have an equal right to life. Such restrictive criteria would leave too much room for invidious discrimination. The eternal propensity of powerful groups to rationalize sexual, racial, and class oppression by claiming that members of the oppressed group are mentally or otherwise "inferior” leaves little hope that such restrictive criteria could be applied without bias. Thus, for human beings past the prenatal stage, the capacity for sentience—or for a return to sentience—may be the only pragmatically defensible criterion for the ascription of full and equal basic rights. If so, then both theoretical simplicity and moral consistency may seem to require that we extend the

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same protections to sentient human beings that have not yet been born as to those that have. But there is one crucial consideration which this argument leaves out. It is impossible to treat fetuses in utero as if they were persons without treating women as if they were something less than persons. The extension of equal rights to sentient fetuses would inevitably license severe violations of women’s basic rights to personal autonomy and physical security. In the first place, it would rule out most second-trimester abortions performed to protect the woman’s life or health. Such abortions might sometimes be construed as a form of self-defense. But the right to self-defense is not usually taken to mean that one may kill innocent persons just because their continued existence poses some threat to one’s own life or health. If abortion must be justified as self-defense, then it will rarely be performed until the woman is already in extreme danger, and perhaps not even then. Such a policy would cost some women their lives, while others would be subjected to needless suffering and permanent physical harm. Other alarming consequences of the drive to extend more equal rights to fetuses are already apparent in the United States. In the past decade it has become increasingly common for hospitals or physicians to obtain court orders requiring women in labor to undergo Caesarean sections, against their will, for what is thought to be the good of the fetus. Such an extreme infringement of the woman’s right to security against physical assault would be almost unthinkable once the infant has been born. No parent or relative can legally be forced to undergo any surgical procedure, even possibly to save the life of a child, once it is born. But pregnant women can sometimes be forced to undergo major surgery, for the supposed benefit of the fetus. As George Annas (1982, 16) points out, forced Caesareans threaten to reduce women to the status of inanimate objects—containers which may be opened at the will of others in order to get at their contents. Perhaps the most troubling illustration of this trend is the case of Angie Carder, who died at George Washington University Medical Center in June 1987, two days after a court-ordered Caesarean section. Ms. Carder had suffered a recurrence of an earlier cancer, and was not expected to live much longer. Her physicians agreed that the fetus was too undeveloped to be viable, and that Carder herself was probably too weak to survive the surgery. Although she, her family, and the physicians were all opposed to a Caesarean delivery, the hospital administration—evidently believing it had a legal obli­ gation to try to save the fetus—sought and obtained a court order to have it done. As predicted, both Carder and her infant died soon after the opera­ tion.9 This woman’s rights to autonomy, physical integrity, and life itself were forfeit—not just because of her illness, but because of her pregnancy. Such precedents are doubly alarming in the light of the development of new techniques of fetal therapy. As fetuses come to be regarded as patients,

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with rights that may be in direct conflict with those of their mothers, and as the in utero treatment of fetuses becomes more feasible, more and more pregnant women may be subjected against their will to dangerous and inva­ sive medical interventions. If so, then we may be sure that there will be other Angie Carders. Another danger in extending equal legal protections to sentient fetuses is that women will increasingly be blamed, and sometimes legally prosecuted, when they miscarry or give birth to premature, sick, or abnormal infants. It is reasonable to hold to the caretakers of infants legally responsible if their charges are harmed because of their avoidable negligence. But when a woman miscarries or gives birth to an abnormal infant, the cause of the harm might be traced to any of an enormous number of actions or circumstances which would not normally constitute any legal offense. She might have gotten too much exercise or too little, eaten the wrong foods or the wrong quantity of the right ones, or taken or failed to take certain drugs. She might have smoked, consumed alcohol, or gotten too little sleep. She might have "permitted” her health to be damaged by hard work, by unsafe employment conditions, by the lack of affordable medical care, by living near a source of industrial pollution, by a physically or mentally abusive partner, or in any number of other ways. Are such supposed failures on the part of pregnant women potentially to be construed as child abuse or negligent homicide? If sentient fetuses are entitled to the same legal protections as infants, then it would seem so. The danger is not a merely theoretical one. Two years ago in San Diego, a woman whose son was born with brain damage and died several weeks later was charged with felony child neglect. It was said that she had been advised by her physician to avoid sex and illicit drugs, and to the hospital immediately if she noticed any bleeding. Instead, she had allegedly had sex with her husband, taken some inappropriate drug, and delayed getting to the hospital for what might have been several hours after the onset of bleeding. In this case, the charges were eventually dismissed on the grounds that the child protection law invoked had not been intended to apply to cases of this kind. But the multiplication of such cases is inevitable if the strong legal protections accorded to infants are extended to sentient fetuses. A bill recently introduced in the Australian state of New South Wales would make women liable to criminal prosecution if they are found to have smoked during pregnancy, eaten unhealthful foods, or taken any other action which can be shown to have adversely affected the development of the fetus (The Australian, July 5, 1988, 5). Such an approach to the protection of fetuses authorizes the legal regulation of virtually every aspect of women’s public and private lives, and thus is incompatible with even the most minimal right to autonomy. Moreover, such laws are apt to prove counterproductive, since the fear of prosecution may deter poor or otherwise vulnerable women from

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seeking needed medical care during pregnancy. I am not suggesting that women whose apparent negligence causes prenatal harm to their infants should always be immune from criticism. However, if we want to improve the health of infants we would do better to provide the services women need to protect their health, rather than seeking to use the law to punish those whose prenatal care has been less than ideal. There is yet another problem, which may prove temporary but which remains significant at this time. The extension of legal personhood to sentient fetuses would rule out most abortions performed because of severe fetal abnormalities, such as Down’s Syndrome or spina bifida. Abortions performed following amniocentesis are usually done in the latter part of the second trimester, since it is usually not possible to obtain test results earlier. Methods of detecting fetal abnormalities at earlier stages, such as chorion biopsy, may eventually make late abortion for reasons of fetal abnormality unnecessary; but at present the safety of these methods is unproven. The elimination of most such abortions might be a consequence that could be accepted, were the society willing to provide adequate support for the handicapped children and adults who would come into being as a result of this policy. However, our society is not prepared to do this. In the absence of adequate communally'funded care for the handicapped, the prohibition of such abortions is exploitative of women. O f course, the male relatives of severely handicapped persons may also bear heavy burdens. Yet the heaviest portion of the daily responsibility generally falls upon mothers and other female relatives. If fetuses are not yet persons (and women are), then a respect for the equality of persons should lead to support for the availability of abortion in cases of severe fetal abnormality.10 Such arguments will not persuade those who deeply believe that fetuses are already persons, with equal moral rights. How, they will ask, is denying legal equality to sentient fetuses different from denying it to any other powerless group of human beings? If some human beings are more equal than others, then how can any of us feel safe? The answer is twofold. First, pregnancy is a relationship different from any other, including that between parents and already-born children. It is not just one of innumerable situations in which the rights of one individual may come into conflict with those of another; it is probably the only case in which the legal personhood of one human being is necessarily incompatible with that of another. Only in pregnancy is the organic functioning of one human individual biologically inseparable from that of another. This organic unity makes it impossible for others to provide the fetus with medical care or any other presumed benefit, except by doing something to or for the woman. To try to " protect” the fetus other than through her cooperation and consent is effectively to nullify her right to autonomy, and potentially to expose her to violent physical assaults such as would not be legally condoned in any other type of case. The

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uniqueness of pregnancy helps to explain why the toleration of abortion does not lead to the disenfranchisement of other groups of human beings, as opponents of abortion often claim. For biological as well as psychological reasons, "It is all but impossible to extrapolate from attitudes towards fetal life attitudes toward [other] existing human life" (D. Callahan 1970,474). But, granting the uniqueness of pregnancy, why is it women's rights that should be privileged? If women and fetuses cannot both be legal persons then why not favor fetuses, e.g., on the grounds that they are more helpless, or more innocent, or have a longer life expectancy? It is difficult to justify this apparent bias towards women without appealing to the empirical fact that women are already persons in the usual, nonlegal sense—already thinking, self-aware, fully social beings—and fetuses are not. Regardless of whether we stress the intrinsic properties of persons, or the social and relational dimen­ sions of personhood, this distinction remains. Even sentient fetuses do not yet have either the cognitive capacities or the richly interactive social involve­ ments typical of persons. This "not yet" is morally decisive. It is wrong to treat persons as if they do not have equal basic rights. Other things being equal, it is worse to deprive persons of their most basic moral and legal rights than to refrain from extending such rights to beings that are not persons. This is one important element of truth in the self-awareness criterion. If fetuses were already thinking, self-aware, socially responsive members of communities, then nothing could justify refusing them the equal protection of the law. In that case, we would sometimes be forced to balance the rights of the fetus against those of the woman, and sometimes the scales might be almost equally weighted. However, if women are persons and fetuses are not, then the balance must swing towards women’s rights. C o n c l u s io n

Birth is morally significant because it marks the end of one relationship and the beginning of others. It marks the end of pregnancy, a relationship so intimate that it is impossible to extend the equal protection of the law to fetuses without severely infringing women’s most basic rights. Birth also marks the beginning of the infant’s existence as a socially responsive member of a human community. Although the infant is not instantly transformed into a person at the moment of birth, it does become a biologically separate human being. As such, it can be known and cared for as a particular indi­ vidual. It can also be vigorously protected without negating the basic rights of women. There are circumstances in which infanticide may be the best of a bad set of options. But our own society has both the ability and the desire to protect infants, and there is no reason why we should not do so.

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We should not, however, seek to extend the same degree of protection to fetuses. Both late-term fetuses and newborn infants are probably capable of sentience. Both are precious to those who want children; and both need to be protected from a variety of possible harms. All of these factors contribute to the moral standing of the late-term fetus, which is substantial. However, to extend equal legal rights to fetuses is necessarily to deprive pregnant women of the rights to personal autonomy, physical integrity, and sometimes life itself. There is room for only one person with full and equal rights inside a single human skin. That is why it is birth, rather than sentience, viability, or some other prenatal milestone that must mark the beginning of legal parenthood.11 N o tes 1. Basic moral rights are those that are possessed equally by all persons, and that are essential to the moral equality of persons. The intended contrast is to those rights which arise from certain special circumstances—for instance, the right of a person to whom a promise has been made that that promise be kept. (Whether there are beings that are not persons but that have similar basic moral rights is one of the questions to be addressed here.) 2. "Moral standing,” like "moral status,” is a term that can be used to refer to the moral considerability of individuals, without being committed to the existence of moral rights. For instance, Sumner (1983) and Singer (1981) prefer these terms because, as utilitarians, they are unconvinced of the need for moral rights. 3. It is not obvious that a newborn infant’s "level of consciousness” is similar to that of a fetus shortly before birth. Perhaps birth is analogous to an awakening, in that the infant has many experiences that were previously precluded by its prenatal brain chemistry or by its relative insulation within the womb. This speculation is plausible in evolutionary terms, since a rich subjective mental life might have little survival value for the fetus, but might be highly valuable for the newborn, e.g., in enabling it to recognize its mother and signal its hunger, discomfort, etc. However, for the sake of the argument I will assume that the newborn’s capacity for sentience is generally not very different from that of the fetus shortly before birth. 4. It is interesting that Sumner regards fetal abnormality and the protection of the woman’s health as sufficient justifications for late abortion. In this, he evidently departs from his own theory by effectively differentiating between the moral status of sentient fetuses and that of older humans—who presumably may not be killed just because they are abnormal or because their existence (through no fault of their own) poses a threat to someone else’s health. 5. There are evidently some people who, though otherwise sentient, cannot experience physical pain. However, the survival value of the capacity to experience pain makes it probable that such individuals are the exception rather than the rule among mature members of sentient species. 6. There is at least one religion, that of the Jains, in which tH'e killing of any living thing— even an insect—is regarded as morally wrong. But even the Jains do not regard the killing of insects as morally equivalent to the killing of persons. Laypersons (unlike mendicants) are permitted some unintentional killing of insects—though not of vertebrate animals or persons— when this is unavoidable to the pursuit of their profession. (See Jaini 1979, 171-3.) 7. Marcia Guttentag and Paul Secord (1983) argue that a shortage of women benefits at least some women, by increasing their "value” in the marriage market. However, they also argue that this increased value does not lead to greater freedom for women; on the contrary, it tends to coincide with an exceptionally severe sexual double standard, the exclusion of women from public life, and their confinement to domestic roles. 8. The extension of equal basic rights to infants need not imply the absolute rejection of euthanasia for infant patients. There are instances in which artificially extending the life of a severely compromised infant is contray to the infant’s own best interests. Competent adults or

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older children who are terminally ill sometimes rightly judge that further prolongation of their lives would not be a benefit to them. While infants cannot make that judgment for themselves, it is sometimes the right judgment for others to make on their behalf. 9. See Civil Liberties 363 (Winter 1988), 12, and Lawrence Lader, "Regulating Birth: Is the State Going Too Far?” Conscience IX: 5 (September/October, 1988), 5-6. 10. It is sometimes argued that using abortion to prevent the birth of severely handicapped infants will inevitably lead to a loss of concern for handicapped persons. I doubt that this is true. There is no need to confuse the question of whether it is good that persons be born handicapped with the very different question of whether handicapped persons are entitled to respect, support, and care. 11. My thanks to Helen Heise, Helen B. Holmes, Laura M. Purdy, Dianne Romaine, Peter Singer, and Michael Scriven for their helpful comments on earlier versions of this paper. R eferences

Annas, George. 1982. Forced cesareans: The most unkindest cut. Hastings Center Report June 12: 3. The Australian, Tuesday, July 5, 1988, 5. Callahan, Daniel. 1970. Abortion: Law, choice and morality. New York: Macmillan. Callahan, Sydney. 1984. Value choices in abortion. In Abortion: Under­ standing differences. Sydney Callahan and Daniel Callahan, eds. New York and London: Plenum Press. Callahan, Sydney. 1986. Abortion and the sexual agenda. Commonweal, April 25,232-238. Carol Gilligan. 1982. In a different voice: Psychological theory and women's development. Cambridge, Massachusetts: Harvard University Press. Guttentag, Marcia, and Paul Secord. 1983. Too many women: The sex ratio question. Beverly Hills: Sage Publications. Beverly Wildung Harrison. 1983. Our right to choose: Toward a new ethic of abortion. Boston: Beacon Press. Jaini, Padmanab S. 1979. The jaina path of purification. Berkeley, Los Angeles, London: University of California Press. Lomansky, Loren. 1984. Being a person—does it matter? In The problem of abortion. Joel Feinberg, ed. Belmont, California. Kristen Luker. 1984. Abortion and the politics of motherhood. Berkeley, Los Angeles and London: University of California Press. Manning, Rita. 1988. Caring for and caring about. Paper presented at com ference entitled Explorations in Feminist Ethics, Duluth, Minnesota. October 8. Mead, Margaret. [ 1935] 1963. Sex and temperament in three primitive societies. New York: Morrow Quill Paperbacks. Nell Noddings. 1984. Caring: A feminine approach to ethics and moral educa­ tion. Berkeley, Los Angeles and London: University of California Press. Rosalind Pollack Petchesky. 1984. Abortion and women's choice. New York, London: Longman.

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Piers, Maria W. 1978. Infanticide. New York: W.W. Norton and Company. Singer, Peter. 1981. The expanding circle: Ethics and sociobiology. New York: Farrar, Straus and Giroux. Stone, Christopher. 1974. Should trees have standing: Towards legal rights for natural objects. Los Altos: William Kaufman. Stone, Christopher. 1987. Earth and other ethics. New York: Harper & Row. Sumner, L. W. 1983. Abortion and moral theory. Princeton, New Jersey: Princeton University Press. Taylor, Paul W. 1986. Respect for nature: A theory of environmental ethics. Princeton, New Jersey: Princeton University Press. Thomson, Judith Jarvis. 1971. A defense of abortion. Philosophy and Public Affairs 1(1): 47-66. Tooley, Michael. 1983. Abortion and infanticide. Oxford: Oxford University Press. Wolgast, Elizabeth. 1987. The grammar of justice. Ithaca & London: Cornell University Press.

[7] ABORTION AND EMBODIMENT1 Catriona Mackenzie 1. Introduction Feminist perspectives on abortion focus on a fact the moral implications of which are either overlooked or considered unimportant by most other disputants in the debate. This is the fact that a foetus is not a free-floating entity about whom questions of potentiality and personhood arise as though in a vacuum: Rather a foetus is a being whose existence and welfare are biologically and morally inseparable from the woman in whose body it develops. From a feminist perspective the central moral subjects of the abortion question are thus not only, or not primarily, foetuses but women. Within an influential strand of the feminist philosophical literature it has been usual to understand the moral dilemmas arising from this unique relationship between a foetus and a woman in terms of a conflict of rights and to defend a woman’s right to abortion via the notion of bodily autonomy. In its crudest form, the alleged conflict is between a) the ‘right to life’ of the foetus, a right based on the presumption that it is a being deserving of some moral consideration, and b) the right of the woman to bodily autonomy, that is, her right to decide what happens in and to her body. In attempting to resolve this conflict in women’s favour feminist defenders of abortion have taken two main lines of argument. The first, articulated best by Mary Anne Warren, argues that in abortion decisions the woman’s right to bodily autonomy must always prevail over any rights which may be claimed on behalf of the foetus.2 This is because the only beings with full moral standing are persons. Not only are foetuses not persons, 1 I am grateful to the editorial panel and to anonymous referees for their comments on earlier versions of this article. Earlier versions were also read to the Philosophy Department at Monash University, the Philosophy Society at Princeton University, and a seminar on ‘Legal and Conceptual Aspects of Abortion' at the University of New South Wales. I would like to thank participants in those discussions for their comments. I would also like to thank the following people for their helpful discussions and/or comments: John Bigelow, John Burgess, Genevieve Lloyd, Michaelis Michael, Robert Pargetter, Peter Singer, Michael Smith, C.L. Ten. 2 My argument in this part of the article refers to Mary Anne Warren’s paper 'On the Moral and Legal Status of Abortion' in R. Wasserstrom (ed.) Today’s Moral Problems (London: Macmillan, 1975). In a very recent paper, to which I refer in more detail later, Warren's characterisation of the foetus is markedly different although her basic position on a woman's right to bodily autonomy remains unaltered. See 'The Moral Significance of Birth’, Hypatia 4 (1989) pp. 46-65. This paper is a modified version of an earlier paper with the same title which appeared in Bioethics News, Publication of the Centre for Human Bioethics, Monash University, vol.7, no. 2, January 1988.

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they are not even personlike enough to warrant our regarding them as if they were persons, indeed, Warren claim s that an eight-month foetus is no more personlike than the average fish. On this view then, the ‘right to life’ o f the foetus, to the extent that it has such a right, cannot possibly outweigh the right o f a person to one o f the fundamental rights o f persons — the right to bodily autonomy. In fact, Warren claim s that having an abortion is morally equivalent to cutting on e’s hair. The second line of argument is best represented by Judith Jarvis Thom son and, following her, Christine Overall.3 Their claim involves a sophisticated reinterpretation of the claim that even if a foetus does have a right to life, the w om an’s right to bodily autonom y overrides that right. By trying to show that even if the foetus is a being with moral standing it has no automatic right to occupancy o f a w om an’s womb, their argument seeks to undermine the basic premise of the conservative position on abortion — namely the premise that if foetuses are persons, that is, beings with full moral rights, then abortion is necessarily wrong. My aim in this article is to defend a fem inist perspective on abortion by showing that questions of w om en’s autonom y lie at the heart o f the abortion issue. I shall argue, however, that the conflict-of-rights framework and rightsbased m odels o f bodily autonom y are liable seriously to misrepresent both the nature o f abortion decisions and the reasons why the availability of abortion is essential to w om en’s autonomy. My dissatisfaction with this kind o f approach centres on four related concerns. Firstly, a conilict-of-rights approach fails adequately to address the issue o f responsibility in pregnancy and abortion. Hence it mischaracterises both the nature o f the moral relationship between woman and foetus and the kind o f autonom y that is exercised in pregnancy and abortion. Secondly, it tends to oversimplify our conception of the status o f the foetus. Thirdly, it leads to a misconstrual of the notion o f bodily autonomy because it is inattentive to the kind o f reflective bodily perspective that arises from a phenom enological account o f pregnant embodiment. Finally, defending abortion solely on the grounds o f w om en’s right to bodily autonomy logically requires that the right to abortion cannot entail a right to secure the death o f the foetus but only a right to foetal evacuation. I shall argue that a strong fem inist case for abortion needs to construe a woman’s right to obtain an abortion as the right o f an autonom ous moral agent to be able to make a decision about whether she wishes to take responsibility for the future well-being o f a being dependent upon her. In choosing an abortion in other words, a woman is not merely choosing not to allow the foetus occupancy of her uterus. Nor is she merely choosing not to undertake responsibility for a particular future child. Rather, as Steven Ross has pointed out, she is choosing that there be no being at all in relation to whom she is in a situation o f such responsibility.4 To require that a woman has no right to secure the death o f the

3 Judith Jarvis Thomson ‘A Defense of Abortion’, Philosophy and Public Affairs, 1 (1971) pp. 47-66; Christine Overall, Ethics and Human Reproduction (Boston: Allen & Unwin, 1987) chs. 3, 4. 4 Steven Ross. ‘Abortion and the Death of the Foetus', Philosophy and Public Affairs 11 (1982) pp. 232-245.

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foetus, at least in the early stages o f pregnancy, thus violates her autonomy. N ow against this claim it could be argued that here the woman is not only making decisions about her own life but about that of another. W hat entitles her to make such a decision? The next three sections o f the article attempt to answer this question. In the second section I make som e suggestions as to how we should understand the notions o f responsibility and autonom y in pregnancy, while the third section assesses the moral status o f the foetus both from the point o f view o f its intrinsic moral properties and from the point o f view o f its relationship with the woman in whose body it develops. Building on the previous two sections, the final section draws on a phenom enological account o f pregnancy in order to explain the connection between autonom y, bodily autonom y and pregnant embodiment. M y criticisms o f the rights-based accounts o f bodily autonom y emerge from this discussion.

II. Responsibility and Autonom y Appeals to responsibility in the context o f the abortion debate usually trade on the asymmetry between the situation o f men and women with regard to pregnancy. The asymmetry is that while it is always possible for men to evade or even remain blissfully unaware o f the consequences o f their actions where those actions result in pregnancy, the sam e is not true for women. Further it is women alone who are physically able to sustain the foetus. Thus women com e to be held ‘responsible’ for what was after all a joint action. Given this context it is hardly surprising that feminist defences o f abortion often attempt to shift discussions o f the abortion issue away from the question o f responsibility. Thorny as it may be however, one o f my central claim s is that the issue o f responsibility is crucial for an understanding o f wom en’s moral autonom y with respect to pregnancy and abortion. In this section I attempt to outline an adequate fem inist approach to the question o f responsibility in pregnancy and abortion. A number o f different aspects o f responsibility are often conflated in the abortion debate. To disentangle these I want firstly to distinguish causal responsibility from moral responsibility . By causal responsibility I mean simply responsibility for the direct causal consequences o f on e’s actions in cases where those consequences can be said to be reasonably foreseeable and where a person’s actions were freely chosen. In this sense a woman can be said to be responsible for the existence o f the foetus in much the same way as she can be said to be responsible for getting drunk, in that it is her actions, in this case along with those o f another, which have brought about this outcom e.5 Although

5 I discuss the question of mens responsibility below. Given this account of causal responsibility, a woman is, of course, not causally responsible in the case of rape. In cases where a woman cannot and cannot reasonably be expected to foresee the consequences of her actions (e.g. if she is a minor or mentally disabled), or if her actions were performed under duress (the distinction between rape and consent is not as hard and fast as many would think), or if she cannot be said to be acting autonomously (e.g. in a case of drug addiction or alcoholism or some other dependency), I would argue that, although a woman may have some causal responsibility for the outcome of her actions, she cannot be considered to be morally responsible for this outcome.

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conservatives do not usually make an explicit distinction between causal and moral responsibility, the conservative claim seems to be that in the case o f pregnancy, because the outcom e here is to have brought into existence a being with full moral standing, then a w om an’s causal responsibility necessarily entails a moral responsibility towards m aintaining the existence o f the foetus.6 Feminists and liberals have responded to this claim in a number o f ways. The approach of Warren and Tooley, for example, is to attempt to shift the focus o f the abortion debate away from questions o f moral responsibility and towards a consideration o f the actual present status of the foetus with respect to personhood. Their argument is that because foetuses are not persons and therefore do not have rights, abortion is morally permissible.7 A second approach aims to show that one does not necessarily have automatic moral responsibility to maintain the existence o f a being dependent upon on eself — even if that being does have full moral standing and hence a right to life. This is T hom son’s approach in the exam ples o f the violinist and Henry Fonda.8 As Warren and Feinberg have shown, however, this strategy fails because the examples chosen are disanalogous to the case o f the foetus in one relevant respect, namely with respect to causal responsibility.9 The strategy thus begs the question. Yet another tactic is to claim that the attribution o f causal responsibility is a lot less straightforward than it might appear and thus to argue that causal responsibility for the existence o f a being does not necessarily mean that one is required to assume moral responsibility for m aintaining its existence. For to what extent is a person still morally responsible for the consequences o f an action if she has taken reasonable precautions against those consequences occurring? T hom son’s example o f the house-owner covering her windows in wire mesh to prevent the entry of people-seeds’ seeks to undermine in this way any necessary connection between causal and moral responsibility.10 While these responses have been partially successful in exposing som e o f the assumptions at work behind the seem ing self-evidence o f the conservative argument, they nevertheless fail adequately to com e to terms with the question o f moral responsibility in pregnancy because they concede too much at the outset to the conservative notion o f moral responsibility. This is particularly true o f the•

• Somewhat surprisingly, some feminists have argued for a similar view. See Hilde and James Lindemann Nelson, ‘Cutting Motherhood in Two: Some Suspicions Concerning Surrogacy’. Hypatia 4 (1989) pp. 85-94. 7 Warren, ‘On the Moral and Legal Status of Abortion', op. c/f.; Michael Tooley, ‘Abortion and Infanticide', Philosophy and Public Affairs 2 (1972) pp. 37-65. 8 The violinist example seeks to show that a person has no moral obligation to sustain the life of a famous violinist who has been attached to her without her consent, and whose survival is dependent on being connected to her circulatory system for nine months. The Henry Fonda example involves the case of a person who is dying but would be revived by the touch of Henry Fonda’s hand on her brow. The example seeks to show that a person does not necessarily have a right to whatever is required to ensure her survival. See Thomson, ‘A Defense of Abortion’, op.cit. I discuss the problem with such examples in the final section of this article. 9 Warren. ‘On the Moral and Legal Status of Abortion', op.cit.; Joel Feinberg, ‘Abortion’, in Tom Regan (ed.). Matters of Life and Death (Random House, 1980). In this example ‘people-seeds' are seeds which blow in through house windows like dust, take root in carpets, and then grow into people who demand food and shelter!

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last approach which forces Thom son, after a series of increasingly bizarre examples, to attempt to dissolve the question o f responsibility by an appeal to decency.11 What needs to be pointed out is that the conservative account o f moral responsibility is premised on a set o f assumptions which are fundamentally oppressive to women. For it is significant that in this whole debate about responsibility there seem to be only two possible ways for wom en to get pregnant. Either they are raped, in which case they have no causal responsibility for the existence o f the foetus — although according to som e conservatives they nevertheless have a moral responsibility towards it. Or else they are not raped, in which case they are held to be fully responsible, in both a causal and moral sense. In neither case however is m en’s moral responsibility ever seriously discussed, despite their obvious causal involvem ent in the pregnancy. The consequence o f this blindness is that moral responsibility in pregnancy gets construed extremely narrowly, as just responsibility towards the foetus, and in a way that seems to com m it w om en to maternity. The challenge then seems to be to envision a notion o f moral responsibility in pregnancy that acknowledges the moral com plexities o f the situation, and o f the decision facing a w om an who is weighing up the choices o f abortion or maternity, but that does not im ply that the only possible morally responsible course of action is to choose maternity. My starting point here is to accept, without argument at this stage, both that the foetus does have som e moral significance and that this is in part why causal responsibility does entail some kind of moral responsibility. H aving conceded that much to the conservatives I want to disentangle two aspects o f moral responsibility which are confused in conservative argument^. The first aspect, which I call decision responsibility , emerges as a strong theme in Carol G illigan’s interviews with w om en making the abortion decision.12 G illigan’s women reveal that in their thinking about abortion, acceptance of causal responsibility means assum ing a moral responsibility to make a decision or a series o f decisions about your future relationship with the being whose existence you have directly brought about. The decision process is focused on questions such as wliether you are in a position adequately to care for it, both now when it is in the foetal stage and, more importantly, when it is an independent being; how and whether it can be integrated into your life and the lives o f others, for example other children, whose lives will also be significantly affected by your decision; whether you feel yourself able, or prepared, to provide 11

12

I have in mind here Thomson’s discussion of the woman who at seven months requests an abortion in order to avoid having to postpone an overseas trip. Thomson realises that her argument does not allow her to claim that such a request would be immoral, so she resorts to the claim that it would be indecent. This issue aside, Thomson’s example is somewhat offensive in its presentation of women’s moral attitude towards abortion. Those women seeking abortions at this stage of pregnancy are usually those whose health is in some way gravely threatened by continuation of the pregnancy, or those who, due to drug addiction, mental disability or some other such reason, cannot be said ever to have made a moral decision with regard to their pregnancies. Carol Gilligan, In A Different Voice (Cambridge, MA: Harvard University Press, 1982). It should be noted here that the kinds of moral reflection in which these women engage is in part made possible by the fact that these women do have reproductive choice.

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the physical and emotional care and nurture needed in order for both foetus and child to flourish. What emerges from these discussions o f responsibility is that the assumption o f moral responsibility in pregnancy cannot be construed just in terms o f responsibility towards the foetus but has a wider focus — on the self, on relations with significant others, on a person’s other comm itm ents and projects. When responsibility is construed in such a way it is clear that exercising moral responsibility in no way entails a com m itm ent to maternity and that the choice o f abortion is in many cases the morally responsible decision. The second aspect o f moral responsibility in pregnancy, which I call parental responsibility , is the one which a person assumes when a com m itm ent has been made to maternity.13 What this kind o f assumption o f responsibility involves is a responsibility not just to maintaining the existence o f the foetus, nor even just a comm itm ent to providing the care and nurture needed for it to flourish, but a comm itm ent to bringing into existence a future child. Often, though not necessarily, it also involves a com m itm ent to long-term care and nurture o f that future child. My claim is that the decision to abort is a decision, for whatever reason, that one is not prepared to bring such a child into existence. It should be pointed out here that with respect to all aspects o f responsibility the situation o f men and women — in pregnancy at least — is asymmetrical. The asymmetry is that while men and women are equally responsible for pregnancy in the causal sense, causal responsibility and decision responsibility are in effect completely separable for men, but inseparable for women. This is because a woman's bodily connection with the foetus makes causal responsibility and hence decision responsibility inescapable for her.14 On the other hand m en’s bodily alienation from the consequences o f their actions and from the physical, psychic and emotional experience o f pregnancy means that they may be in a position where they are either unaware o f their causal responsibility for the existence o f the foetus or choose not to acknowledge their causal responsibility or assume decision responsibility. A sensitivity to this difference illum inates two important points. Firstly, if causal and decision responsibility are inseparable for women, then pregnancy cannot be thought o f sim ply as a merely ‘natural’ event which just happens to women and in relation to which they are passive. Although pregnancy certainly involves biological processes which are beyond the w om an’s control, these processes are always mediated by the cultural meanings o f pregnancy, by the woman's personal and social context, and by the way she constitutes herself in response to these factors through the decisions she makes. In other words, 13

14

As I have indicated, decision responsibility is a process, not a single decision. Thus a woman may change her mind a number of times before finally assuming parental responsibility. She may also change her mind after having assumed it. For reasons which I explain below I think there is a significant moral difference between such a change of mind in the first trimester or early in the second trimester and a change of mind during the latter half of pregnancy — except of course where such a change is made for medical reasons or because of foetal deformity discoverable only by amniocentesis during the second trimester. It does not follow from this however that women should be legally prevented from obtaining abortions for other reasons later in pregnancy. I discuss the distinction between moral and legal responsibility below. I discuss the nature of this bodily connection in detail in section IV below.

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pregnancy is never simply a biological process, it is always an active process of shaping for oneself a bodily and a moral perspective.15 For this reason, the moral issues associated with pregnancy and abortion cannot be viewed in abstraction from the first-person perspective o f the woman concerned.16 Secondly, because of the particularity o f the w om an’s situation in pregnancy, in cases o f conflict over abortion ultimately it should be up to the w om an to decide whether or not she will choose abortion.17 To say this does not imply, however, that in situations where men are aware o f and do acknowledge causal responsibility, they should have no say in an abortion decision. In such circumstances, because the decision made will obviously affect their autonomy, they should also be party to, and involved in, both decision responsibility and, where appropriate, parental responsibility. Indeed after birth they may assume most, or even all, parental responsibility. Nevertheless prior to birth the impact upon their autonom y o f any decision is very different from its impact on the autonom y of the woman. This is why in cases o f conflict the w om an’s decision should prevail. Two objections are likely to be raised at this point. The first is that a woman may also choose to relinquish moral responsibility, for example to others through adoption. Further it is often argued that abortion is just a relinquishing o f moral responsibility for the foetus. From the preceding discussion it should be clear that this objection conflates the two senses o f moral responsibility distinguished above. D eciding against assum ing parental responsibility does not mean that one has relinquished moral responsibility, not even for the foetus. For no matter what a woman decides — maternity, abortion, adoption — she is still responsible to herself, to others, to the child if there is one, for the decision she has made. Further, as I have already pointed out, the decision to abort is often the most morally responsible course o f action. The second objection is that I have placed a great deal o f moral weight on a decision process which in som e cases just never occurs. For som e w om en’s lives are so chaotic and so little under their control that they cannot be said to be making any autonom ous decisions about their own welfare, let alone about the welfare o f any foetus that may be developing inside their body. My response to this objection, as I have already indicated, is to say that I would not attribute moral responsibility to a woman in such a situation. However given the difficulty of actually deciding, in any given case, whether or not a woman does have any moral responsibility for a pregnancy, what the objection forces us to recognise is that a distinction needs to be made between our moral assessment o f a situation and the matter of legal sanctions. Although I have argued that the decision to continue with a pregnancy entails som e kind o f parental responsibility, this is

I develop this point in more detail in section IV below. is I would like to thank one of the Journal’s anonymous referees for helping me clarify this point. 17 I have in mind here recent cases in the UK and Australia where men have attempted to obtain court orders, on the grounds of paternal right, to prevent women from obtaining an abortion. My analysis of the asymmetry in the positions of men and women with respect to responsibility in pregnancy should make it clear why feminists have been so outraged by the men’s presumption in these cases that they should be able to overrule the decisions of the women concerned. 15

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quite different from claim ing that a woman should be legally liable for the foetus’ welfare. Arguments to this effect must be vigorously resisted for they wrongly presume that foetuses are the moral and legal equivalents o f women. In fact, as Mary Anne Warren has argued, ‘There is room for only one person with full and equal [legal] rights inside a single hum an skin’.18 While this analysis of responsibility still leaves unanswered questions abc--. the intrinsic moral status o f the foetus, it does tend to suggest that, at least in part, its moral status is dependent on the relational properties it has with others and that the abortion issue cannot adequately be broached if we focus on intrinsic properties alone.19 This relational aspect o f the foetus’ moral standing is best captured through the notion o f moral guardianship. I want to suggest that although a foetus cannot be a bearer o f full moral rights because, as I shall argue in the next section, it lacks the requisite intrinsic properties (nam ely person hood), nevertheless in a context in which some one or more members o f the moral com m unity have decided to take parental responsibility for its future well-being, it has moral significance by virtue o f its relations with her or them. We might say that in such a case it has de facto significance through her or them, until such a point when it can be considered a full moral being in its own right. This significance does not guarantee the foetus a ‘right to life’ which overrides all other possible com peting claims, but rather provides som e grounds for the foetus’ claims to nurture and care, that is, guardianship, from the woman who bears it and protection from harm from others. In this context it should be noted that once again the situation o f men and women with regard to moral guardianship is inescapably asymmetrical in pregnancy. A man, no matter how well-intentioned, cannot act as the primary guardian of an in utcro foetus. The reason for this asymmetry is not hard to discern, namely the physical inseparability o f the foetus from the woman, but its moral im plications are often overlooked. The main im plications are firstly that, as I argued earlier, in cases o f conflict it should be the woman who has the right to decide the fate o f the foetus. Secondly, this asymmetry makes it clear that, as Warren has argued, the event o f birth is morally significant.20 Its significance lies in the fact that at birth the infant becom es a member o f the human moral community in its own right because its relationship with its mother and other human beings changes significantly. N ot only is its body now separate from that of its mother, but it no longer needs to stand in a relation o f moral and physical dependence on her in particular. Any responsible human adult will now be able to provide it with the care, nurture and moral protection required for it to flourish. Having assessed the relational moral status o f the foetus I want now to justify my earlier claim that causal responsibility for the existence o f the foetus entails decision responsibility because the foetus is a morally significant being. A useful starting point for this discussion is Warren’s account o f foetal status.

18 My insert. Warren, ‘The Moral Significance of Birth’, op. cit., p. 63. 19 Warren also criticises what she calls ‘the intrinsic-properties assumption’ on the grounds that it cannot account for the moral significance of birth. Ibid, pp. 47-56. 20 Warren, ibid, p.56.

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If, following Warren, we distinguish between ‘hum an beings’ and ‘persons’ and argue that only persons can be members o f the moral com m unity, then it seems clear that the foetus is not a bearer o f moral rights in the sam e sense that a person is and so does not have the sam e ‘right to life’ as a person.21 Nevertheless, as Warren herself argues with respect to infants, it does not follow from the fact that, because anyone who is a person is entitled to strong moral protections, that it is wrong to extend moral protections to beings that are not persons.22 The more personlike the being, the more it should be treated as a person. The question arises therefore o f how far advanced since conception a hum an being needs to be before it begins to have a right to life by virtue o f being like a person, that is, at what stage should we start treating a foetus as if it were a person? On this point Warren in her earlier paper claim s that the foetus o f seven or eight months is no more personlike, or even less personlike, than the average Fish and thus should not be treated as a person. For although, like the Fish, the late term foetus is sentient, sentience is not sufFicient for personhood. Contra Thomson* she thus concludes that ‘whether or not it would be indecent (whatever that means) for a wom an in her seventh m onth to obtain an abortion just to avoid having to postpone a trip to Europe, it would not, in itself, be immoral, and therefore it ought to be permitted’.23 Warren’s com parison between foetuses and fish occurs in the context o f a discussion o f the nature o f personhood. The intention o f the com parison is to show that, while the foetus is indeed a member o f the hum an species, as far as personhood and hence claim s to rights are concerned the foetus is morally on a par with a fish. With respect to driving hom e the distinction between hum an beings and persons I do not dispute the effectiveness o f Warren’s comparison. However I want to suggest that the m etaphor is problem atic for two reasons. Firstly, it invites us to ignore the fact that, contingent though it may be,

21 Warren, ‘On the Moral and Legal Status of Abortion’, op.cit. Warren supports this distinction by outlining five criteria for personhood, specifying that a person need not satisfy all these criteria but that a being which satisfied none of them could not be considered a person. The five criteria are: 1. Consciousness (of objects and events external and/or internal to the being), and in particular the capacity to feel pain; 2. Reasoning (the developed capacity to solve new and relatively complex problems); 3. Self-motivated activity (activity which is relatively independent of either genetic or direct external control); 4. The capacity to communicate, by whatever means, messages of an indefinite variety of types, that is, not just with an indefinite number of possible contents, but on indefinitely many possible topics; 5. The presence of self-concepts, and self-awareness, either individual or racial, or both. 22 Warren, ‘ The Moral Significance of Birth’, op.cit. I follow Warren here in using the term ‘person’ because I think that in the context of abortion the distinction between ‘human beings’ and ‘persons’ is an important distinction to maintain. However I am not happy with the legalistic and individualist connotations of the term which tend to downplay the intersubjective processes of development by means of which infants become self-conscious subjects. 23 Warren, ‘On the Moral and Legal Status of Abortion, op. cif., p. 133.

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personhood is constituted by a com plex o f properties which supervene on a specific physical constitution.24 Yet despite its contingency, or perhaps because of it, I believe that this fact is morally significant. Secondly, although the foetus/fish metaphor should not be read as providing a model o f the relationship between a woman and a foetus, it has the serious, if unintended, effect o f downplaying the moral significance and particularly o f this relationship. In particular, it has the effect o f de-em phasising both the w om an’s role as moral guardian and her parental responsibility for the present and future well-being o f the foetus. The force o f the feminist defence o f abortion must lie in its highlighting of the moral particularity o f the relationship between a woman and a foetus. On the question o f foetal status and potentiality my claim is that foetuses are morally significant beings by virtue o f the fact that they are potential persons. This makes them morally different in kind from fish. However, I think it is plausible to suggest that the moral value o f the foetus’ potential personhood is not static, but changes during the course o f a normal pregnancy. This is because potential for personhood is not the only thing that bestows moral status on the being with that potentiality. Rather, the moral value o f a being’s potential personhood is related to the physical or biological basis o f the potentiality, in particular it is grounded in the degree o f complexity and developm ent o f this physical basis. Thus the more physically com plex and developed the being is, the more value we attribute to its potential for personhood. There are two ways in which this claim could be developed. One way would accept an o n /o ff view o f potentiality and argue that potential for personhood remains constant although its moral significance changes. On this view conceptus and late term foetus both have the same potentiality but the moral value o f those beings is different because the physical basis o f the potentiality is different. In the one case we have a clump o f undifferentiated cells, in the other a highly complex organism. Thus in the one case we have a being very far from being able to actualise its potentialities because it lacks the very physical basis to do so, in the other we have a being fairly close to being able to actualise its potentialities to the extent that the physical basis o f those potentialities is highly developed.25 Another way would be to question the on /o ff view o f potentiality and to argue that potential for personhood itself changes as the foetus develops physically.26 For my purposes here nothing hinges on the differences between these positions. But what is appealing about the general suggestion is that it enables us to agree with Warren’s criteria o f personhood while nevertheless resisting the counter intuitive im plications o f these criteria, viz ., that a being has no intrinsic

24 In stressing the connection between the development of subjectivity and physical development I am not denying the significance of the social relationships in the context of which these developments must occur. 25 This argument is a simplified version of an argument of John Bigelow and Robert Pargetter. See ‘Morality, Potential Persons and Abortion', American Philosophical Quarterly 25 (1988) pp. 173-181. 26 An argument for this view is presented by Michaelis Michael in The Moral Significance of Potential for Personhood' (unpublished paper. Monash University, 1986). His view is that the potential for personhood of a being can be expressed as a function, from situations the being is (normally) in, to the probabilities of its giving rise to a person from those situations. We have greater potential when we have one function dominating another.

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moral significance unless it is a person and that there is no important moral difference between a conceptus and a late term foetus. For now it can be argued that the intrinsic moral status o f the foetus changes in direct relation to its changing physical basis. Thus, at least in terms o f its intrinsic properties, an early stage foetus does not have great value. With respect to a highly developed foetus, although it is not a being with full moral rights, its gradually increasing moral significance warrants our treating it, in most circum stances at least, as if it were such a being. Com bining this view with the guardianship view outlined earlier we get the idea that the moral position o f the foetus changes over the course o f pregnancy. At the early stages its moral standing is defined in relational terms, because it is a being with moral significance for the w om an in whose body it develops and who acts as its moral guardian. As the foetus develops physically however its intrinsic moral significance increases. Its moral standing is less and less dependent on its relational properties with the wom an in w hose body it develops and more and more tied to its own intrinsic value. This does not mean, however, that the foetus is ever the moral equivalent o f the woman. H ence in cases where the foetus’ continued existence severely threatens the w om an’s physical or mental survival, her interests should always prevail up until the m om ent o f birth. It does however suggest that late term abortion is morally different from early abortion and that they cannot be justified on the same grounds. On the question o f guardianship, I suggested above that the rationale behind Warren’s defence o f abortion (nam ely that the foetus is not a person), particularly in the context o f the foetus/fish com parison, has the effect o f downplaying the moral significance o f the w om an’s parental responsibility for the present and future well-being o f the foetus. This effect is reinforced by Warren’s claim, which she justifies on the grounds o f a w om an’s right to bodily autonomy, that a decision to abort is morally permissible up until the m om ent o f birth. For now it looks as though the foetus is a potential threat to the w om an’s bodily autonomy up until the m om ent o f birth, rather than a being in relation to whom the woman has a unique bodily and moral connection. In the next section I shall argue that this view is based on a flawed conception o f bodily autonomy. Here I simply want to point out that in pregnancy the assumption o f parental responsibility necessarily involves a certain com m itm ent o f o n e’s body. In other words, the decision to continue a pregnancy (and presumably by seven months som e prior decision has been made) is a decision to assume responsibility (even if only for nine months) for the well-being o f the foetus and this entails providing bodily nurture for it, perhaps even at some bodily risk to yourself. N ow obviously there are limits to this risk. I am not suggesting that wom en have responsibility to the foetus whatever the risk. As I have already indicated, I am also not suggesting that parties other than the woman, for exam ple the medical establishment, or the state-legal apparatus, have a right to determine the limits o f that risk. Like many other feminists, including Warren, I am alarmed by the recent m ovem ents advocating both so-called ‘foetal rights’ and the introduction o f charges o f ‘foetal abuse’ against wom en who do not do what is required to nurture the foetus in the uterus. Further the whole question o f what is ‘required’ for adequate nurture is

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open to much interpretation against w om en’s autonomy as persons. Nevertheless, I think that my accounts o f potentiality, guardianship and responsibility explain why there is a genuine moral requirement upon a woman to protect and nurture a foetus once she has assumed parental responsibility for its future well-being, without that requirement involving any infringement o f her autonomy. In this context it should be noted that Warren’s downplaying o f the question o f responsibility also fails to stress m en’s obligations with respect to a pregnancy. IV. Pregnant Embodim ent and Bodily Autonomy I have argued so far that, at least in the early stages o f its development, the moral standing o f a foetus is dependent upon its relationship with the woman who bears it and who acts as its moral guardian. In terms o f its own intrinsic properties its moral standing is not particularly significant. This is a necessary condition for the permissibility o f abortion, but it is not sufficient. For it fails to explain why the availability o f abortion is necessary for the moral autonom y of women and hence why a restriction on its accessibility violates their autonomy. In this section I attempt to explain and justify this claim. From my discussion it will also become clear why, in order to secure w om en’s autonomy, abortion must be understood as foetal death rather than foetal evacuation. What has emerged so far is that in order to understand the kind o f autonom y that is exercised by wom en in pregnancy and abortion we must be attentive to the moral particularity o f pregnancy. As we have seen there are a number o f different factors which make pregnancy morally unique. To begin with, pregnancy is not simply a biological event with respect to which women are passive. Rather it is an active process and a social process which places women in a situation o f moral responsibility — which I earlier called decision responsibility. This responsibility is due in part to the foetus’ potential moral significance, but it is also due to the fact that the decision to com m it or not to comm it oneself to the existence o f such a future person has far-reaching im plications for the w om an’s own life as well as, possibly, for the lives o f others — for example, the ‘father’ o f the possible future child, other children, relatives, friends and so on. But pregnancy is also morally unique because the physical connection between the woman and the foetus, and the physical processes which occur during pregnancy, give rise to a unique bodily perspective. In what follows I shall draw on a phenom enological account o f pregnant em bodim ent in order to give an account o f the kind o f reflective bodily perspective that emerges out o f the experience o f pregnancy. I shall also suggest that the experience of moral responsibility in pregnancy, which I have detailed above, is mediated by this reflective bodily perspective, which both structures and points to the moral particularity o f the relationship between woman and foetus —especially to the fact that this relationship and the responsibilities it entails cannot be conceived of as extrinsic to the w om an’s subjectivity. I want to make it clear that this phenom enological description is not a description o f the subjective feelings of individual women, but is rather a normative and reflective

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apprehension o f the way in which conscious experience is structured by our (bodily) situations, perspectives and modes o f perception. The phenom enological experience I describe is therefore not meant to be an empirical description o f the way in which all women experience or feel about their pregnancies, since women’s individual bodily perspectives, feelings and experiences depend upon a wide range o f factors, including the cultural, social and historical context in which they live their lives.27 My suggestion is that although in som e ways (for example, biologically) it makes sense to speak o f the foetus as a separate being from the woman, in other ways (for exam ple in terms o f talking o f a conflict o f rights), it makes no sense at all — especially in the early stages o f pregnancy.28 Phenom enologically, the experience o f pregnancy, particularly in the early stages, is unique in the sense that it defies a sharp opposition between self and other, between the inside and the outside o f the body. From the perspective o f the woman, there is no clear-cut boundary between herself and the foetus, between her body boundaries and the body boundaries o f the foetus. The foetus, to the extent that it is experienced as part o f the w om an’s body, is also experienced as part o f her self, but as a part that is also other than herself. On the one hand it is another being, but it is another being growing inside her body, a being whose separateness is not fully realised as such by her. This is the case even with an unwanted pregnancy. The uniqueness and intimacy o f this kind o f relationship, one where the distinction between self and other is blurred, suggests that the welfare o f the foetus, at least early on, is not easily separable from that o f the woman. The foetus is not simply an entity extrinsic to her which happens to be developing inside her body and which she desires either to remove or to allow to develop. It is a being, both inseparable and yet separate from her, both part o f and yet soon to be independent from her, whose existence calls into question her own present and future identity. The changing phenom enology o f pregnancy also concurs with the account I have given of foetal status. For it seems to me that one o f the main reasons for the experience I have described is that in early pregnancy, although the w om an’s body is undergoing massive changes, the foetus itself is not very physically developed. The foetus’ separateness is thus neither physically well established nor is it felt as such by the woman. W hat happens as pregnancy continues is that, as the foetus develops physically, a triple process occurs. Firstly, from the perspective o f the woman, the foetus becom es more and more physically differentiated from her as her own body boundaries alter. Secondly, this gradual physical differentiation (which becom es very pronounced as soon as the foetus 27

28

My account here builds on psychoanalytic insights into the mother-child relation, on some of the descriptions of pregnancy and maternity in the work of Julia Kristeva, on Iris Young’s phenomenology of pregnant embodiment, and on my own a posteriori reconstructions. See Julia Kristeva, ‘Motherhood According to Giovanni Bellini’ in Desire in Language (Oxford: Blackwell, 1980) and ‘Stabat Mater’ in T. Moi (ed.), The Kristeva Reader (Oxford: Blackwell, 1986); Iris Marion Young, ‘Pregnant Embodiment: Subjectivity and Alienation’, The Journal of Medicine and Philosophy 9 (1984) pp. 45-62. The rights-based model has also been criticised on different but related grounds by other feminists. See Janet Farrell Smith, ‘Rights-conflict, Pregnancy and Abortion’ in Carol Gould (ed.), Beyond Domination (Totowa, NJ: Rowman & Allanheld, 1984) pp. 265273.

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starts moving around — perhaps explaining why ‘quickening used to be considered morally significant) is paralleled by and gives rise to a gradual psychic differentiation, in the experience o f the woman, between herself and the foetus. In other words, as the foetus’ body develops it seems to becom e less and less a part o f the woman and o f her body although, as psychoanalysis reminds us, the psychic experiences o f unity and differentiation continue to resonate for both mother and child right through infancy and early childhood. Thirdly, physical and psychic differentiation are usually accom panied by an increasing em otional attachment of the woman to the foetus, an attachment which is based both in her physical connection with the foetus and in an anticipation o f her future relationship with a separate being who is also intimately related to her. From the reflective perspective o f the w om an the foetus thus has a double and ambivalent status. On the one hand, it is experienced as interior to her own subjectivity, and this sense o f interiority is grounded in the bodily connection between the woman and the foetus. On the other hand, this experience o f interiority and connection is interrupted by an awareness that, if the pregnancy continues, this being which is now a part o f her will becom e a separate being for whose welfare she is morally responsible. But this awareness itself arises in part from the w om an’s bodily experiences —■ for example, from the changes to her body shape and from feelings o f the strangeness o f her body to her — which remind her o f the other being which is growing within her. I think it is this double character o f the foetus’ bodily and moral relationship to the wom an that explains both why questions o f responsibility are central to the experience o f pregnancy and why the right o f determination over the fate of the foetus is essential for a w om an’s autonomy.29 I think this reflective perspective also explains why it is a mistake to construe bodily autonomy in pregnancy and abortion sim ply as a matter o f preserving the integrity of one’s body boundaries. It is this kind o f understanding o f bodily

29 At this point I would like to respond to an objection which is often made against the view I have proposed here. It could be argued that the woman’s experience of the foetus as part of herself and as interior to her subjectivity is simply mistaken. So why should any moral weight be given to this experience? How is it different, for example, from the experience of a slave-owner who regards his/her slaves as a part of him/herself and thinks that because of this he/she has a right to determine their fate? My response to this suggestion is that these cases are completely disanalogous, and for two reasons. Firstly, I have argued that a necessary condition for the permissibility of abortion is that the foetus, especially in the early stages of pregnancy, has little moral value in and of itself, although it may have a great deal of value for the woman in whose body it develops. This is not a merely arbitrary claim, like the claim of the slave-owner who may think that his/her slaves have little moral value in and of themselves. Rather it is justified by the fact that the foetus simply does not yet have the capacities which ground the moral worth of persons, and by the fact that the foetus' possible potential for personhood has little significance until those capacities are close to being actualised. But, secondly, this objection ignores what I have been insisting on throughout this article, namely that the relationship of the woman to the foetus is morally unique. It is not a relationship of domination and subordination and inhuman ownership, as in the case of the slave-owner. Rather, it is a relationship in which one human being grows and develops inside the body of another, and in which the moral significance of the foetus is in part bound up with its significance for the woman. The moral particularity of this situation, in other words, is grounded in the nature of the bodily connection between woman and foetus. The woman’s sense of the foetus as a part of herself is thus not arbitrary. It arises, as I have

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autonomy which seems to inform the views o f T hom son and Warren, at least in her early paper, who construe the right to bodily integrity along the lines o f a property-right. The idea seems to be that a wom an has a right to preserve the integrity of her body boundaries, and to control what happens in and to her body, in the same way as she has a right to dispose o f her property as she sees fit, and that the denial to women o f access to abortion m ight be said to be akin to a system o f coverture. I think this idea is quite explicit in such fem inist slogans as ‘Keep your filthy laws off m y body’ and in som e o f T hom son’s metaphors — for example, the metaphor of the body as a house. N ow it seem s to me that underlying this view o f the body is the mistaken idea that I am the owner o f my body and my body parts and that, as their owner, I can dispose o f them, use them, or contract them out for use as I see fit. This view o f the body often underlies defences o f surrogacy but I think it is also evident in T hom son’s assumptions about pregnancy. In her argument pregnancy emerges as a kind o f contract between the w om an and the foetus such that she contracts with it for it to use her body for the required period until it is able to survive without her. Thus in T hom son’s violinist example the idea seem s to be that the unwanted foetus is attempting to use a w om an’s body without her having contracted with it to do so and it is this which makes abortion permissible. A sim ilar kind o f presumption seems to be operating in Warren’s view that the foetus represents a potential threat to the w om an’s bodily autonom y up to the m om ent o f birth. For the remainder o f this article I shall argue that this conception o f bodily autonomy, and the rights-based m odel which provides the framework for it, are seriously flawed. My first set o f objections to this way o f defending abortion is that it misrepresents both the nature o f pregnancy and the wom an-foetus relationship. As a result, it is unable to com e to terms with the question o f moral responsibility in pregnancy. The second and connected objection is that it justifies the dem and for abortion in terms of a right to an evacuated uterus, rather than a right to autonom y with respect to o n e’s own life. This misrepresents the nature o f the abortion decision. These two objections are explained in the next two subsections. A. Bodily Autonomy, Subjectivity and Responsibility It seems that underlying the property-contract model o f bodily autonom y is a very inert view o f pregnancy in which pregnancy is represented as a purely biological process with respect to which w om en are passive. It is as though, having agreed to the terms o f the contract, the wom an then simply allows her

2» continued . . . tried to show, from her own reflective bodily perspective and from the kind of moral reflection to which pregnancy gives rise. Certainly it is possible to think up all kinds of examples in which the relationship between the woman and the foetus might have been different — as in Thomson’s examples. But my point is that these examples cannot give us an adequate understanding of the moral complexities of the issues raised by pregnancy and abortion precisely because they overlook the context out of which these complexities arise, namely the bodily and moral connection between the woman and the foetus.

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body to be used by the foetus. But this view o f pregnancy blinds us to the fact that the relationship between the wom an and the foetus is a special relationship o f a very particular nature. The foetus is not a stranger contracting with the woman for use o f her body but another, not yet separate, being growing within her body, a being implicated in her own sense o f self and whose very existence places her in a situation of moral responsibility. However, if we take seriously both the issue o f responsibility in pregnancy and the kind o f reflective bodily perspective that I have argued emerges from the process o f pregnancy, then pregnancy seems to defy the making o f a sharp distinction between a passive, unconscious, biological process and an active, conscious, rational process. To a large extent the biological processes occurring in a woman's body are beyond her control. Nevertheless, as I have already argued, these processes are always mediated by the cultural meanings o f pregnancy, by the wom an’s personal and social context, and by the way she constitutes herself in response to these factors through the decisions she makes. Thus coming to terms with pregnancy and its im plications, taking responsibility o f whatever kind for the future o f the foetus, are the activities o f an autonom ous moral agent. Bodily autonom y in pregnancy and abortion thus cannot be construed simply as the right to bodily integrity. Rather it is a question o f being able to shape for oneself an integrated bodily perspective, a perspective by means o f which a woman can respond to the bodily processes which she experiences in a way with which she identifies, and which is consistent with the decision she makes concerning her future moral relationship with the foetus. To think that the question o f autonom y in abortion is just a question about preserving the integrity o f on e’s body boundaries, and to see the foetus merely as an occupant o f the w om an’s uterus, is thus to divorce w om en’s bodies from their subjectivities. Ironically it com es close to regarding w om en’s bodies sim ply as foetal containers — the very charge which m any feminists have levelled against the ‘foetal rights’ movement. If, however, we see our subjectivities as constituted through the constitution o f our bodily perspectives so that, following MerleauPonty, we see the body as our point o f view upon the world, then my body is no more my property than I m yself am my own property.30 Rather my body is my mode o f being-in-the-world. Consequently changes to my body or to my perceptions of my body-image must affect my relation to the world. The experience o f pregnant embodim ent, that is, the gradual differentiation and developm ent from within her own body o f another being which is now a part o f herself, thus affects a w om an’s mode o f being-in-the-world both physically and morally and, as a consequence, re-shapes her sense o f self. She is now no longer just herself but herself and another, but this other is not yet separate from herself. It is because o f this psychic and bodily connectedness between the wom an and the foetus that in pregnancy questions about the fate o f the foetus cannot be separated out from the issue o f a w om an’s right to self-determination.

30 I am drawing here on Maurice Merleau-Ponty’s discussion of the body in The Phenomenology of Perception (1945), translated by Colin Smith (London: Routledge, 1962).

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If, as I have argued, the early stage foetus is both morally insignificant (in terms of its own intrinsic properties), and its identity and very existence are as yet indistinguishable from that o f the w om an, it becom es nonsensical to speak o f a conflict o f rights between them because we cannot talk about the needs and rights o f the foetus in abstraction from those o f the w om an.31 The idea o f such a conflict only makes any sense later in pregnancy where the foetus is physically well developed and differentiated from the wom an and where this physical basis now grounds a definite and significant moral value. C om bining my earlier discussion o f the moral insignificance o f the early stage foetus with my claim that the early stage foetus is phenom enologically and psychically experienced by the woman as both part and not part o f herself, thus grounds the moral permissibility o f securing its death. At present the foetus is in itself a morally insignificant part o f herself but it is a part o f herself which, if the pregnancy continues, will becom e a separate, independent and significant being, for whose future existence she will be required to take parental responsibility and to whom she will becom e increasingly em otionally attached. W hat the abortion decision involves is a decision that this part o f herself should not become a being in relation to w hom such questions o f parental responsibility and em otional attachment arise. In other words abortion is not a matter o f wanting to kill this particular being , which is, after all, as yet indistinguishable from oneself. It is rather a matter o f not wanting there to be a future child, so intimately related to oneself, for which one either has to take responsibility or give up to another. Because property-contract models o f bodily autonom y are inattentive to the phenom enological experience o f pregnancy and ignore questions o f moral responsibility they misrepresent the nature o f this decision. For, if the dem and for abortion is just the dem and to control on e’s own body and use its parts as one sees fit, then abortion cannot involve the right to choose whether or not to bring a child into existence but only the right to evacuate a foetus from on e’s body. W hile Thom son and Warren explicitly acknowledge this as an im plication o f their account of bodily autonomy, they do not defend the position to which they are committed. In her discussion o f abortion in Ethics and Human Reproduction Christine Overall does, however, attempt to defend this position even though she is explicitly critical o f a property-contract view o f w om en’s bodies. My argument is that such a position is inconsistent with a concern for w om en’s autonom y.32 In what follows 1 shall develop this argument via a critical analysis o f Overall’s discussion. Overall argues that abortion consists o f two conceptually and morally distinct events which, though inseparable in current gynaecological practice may yet, 31

32

This does not, of course, mean that we cannot talk of what is physically harmful or beneficial to the development of the foetus. Anne Donchin has expressed similar worries about the implications of Overall’s position. See her review essay ‘The Growing Feminist Debate Over the New Reproductive Technologies’, Hypatia 4 (1989) pp. 136-149.

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with the advancing state o f technology, becom e separable. These are: ( 1) the evacuation o f the foetus from the uterus, and (2) the destruction o f the foetus. O veralls argument is that while ( 1) is morally permissible, ( 2 ) is not. In other words, if the foetus could be kept alive in som e kind o f incubator or if some form o f foetal transplant and adoption were possible —that is, the evacuation o f the foetus from on e’s w om an’s uterus and its im plantation in the uterus of another — then such procedures would be morally required. Overall’s argument, which is very similar to a double-effect argument, involves a reconstrual of the alleged rights conflict in abortion. Where the original formulation is a conflict between (a) the foetuses’ right to life, and (b) a w om an’s right to bodily autonomy, she reconstrues this, in terms o f an absence o f rights, as a conflict between (c) the pregnant woman (or anyone else, e.g. a physician) who has no right to kill the embryo/foetus, and (d) the embryo/foetus which has no right to occupancy o f its mother’s (or anyone else’s) uterus. Overall’s claim is that the right to bodily autonomy reconstrued as (d) does not entail (2). (d) involves a simple taking-over o f T hom son’s formulation without further argumentation. Overall’s main argument in defence o f (c) is an appeal to the foetus’ potential personhood, but appeal’ is all it is because Overall does not discuss the criteria for personhood, nor explain how we should understand the claim that foetuses are potential persons. In addition she sim ply assumes that foetuses at all stages o f developm ent have the same moral significance.33 Overall is aware that her position gives rise to m any difficult questions: ought we to save all aborted foetuses?; should we try to adopt them out were that possible?; what if foetal adoption caused more suffering for women or for foetuses? She attempts to avoid some o f these and to resolve the conflict between conflicting rights (c) and (d) by arguing that they apply to different periods o f pregnancy. Hence right (d) may be regarded as overriding in early pregnancy (with abortion then resulting in the foreseeable but unintended death o f the foetus), whereas right (c) may be regarded as overriding in late pregnancy. 33

Overall offers three supposedly analogous cases which are supposed to back up this appeal and to show why the right to bodily autonomy, reconstrued as (d), does not entail a womans right to demand (2), that is, the destruction of the foetus. The problem with these cases however is that Overall fails to make any moral discriminations between different stages of foetal development. The cases are as follows: (A) If an aborted foetus lives we have no right to kill it, although we are not morally obliged to keep it alive. Here Overall seems to be appealing to the acts and omissions doctrine which in this context I would reject on compassionate grounds. If the foetus is likely to die and will presumably suffer more if simply allowed to die (which is pretty certain if we are talking about an abortion prior to twenty weeks), it seems morally preferable that we kill it. (B) We have no right to kill premature babies in a case, for example, where the mother might have wanted an abortion but was prevented from obtaining one. But if there is no moral difference between a twenty six week premature baby and a twenty six week in utero foetus, it should be just as morally wrong to kill the foetus as the baby. Overall’s argument here appeals to the claim that all foetuses, at whatever stage of development, are morally indistinguishable. I have already argued against this claim and have agreed that the killing of a late term foetus is morally different from killing an early foetus, although I have also indicated that I would not rule it out a priori, for example, in cases where it is unlikely it would ever acquire the complex physical basis required for personhood. I would agree though with Overall that were it possible to abort a late term foetus alive, in most cases

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While I agree with Overall that, in most cases, it is morally indefensible to demand the death o f a late term foetus, the problem with her argument is that she offers no reasons as to why this should be the case, nor does she offer an explanation as to why, if, as she thinks, there is no significant difference in moral standing between a conceptus and a late term foetus, the foreseeable consequence o f the foetus’ death should be any more allowable early in pregnancy than later on. As I have shown, however, there are a number o f reasons why there is a morally significant difference between a conceptus and a late term foetus and it is this difference which makes foetal death in early abortions morally permissible. I conclude then that Overall’s defence o f abortion as foetal evacuation fails. More importantly however, Overall’s failure to make any significant moral discriminations between different stages o f foetal developm ent renders her ‘solution’ to the conflict between (c) and (d) arbitrary and far too contingent upon what is technologically feasible. For were it to becom e possible to evacuate an early stage foetus from the uterus o f one wom an and im plant it into the uterus o f another or to rear it in an incubator, Overall would be committed to the moral desirability o f this procedure. N o t only that, she would be comm itted to arguing that such a procedure, rather than abortion, is morally required. For the reasons outlined in this article, it seems to me disturbing that this outcom e should seem to follow from a fem inist defence o f abortion. Apart from oversimplifying the complex issue o f foetal status, this position ignores the fact that much more is at stake in the demand for abortion than the m isconceived dem and to dispose o f or use one’s own body parts as one sees fit. W hat is at issue is w om en’s moral autonomy, an autonom y which, because o f the specificity o f w om en’s embodiment, must include autonom y with respect to the fate o f any foetus developing within her body. Because o f the connection between the foetus, which is both part and not part o f herself, and the w om an’s moral and bodily subjecthood, to allow the fate o f the foetus to be settled by what is or is not technologically feasible once again removes from wom en what the availability of abortion helps make possible — the right to autonom ous moral agency with respect to on e’s own life.3

33 continued . . . where the foetus was likely to survive and become a healthy infant the mother would not have the right to kill it. Having said that I would nevertheless take issue with Overalls claim that there is no moral difference between a twenty six week premature baby and a twenty six week in utero foetus. Her claim assumes that birth has no moral significance. This is an assumption which I have already contested. (C) At the other end of the process, Overall claims that neither foetus nor embryo is the property of the parents. Thus, she argues, just as parents involved in in vitro fertilization programmes should not have the right to demand the destruction of embryos, neither do women have the right to secure the death of the foetus. While I would agree with Overall that neither conceptus nor foetus is the property of its parents, I disagree that it is only on such grounds that we might regard it as their right to determine its fate. I don't want here to tackle the issue of the ‘disposal' of in vitro fertilization embryos and/or foetal tissue. Suffice it to say that Overall's argument once again trades on the unargued claim that foetuses at all stages of development have intrinsic moral worth as ‘potential’ persons.

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V. Conclusion: Metaphors, Experience and Moral Thinking I shall conclude this discussion with some brief reflections on the methodological implications of the analysis I have given. A survey of the philosophical literature on abortion, including some of the feminist philosophical literature, shows that philosophical thinking on this topic has been dominated by bizarre metaphors and fantastic examples (Warren’s fish, Tooley’s kittens, Thomson’s violinists, people-seeds, houses and so on) and has given rise to abstruse metaphysical speculations about the nature of personal identity (Parfit). These examples and speculations have undoubtedly served to question certain common unreflective prejudices and to highlight the philosophical ramifications and complexities of some of the questions raised by abortion. Unfortunately they have also contributed to the representation of pregnancy as a mere event which simply takes over women’s lives and with respect to which women are passive. In addition, they have focused philosophical and moral reflection away from the contexts in which deliberations about abortion are usually made and away from the concerns and experiences which motivate those involved in the processes of deliberation. The result is that philosophical analyses of abortion often seem beside the point, if not completely irrelevant, to the lives of the countless women who daily not only have to make moral decisions about abortion but, more importantly, who often face serious risks to their lives in contexts where abortion is not a safe and readily accessible procedure. While I do not pretend to have addressed the social, religious, political and legal obstacles which give rise to this abhorrent situation, I do hope to have explained why the morality of abortion is not simply or even primarily about questions concerning personhood and foetal status but more fundamentally is about women’s self-determination.

N.B. A lso published in Paul A. K om esaroff (ed .), Troubled Bodies: C r itic a l Perspectives on Postmodernism, M edical Ethics and the Body , Melbourne University Press, 1995 , pp. 3 8 - 6 1 .

[8] FETAL IMAGES: THE POWER OF VISUAL CULTURE IN THE POLITICS OF REPRODUCTION

ROSALIND POLLACK PETCHESKY

Now chimes the glass, a note of sweetest strength, It clouds, it clears, my utmost hope it proves, For there my longing eyes behold at length A dapper form, that lives and breathes and moves. Goethe, Faust (Ultimately) the world of 'being" can function to the exclu­ sion of the mother. No need for mother - provided that there is something of the maternal: and it is the father then who acts a s - is - t h e mother. Either the woman is passive; or she doesn't exist. What is left is unthinkable, unthought of. She does not enter into the oppositions, she is not coupled with the father (who is coupled with the son). Hélène Cixous, Sorties

In the mid-1980s, w ith the United States Congress still deadlocked over the abortion issue and the Supreme Court having tw ice reaffirmed "a woman's right to choose,"1 the political attack on abortion rights m oved further into the terrain of m ass culture and imagery. Not that the "prolife movement" has abandoned conven­ tional political arenas; rather, its defeats there have hardened its com m itm ent to a more long-term ideological struggle over the sym bolic meanings of fetuses, dead or alive. Antiabortionists in both the U nited States and Britain have long applied the principle that a picture of a dead fetus is worth a thou­ sand words. Chaste silhouettes of the fetal form, or voyeuristicnecrophilic photographs of its remains, litter the background of

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any abortion talk. These still images float like spirits through the courtrooms, where lawyers argue that fetuses can claim tort liability; through the hospitals and clinics, where physicians welcom e them as "patients", and in front of all the abortion centers, legislative com m ittees, bus terminals, and other places that "right-to-lifers" haunt. The strategy of antiabortionists to make feted personhood a self-fulfilling prophecy by making the fetus a public presence addresses a visually oriented culture. M eanwhile, finding "positive" im ages and sym bols of abortion hard to imagine, fem inists and other prochoice advocates have all too readily ceded the visual terrain. Beginning w ith the 1984 presidential campaign, the neoconser­ vative Reagan administration and the Christian Right accelerated their use of television and video imagery to capture political discourse-an d power.2 Along w ith a new series of "Ron and Nan­ cy" commercials, the Reverend Pat Robertson's "700 Club" (a kind of right-wing talk show), and a resurgence of Good versus Evil kiddie cartoons, American television and video view ers were bombarded w ith the new est "prolife" propaganda piece, The Silent Scream. The Silent Scream marked a dramatic shift in the contest over abortion imagery. W ith formidable cunning, it translated the still and by-now stale im ages of fetus as "baby" into real-time video, thus (1) giving those images an immediate interface with the elec­ tronic media; (2) transforming antiabortion rhetoric from a mainly religious/m ystical to a m edical/technological mode; and (3) bring­ ing the fetal image "to life." On major network television the fetus rose to instant stardom, as The Silent Scream and its impresario, Dr. Bernard Nathanson, were aired at least five different tim es in one month, and one w ell-know n reporter, holding up a fetus in a jar before 10 m illion view ers, announced: 'This thing being aborted, this potential person, sure looks like a baby!" This statement is more than just propaganda; it encapsulates the "politics of style" dom inating late capitalist culture, transforming "surface impressions" into the "whole message."3 The cult of ap­ pearances not only is the defining characteristic of national politics in the United States, but it is also nourished by the language and techniques of photo/video imagery. Aware of cultural trends, the current leadership of the antiabortion movem ent has made a con­ scious strategic shift from religious discourses and authorities to m edicotechnical ones, in its effort to w in over the courts, the

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legislatures, and popular hearts and m inds. But the vehicle for this shift is not organized m edicine directly but m ass culture and its diffusion into reproductive technology through the video display terminal. My interest in this essay is to explore the overlapping boun­ daries between media spectacle and clinical experience w hen pregnancy becom es a moving picture. In what follow s, I attempt to understand the cultural meanings and impact of images like those in The Silent Scream. Then I exam ine the effect of routine ultrasound imaging of the fetus not only on the larger cultural climate of reproductive politics but also on the experience and consciousness of pregnant w om en. Finally, I shall consider som e implications of "fetal images" for fem inist theory and practice.

D E C O D IN G T H E S IL E N T S C R E A M

Before dissecting its ideological m essage, I should perhaps describe The Silent Scream for readers w ho som ehow m issed it. The film's actual genesis seem s to have been an article in the New England Journal o f Medicine by a noted bioethicist and a physician, claiming that early fetal ultrasound tests resulted in "maternal bon­ ding" and possibly "fewer abortions." According to the authors, both affiliated w ith the National Institutes of Health, upon view ­ ing an ultrasound image of the fetus, "parents [that is, pregnant women] probably w ill experience a shock of recognition that the fetus belongs to them" and w ill more likely resolve "ambivalent" pregnancies "in favor of the fetus." Such "parental recognition of the fetal form," they wrote, "is a fundam ental elem ent in the later parent-child bond."4 Although based on tw o isolated cases, without controls or scientific experim entation, these assertions stimulated the imagination of Dr. Bernard Nathanson and the Na­ tional Right-to-Life Committee. The resulting video production w as intended to reinforce the visual "bonding" theory at the level of the clinic by bringing the live fetal image into everyone's living room. Distributed not only to television networks but also to schools, churches, state and federal legislators, and anyone (in­ cluding the opposition) w ho wants to rent it for fifteen dollars, the video cassette provides a mass com m odity form for the "prolife" message.

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The Silent Scream purports to show a medical event, a real-time ultrasound imaging of a twelve-week-old fetus being aborted. What w e see in fact is an image of an image of an image; or, rather, w e see three concentric frames: our television or VCR screen which in turn frames the video screen of the filming studio, which in turn frames a shadowy, black-and-white, pulsating blob: the (alleged) fetus. Throughout, our response to this set of images is directed by the figure of Dr. N athanson-sober, bespectacled, lean­ ing professorially against the d esk -w h o functions as both medical expert and narrator to the drama. (Nathanson is in "real life" a prac­ ticing obstetrician-gynecologist, ex-abortionist, and well-known an­ tiabortion crusader.) In fact, as the film unfolds, w e quickly realize that there are two texts being presented here sim ultaneously-a m edical text, largely visual, and a moral text, largely verbal and auditory. Our medical narrator appears on the screen and an­ nounces that what w e are about to see com es to us courtesy of the "dazzling" new "science of fetology" w hich "exploded in the medical community'' and now enables us to w itness an abortion-"from the victim's vantage point." At the same tim e w e hear strains of organ m usic in the background, om inous, the kind w e associate w ith im­ pending doom. As Nathanson guides his pointer along the video screen, "explaining" the otherwise inscrutable m ovem ents of the image, the disjunction betw een the tw o texts becom es increasing­ ly jarring. We see a recognizable apparatus of advanced medical technology, displaying a film ic image of vibrating light and shaded areas, interspersed w ith occasional scenes of an abortion clinic operating table (the only view of the pregnant wom an w e get). This action is m oderated by som eone w ho "looks like" the paternal-medical authority figure of the proverbial aspirin com ­ mercial. He occasionally interrupts the film ed events to show us clinical m odels of embryos and fetuses at various stages of developm ent. M eanwhile, however, what w e hear is more like a m edieval morality play, spoken in standard antiabortion rhetoric. The form on the screen, w e are told, is "the living unborn child," "another human being indistinguishable from any of us." The suc­ tion cannula is "moving violently" toward "the child"; it is the "lethal weapon" that w ill "dismember, crush, destroy," "tear the child apart,” until only "shards" are left. The fetus "does sense ag­ gression in its sanctuary," attempts to "escape" (indicating more rapid m ovem ents on the screen), and finally "rears back its head"

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in "a silent scream"-all to a feverish pitch of musical accompani­ ment. In case w e question the nearly total absence of a pregnant woman or of clinic personnel in this scenario, Nathanson also "in­ forms" us that the woman who had this abortion was a "feminist," who, like the young doctor w ho performed it, has vowed “never again"; that wom en who get abortions are themselves exploited "victims" and "castrated"; that many abortion clinics are "run by the mobs." It is the verbal rhetoric, not of science, but of "Miami Vice." Now, all of this raises important questions about what one means by "evidence," or "medical information," because the ultra­ sound image is presented as a document testifying that the fetus is "alive," is "human like you or me," and "senses pain." The Silent Scream has been sharply confronted on this level by panels of op­ posing medical experts, New York Times editorials, and a Planned Parenthood film. These show, for example, that at twelve weeks the fetus has no cerebral cortex to receive pain impulses; that no “scream" is possible without air in the lungs; that fetal movements at this stage are reflexive and without purpose; that the image of rapid frantic movement was undoubtedly caused by speeding up the film (camera tricks); that the size of the image w e see on the screen, along with the model that is continually displayed in front of the screen, is nearly twice the size of a normal twelve-week fetus, and so forth.5 Yet this literal kind of rebuttal is not very useful in helping us to understand the ideological power the film has despite its visual distortions and verbal fraud. When w e locate The Silent Scream where it belongs, in the realm of cultural representation rather than of medical evidence, w e see that it embeds ultrasound imaging of pregnancy in a moving pic­ ture show. Its appearance as a medical document both obscures and reinforces a coded set of messages that work as political signs and moral injunctions. (As w e shall see, because of the cultural and political context in which they occur, this may be true of ultra­ sound images of pregnancy in general.) The purpose of the film is obviously didactic: to induce individual wom en to abstain from having abortions and to persuade officials and judges to force them to do so. Like the Great Communicator w ho charms through lies, the medical authority figure-paternalistic and technocratic at the same tim e-d elivers these messages less by his words than by the power of his image and his persona. As with any visual image, The Silent Scream relies on our

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predisposition to "see" what it wants us to "see" because of a range of influences that come out of the particular culture and history in which we live. The aura of medical authority, the allure of technology, the cumulative impact of a decade of fetal im ages-on billboards, in shopping center m alls, in scien ce fiction blockbusters like 2001: A Space Odyssey - a ll rescue the film from utter absurdity; they make it credible. T h e fetal form" itself has, within the larger culture, acquired a symbolic import that con­ denses within it a series of losses-from sexual innocence to com­ pliant women to American imperial might. It is not the image of a baby at all but of a tiny man, a homunculus. The most disturbing thing about how people receive The Silent Scream, and indeed all the dominant fetal imagery, is their ap­ parent acceptance of the image itself as an accurate representation of a real fetus. The curled-up profile, with its enlarged head and finlike arms, suspended in its balloon of amniotic fluid, is by now so familiar that not even most feminists question its authenticity (as opposed to its relevance). I went back to trace the earliest ap­ pearance of these photos in popular literature and found it in the June 1962 issue of Look (along with Life, the major masscirculating "picture magazine" of the period). It was a story publicizing a new book, The First Nine Months of Life, and it featured the now-standard sequel of pictures at one day, one week, seven weeks, and so forth.6 In every picture the fetus is solitary, dangling in the air (or its sac) with nothing to connect it to any life-support system but "a clearly defined umbilical cord." In every caption it is called "the baby" (even at forty-four days) and is referred to as "he"-until the birth, that is, when "he" turns out to be a girl. Nowhere is there any reference to the pregnant woman, except in a single photograph at the end showing the newborn baby lying next to the mother, both of them gazing off the page, allegedly at "the father." From their beginning, such photographs have represented the fetus as primary and autonomous, the woman as absent or peripheral. Fetal imagery ep itom izes the distortion inherent in all photographic images: their tendency to slice up reality into tiny bits wrenched out of real space and time. The origins of photography can be traced to late-nineteenth-century Europe's cult of science, itself a by-product of industrial capitalism. Its rise is inextricably linked with positivism, that flawed epistemology

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that sees "reality" as discrete bits of empirical data divorced from historical process or social relationships.7 Similarly, fetal imagery replicates the essential paradox of photographs whether moving or still, their "constitutive deception" as noted by postmodernist critics: the appearance of objectivity, of capturing "literal reality." As Roland Barthes puts it, the "photographic message" appears to be "a message without a code." According to Barthes, the ap­ pearance of the photographic image as "a mechanical analogue of reality," without art or artifice, obscures the fact that that image is heavily constructed, or "coded"; it is grounded in a context of historical and cultural meanings.8 Yet the power of the visual apparatus's claim to be "an unreason­ ing machine" that produces "an unerring record" (the French word for "lens" is I'objectif) remains deeply embedded in Western culture.9 This power derives from the peculiar capacity of photo­ graphic images to assume two distinct meanings, often simultane­ ously: an empirical (informational) and a mythical (or magical) meaning. Historically, photographic imagery has served not only the uses of scientific rationality-as in medical diagnostics and record keeping-and the tools of bureaucratic rationality-in the political record keeping and police surveillance of the state.10 Photographic imagery has also, especially with the "democratiza­ tion" of the hand-held camera and the advent of the family album, become a magical source of fetishes that can resurrect the dead or preserve lost love. And it has constructed the escape fantasy of the movies. This older, symbolic, and ritualistic (also religious?) func­ tion lies concealed within the more obvious rationalistic one. The double text of The Silent Scream, noted earlier, recapitulates this historical paradox of photographic images: their simultaneous power as purveyors of fantasy and illusion yet also of "objectivist 'truth.'"11 When Nathanson claims to be presenting an abortion from the "vantage point of the [fetus]," the image's appearance of seamless movement through real tim e—and the technologic allure of the video box, connoting at once "advanced medicine" and "the news"—render his claim "true to life." Yet he also purveys a myth, for the fe tu s-if it had any vantage p o in t-co u ld not possibly ex­ perience itself as if dangling in space, without a woman's uterus and body and bloodstream to support it. In fact, every image of a fetus w e are shown, including The Silent Scream, is viewed from the standpoint neither of the fetus nor of

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the pregnant woman but of the camera. The fetus as w e know it is a fetish. Barbara Katz Rothman observes that "the fetus in utero has become a metaphor for 'man' in space, floating free, attached only by the umbilical cord to the spaceship. But where is the mother in that metaphor? She has become empty space."12 Inside the futurizing spacesuit, however, lies a much older image. For the autonomous, free-floating fetus merely extends to gestation the Hobbesian view of born human beings as disconnected, solitary individuals. It is this abstract individualism, effacing the pregnant woman and the fetus's dependence on her, that gives the fetal im­ age its symbolic transparency, so that w e can read in it our selves, our lost babies, our mythic secure past. Although such receptions of fetal images may help to recruit antiabortion activists, among both wom en and men, denial of the womb has more deadly consequences. Zoe Sofia relates the film 2001: A Space Odyssey to "the N ew Right's cult of fetal personhood," arguing that "every technology is a reproductive technology": "in science fiction culture particularly, technologies are perceived as modes of reproduction in themselves, according to perverse myths of fertility in which man replicates himself without the aid of woman." The "Star Child" of 2001 is not a living organic being but "a biom echanism ,. . . a cyborg capable of living unaided in space." This "child" poses as the symbol of fertility and life but in fact is the creature of the same technologies that bring cosmic extermination, which it alone survives. Sofia sees the same irony in “the rightwing movement to protect fetal life" while it plans for nuclear war. Like the fetal-baby in 2001, "the pro-life fetus may be a 'special ef­ fect' of a cultural dreamwork which displaces attention from the tools of extermination and onto the fetal signifier of extinction itself." To the extent that it diverts us from the real threat of nuclear holocaust and comes to represent the lone survivor, the fetal image signifies not life but death.13 If the fetus-as-spaceman has become inscribed in science fiction and popular fantasy, it is likely to affect the appearance of fetal im­ ages even in clinical contexts. The vantage point of the male onlooker may perhaps change how women see their own fetuses on, and through, ultrasound imaging screens. The Silent Scream bridges these two arenas of cultural construction, video fantasyland and clinical biotechnics, enlisting medical imagery in the service of mythic-patriarchal messages. But neither arena, nor the

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film itself, m eets a totally receptive field. P regnant w o m en res­ p o n d to th ese im ages out of a v ariety of concrete situations a n d in a variety of com plex w ays.

OBSTETRICAL IMAGING AND MASCULINE/VISUAL CULTURE W e have seen th e do m in an t view of th e fetus th a t ap p ears in still a n d m oving pictures across th e m ass-cultural landscape. It is one w h e re th e fetus is not only "already a baby," b u t m o r e - a "baby m an," an autonom ous, atom ized m ini-space hero. T his im age has no t su p planted the one of th e fetus as a tiny, helpless, suffering creatu re b u t rath e r m erged w ith it (in a w ay th at u n com fortably rem in d s one of a n o th e r fam ous im m o rtal baby). W e should n o t be surprised, then, to find th e social relations of o b s te tric s -th e site w h e re ultraso u n d im aging of fetuses goes o n d a ily -in filtra te d by such w idely diffused im ages. Along w ith th e external political a n d cu ltu ral pressures, trad i­ tio n a l p a tte rn s e n d e m ic to th e m a le -d o m in a te d p ra c tic e of obstetrics help d eterm in e th e c u rre n t clinical view of th e fetus as "patient," separate a n d a u to n o m o u s from th e p reg n a n t w om an. T hese p a tte rn s direct th e practical applications of n e w rep ro d u c ­ tive technologies m ore to w a rd enlarging clinicians' control over rep ro d u ctiv e processes th a n to w a rd im proving h e a lth (w om en's or infants'). D e sp ite th e ir b e n e fits fo r in d iv id u a l w o m e n , a m ­ niocentesis, in v itro fertilization, electro n ic fetal m onitoring, ro u tin e cesarean deliveries, ultraso u n d , a n d a range of heroic "fetal therapies" (both in u tero an d ex utero) also h av e th e effect of carv­ ing o u t m ore an d m ore space/tim e for obstetrical "m anagem ent" of pregnancy. M eanw hile, th e y h av e n o t b e e n sh o w n to low er infant a n d p erinatal m ortality/m orbidity, a n d th e y divert social resources from epidem iological research into th e causes of fetal dam age.14 But th e p resu m p tio n of fetal "autonom y" ("patienthood" if n o t "personhood") is not a n inevitable re q u ire m e n t of th e technologies. R ather, th e technologies tak e on th e m eanings a n d uses th e y do because of th e c u ltu ral clim ate of fetal im ages a n d th e politics of hostility to w ard p reg n an t w o m e n a n d abortion. As a result, th e p reg n an t w o m an is increasingly p u t in th e position of ad v ersary to h e r o w n pregnancy/fetus, e ith er b y having p rese n ted a "hostile en ­ vironm ent" to its dev elo p m en t or b y actively refusing som e

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medically proposed intervention ¡such as a cesarean section or treatment for a fetal “defect").15 Similarly, the claim by antiabortion polemicists that the fetus is becoming "viable" at an earlier and earlier point seems to rein­ force the notion that its treatment is a matter between a fetus and its doctor. In reality, most authorities agree that twenty-four weeks is the youngest a fetus is likely to survive outside the womb in the foreseeable future; meanwhile, over 90 percent of pregnant women who get abortions do so in the first trimester, fewer than 1 percent do so past the twentieth week.16 Despite these facts, the images of younger and younger, and tinier and tinier, fetuses being "saved," the point of viability being "pushed back" indefinitely, and untold aborted fetuses being "bom alive" have captured recent abortion discourse in the courts, the headlines, and television drama.17 Such images blur the boundary between fetus and baby; they reinforce the idea that the fetus's identity as separate and autonomous from the mother (the "living, separate child") exists from the start. Obstetrical technologies of visualization and electronic/surgical intervention thus disrupt the very definition, as traditionally understood, of "inside" and "outside" a woman's body, of pregnancy as an "interior" experience. As Donna Haraway remarks, pregnancy becomes integrated into a "high-tech view of the body as a biotic component or cybernetic communications system"; thus, "who controls the interpretation of bodily boun­ daries in medical hermeneutics [becomes] a major feminist issue."18 Interpreting boundaries, however, is a way to contest them, not to record their fixity in the natural world. Like penetrating Cuban territory with reconnaissance satellites and Radio Marti, treating a fetus as if it were outside a woman's body, because it can be viewed, is a political act. This background is necessary to an analysis that locates ultra­ sound imaging of fetuses within its historical and cultural context. Originating in sonar detectors for submarine warfare, ultrasound was not introduced into obstetrical practice until the early 1960s—some years after its accepted use in other medical diagnostic fields.19 The timing is significant, for it corresponds to the end of the baby boom and the rapid drop in fertility that would propel obstetrician-gynecologists into new areas of discovery and fortune, a new "patient population" to look at and treat. "Looking" was mainly the point, because, as in many medical technologies

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(and technologies of visualization), physicians seem to have ap­ plied the technique before knowing precisely what they were looking for. In this technique, a transducer sends sound waves through the amniotic fluid so they bounce off fetal structures and are reflected back, either as a still image (scan) or, more frequent­ ly, a real-time moving image "similar to that of a motion picture," as the American College of Obstetricians and Gynecologists (ACOG) puts it.20 Although it was enthusiastically hailed among physicians for its advantages over the dangers of X-ray, ultrasound imaging in preg­ nancy is currently steeped in controversy. A 1984 report by a joint National Institutes of Health/Food and Drug Administration panel found "no clear benefit from routine use," specifically, "no im­ provement in pregnancy outcome" (either for the fetus/infant or the woman), and no conclusive evidence either of its safety or harm. The panel recommended against "routine use," including "to view . . . or obtain a picture of the fetus" or "for educational or com­ mercial demonstrations without medical benefit to the patient" ("the patient" here, presumably, being the pregnant woman). Yet it approved of its use to "estimate gestational age," thus qualifying its reservations with a major loophole. At least one-third of all preg­ nant women in the United States are now exposed to ultrasound imaging, and that would seem to be a growing figure. Anecdotal evidence suggests that many if not most pregnancies will soon in­ clude ultrasound scans and presentation of a sonogram photo "for the baby album."21 How can w e understand the routinization of fetal imaging in obstetrics even though the profession's governing bodies admit the medical benefits are dubious? The reason ultrasound imaging in obstetrics has expanded so much are no doubt related to the reasons, economic and patriarchal, for the growth in electronic fetal monitoring, cesarean sections, and other reproductive technologies. Practitioners and critics alike commonly trace the obstetrical technology boom to physicians' fear of malpractice suits. But the impulses behind ultrasound also arise from the codes of visual imagery and the construction of fetal images as "cultural objects" with historical meanings. From the standpoint of clinicians, at least three levels of mean­ ing attach to ultrasound images of fetuses. These correspond to (1) a level of "evidence" or "report," which may or may not motivate

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diagnosis and/or therapeutic intervention; (2) a level of sur­ veillance and potential social control; and (3) a level of fantasy or myth. (Not surprisingly, these connotations echo the textual struc­ ture of The Silent Scream.) In the first place, there is simply the im­ pulse to "view," to get a "picture" of the fetus's "anatomical struc­ tures" in motion, and here obstetrical ultrasound reflects the im­ pact of new imaging technologies in all areas of medicine. One is struck by the lists of "indications" for ultrasound imaging found in the ACOG Technical Bulletin and the American Journal of Obstetrics and Gynecology indexes. Although the "indications" include a few recognizable “abnormal" conditions that might require a "non­ routine" intervention (such as "evaluation of ectopic pregnancy" or "diagnosis of abnormal fetal position"), for the most part they con­ sist of tech n ica l m easu rem en ts, lik e a list o f m ach in e parts-"crown rump length," "gestational sac diameter/' fetal sex organs, fetal w eig h t-a s well as estimation of gestational age. As one neonatologist told me, "We can do an entire anatomical workup!"22 Of course, none of this viewing and measuring and recording of bits of anatomical data gives the slightest clue as to what value should be placed on this or any other fetus, whether it has a moral claim to heroic therapy or life at all, and who should decide.23 But the point is that the fetus, through visualization, is being treated as a patient already, is being given an ordinary checkup. Inferences about its "personhood" (or 'babyhood"), in the context of the dominant ways of seeing fetuses, seem verified by sonographic "evidence" that it kicks, spits, excretes, grows. Evidentiary uses of photographic images are usually enlisted in the service of some kind of a ctio n -to monitor, control, and possibly intervene. In the case of obstetrical medicine, ultrasound techniques, in conjunction with electronic fetal monitoring, have been used increasingly to diagnose "fetal distress" and "abnormal presentation" (leading to a prediction of “prolonged labor" or "breech birth"). These findings then become evidence indicating earlier delivery by cesarean section, evoking the correlation some researchers have observed between increased use of electronic fetal monitoring and ultrasound and the threefold rise in the cesarean section rate in the last fifteen years.24 Complaints by feminist health advocates about unnecessary cesareans and excessive monitoring of pregnancy are undoubtedly justified. Even the profession's own guidelines suggest that the

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m onitoring tech n iq u es m ay lead to m isdiagnoses o r m a y th e m ­ selves be the cause of th e "stresses" th e y "discover."25 O ne m ight w ell question a ten d en cy in obstetrics to "discover" disorders w h e re th ey previously did no t exist, b ecau se visualizing tec h ­ niques com pel "discovery," o r to ap ply tec h n iq u es to w id e r a n d w id er groups of cases.26 O n th e w hole, h o w ev er, diagnostic uses of u ltrasound in obstetrics have b enefited w o m e n m o re th a n they've done harm , m aking it possible to define th e d u e d a te m ore ac­ curately, to detect anom alies, a n d to an ticip ate com plications in delivery. M y question is n o t a b o u t th is level of m edical applica­ tions bu t rath er about th e cu ltu ral assu m p tio n s und erly in g them . H o w do these assum ptions bo th reflect a n d reinforce th e larger culture of fetal im ages sk etched above? W h y h as th e im pulse to "see inside" com e to dom inate w ay s of k n ow ing a b o u t p regnancy an d fetuses, and w h a t are th e co n seq u en ces for w om en's con­ sciousness and reproductive p o w e r relations? T he "prevalence of th e gaze,” or th e privileging of th e visual, as th e prim ary m eans to know ledge in W estern scientific an d philosophical traditions has b een th e subject of a fem inist in quiry b y Evelyn Fox Keller a n d C hristine R. G ro n tkow ski. In th eir analysis, stretching from Plato to B acon a n d D escartes, this em ­ phasis on the visual has h a d a paradoxical function. F or sight, in contrast to th e oth er senses, h as as its pecu liar p ro p erty th e capaci­ ty for detachm ent, for objectifying th e th in g visualized b y creating distance b etw een kno w er a n d k n o w n . (In m o d ern optics, th e eye becom es a passive recorder, a cam era obscura.) In this w ay, th e elevation of the visual in a hierarch y of senses actually h as th e ef­ fect of debasing sensory experience, a n d relatedness, as m odes of know ing: "Vision connects us to tru th as it distances u s from th e corporeal."27 Some fem inist cultural theorists in F rance, Britain, a n d the U nited States have argued th a t visualization an d objectification as privileged w ays of know ing are specifically m asculine (m an th e view er, w om an the spectacle).28 W itho ut falling into such essentialism , w e m ay suppose th at th e language, perceptions, an d uses of visual inform ation m ay b e different for w om en, as preg n an t subjects, th an th ey are for m en (or w om en) as physicians, re­ searchers, or rep o rters. A nd th is d ifferen ce w ill reflect th e historical control by m en over science, m edicine, and obstetrics in W estern society a n d over th e historical definitions of m asculinity

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in Western culture. The deep gender bias of science (including medicine), of its very ways of seeing problems, resonates, Keller argues, in its "common rhetoric." Mainly "adversarial" and "ag­ gressive" in its stance toward what it studies, "science can come to sound like a battlefield."29 Similarly, presentations of scientific and medical "conquests" in the mass media commonly appropriate this terrain into Cold War culture and macho style. Consider this piece of text from Life's 1965 picture story on ultrasound in pregnancy, "A Sonar 'Look' at an Unborn Baby": The astonishing medical machine resting on this pregnant woman's abdomen in a Philadelphia hospital is "looking" at her unborn child in precisely the same way a Navy surface ship homes in on enemy submarines. Using the sonar principle, it is bombarding her with a beam of ultra-high-frequency sound waves that are inaudible to the human ear. Back come the echoes, bouncing off the baby's head, to show up as a visual image on a viewing screen. (P. 45)

The militarization of obstetrical images is not unique to ultra­ sonography (most technologies in a militarized society either begin or end in the military); nor is it unique to its focus on reproduction (similar language constructs the "war on cancer"). Might it then correspond to the very culture of medicine and science, its em­ phasis on visualization as a form of surveillance and "attack"? For some obstetrician-gynecologist practitioners, such visualization is patently voyeuristic; it generates erotic pleasure in the nonreciprocated, illicit "look." Interviewed in Newsweek after The Silent Scream was released, Nathanson boasted: 'With the aid of technology, w e stripped away the walls of the abdomen and uterus and looked into the wom b.”30 And here is Dr. Michael Har­ rison writing in a respected medical journal about "fetal manage­ ment" through ultrasound: The fetus could not be taken seriously as long as he [sic] remained a medical recluse in an opaque womb; and it was not until the last half of this century that the prying eye of the ultrasonogram . . . rendered the once opaque womb transparent, stripping the veil of mystery from the dark inner sanctum and letting the light of scientific observation fall on the shy and secretive fetus. . . . The sonographic voyeur, spying on the unwary fetus, finds him or her a surprisingly active little creature, and not at all the passive parasite we had imagined.31

Whether voyeurism is a "masculinist" form of looking, the "siting" of the womb as a space to be conquered can only be had by one who stands outside it looking in. The view of the fetus as a "shy," mysterious "little creature," recalling a wildlife photographer tracking down a gazelle, indeed exemplifies the "predatory nature

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of a photographic consciousness."32 It is hard to imagine a pregnant woman thinking about her fetus this way, whether she longs for a baby or wishes for an abortion. What w e have here, from the clinician's standpoint, is a kind of panoptics of the womb, whose aim is "to establish normative behavior for the fetus at various gestational stages" and to max­ imize medical control over pregnancy.33 Feminist critics em­ phasize the degrading impact fetal-imaging techniques have on the pregnant woman. She now becomes the "maternal environment," the "site" of the fetus, a passive spectator in her own pregnancy.34 Sonographic detailing of fetal anatomy completely displaces the markers of "traditional" pregnancy, w hen "feeling the baby move was a 'definitive" diagnosis." N ow the woman's felt evidence about the pregnancy is discredited, in favor of the more "objective" data on the video screen. We find her "on the table with the ultrasound scanner to her belly, and on the other side of the technician or doc­ tor, the fetus on the screen. The doctor . . . turns away from the mother to examine her baby. Even the heartbeat is heard over a speaker removed from the mother's body. The technology which m akes the b ab y/fetus m ore 'visible' renders the w om an invisible."35 Earlier I noted that ultrasound imaging of fetuses is constituted through three levels of m ean in g-n ot only the level of evidence (diagnosis) and the level of surveillance (intervention), but also that of fantasy or myth. "Evidence" shades into fantasy when the fetus is visualized, albeit through electronic media, as though removed from the pregnant woman's body, as though suspended in space. This is a form of fetishization, and it occurs repeatedly in clinical settings whenever ultrasound images construct the fetus through "indications" that sever its functions and parts from their organic connection to the pregnant woman. Fetishization, in turn, shades into surveillance when physicians, "right-to-life" propagan­ dists, legislatures, or courts impose ultrasound imaging on preg­ nant women in order "to encourage 'bonding.'" In some states, the use of compulsory ultrasound imaging as a weapon of intimidation against women seeking abortions has already begun.36 Indeed, the very idea of "bonding" based on a photographic image implies a fetish: the investment of erotic feelings in a fantasy. When an obstetrician presents his patient with a sonographic picture of the fetus "for the baby album," it may be a manifestation of masculine

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desire to reproduce not only babies but also motherhood. Many feminists have explained masculine appropriation of the conditions and products of reproduction in psychoanalytic or psychological terms, associating it with men's fears of the body, their own mortality, and the mother who bore them. According to one interpretation, "the domination of women by the male gaze is part of men's strategy to contain the threat that the mother em­ bodies [of infantile dependence and male impotence]."37 Nancy Hartsock, in a passage reminiscent of Simone de Beauvoir's earlier insights, links patriarchal control over reproduction to the masculine quest for immortality through immortal works: "Be­ cause to be born means that one will die, reproduction and genera­ tion are either understood in terms of death or are appropriated by men in disembodied form."38 In Mary O'Brien's analysis of the "dialectics of reproduction," "the alienation of the male seed in the copulative act" separates men "from genetic continuity.” Men therefore try to "annul” this separation by appropriating children, wives, principles of legitimacy and inheritance, estates, and em­ pires. (With her usual irony, O'Brien calls this male fear of female procreativity "the dead core of impotency in the potency principle.")39 Other, more historically grounded feminist writers have extended this theme to the appropriation of obstetrics in England and America. Attempts by male practitioners to discon­ nect the fetus from women's w om bs—whether physically, through forceps, cesarean delivery, in vitro fertilization, or fetal surgery; or visually, through ultrasound im aging-are specific forms of the ancient masculine impulse "to confine and limit and curb the creativity and potentially polluting power of female pro­ creation.”40 But feminist critiques of "the war against the womb" often suffer from certain tendencies toward reductionism. First, they confuse masculine rhetoric and fantasies with actual power relations, thereby submerging women's own responses to reproductive situations in the dominant (and victimizing) masculine text. Se­ cond, if they do consider women's responses, those responses are compressed into Everywoman's Reproductive Consciousness, un­ differentiated by particular historical and social circumstances; biology itself becomes a universal rather than an individual, par­ ticular set of conditions. To correct this myopia, I shall return to the study of fetal images through a different lens, that of pregnant women as viewers.

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PICTURING THE BABY - WOMEN'S RESPONSES The scenario of the voyeuristic ultrasound instrument/technician, with the pregnant woman displaced to one side passively staring at her objectified fetus, has a certain phenomenological truth. At the same time, anecdotal evidence gives us another, quite dif­ ferent scenario when it comes to the subjective understanding of pregnant wom en themselves. Far from feeling victimized or pacified, they frequently express a sense of elation and direct par­ ticipation in the imaging process, claiming it "makes the baby more real," "more our baby"; that visualizing the fetus creates a feeling of intimacy and belonging, as w ell as a reassuring sense of predictability and control.41 (I am speaking here of wom en whose pregnancies are wanted, of course, not those seeking abortions.) Some women even talk about themselves as having "bonded" with the fetus through viewing its image on the screen.42 Like am­ niocentesis, in vitro fertilization, voluntary sterilization, and other "male-dominated" reproductive technologies, ultrasound imaging in pregnancy seems to evoke in many wom en a sense of greater control and self-empowerment than they would have if left to "traditional" methods or "nature." How are w e to understand this contradiction between the feminist decoding of male "cultural dream works” and (some) women's actual experience of reproduc­ tive techniques and images? Current feminist writings about reproductive technology are not very helpful in answering this kind of question. Works such as Gena Corea's The Mother Machine and most articles in the an­ thology, Test-Tube Women, portray wom en as the perennial vic­ tims of an omnivorous male plot to take over their reproductive capacities. The specific forms taken by male strategies of reproductive control, while admittedly varying across times and cultures, are reduced to a pervasive, transhistorical "need." Mean­ while, women's own resistance to this control, often successful, as w ell as their complicity in it, are ignored; women, in this view, have no role as agents of their reproductive destinies. But historical and sociological research shows that wom en are not just passive victims of "male" reproductive technologies and the physicians who wield them. Because of their shared reproduc­ tive situation and needs, wom en throughout the nineteenth and twentieth centuries have often generated demands for technologies such as birth control, childbirth anesthesia, or infertility

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treatments, or they have welcomed them as benefits (which is not to say the technologies offered always met the needs).43 We have to understand the "market" for oral contraceptives, sterilization, in vitro fertilization, am niocentesis, and high-tech pregnancy monitoring as a more complex phenomenon than either the vic­ timization or the male-womb-envy thesis allows. At the same time, theories of a "feminist standpoint" or "repro­ ductive consciousness" that would restore pregnant women to ac­ tive historical agency and unify their responses to reproductive images and techniques are complicated by two sets of cir­ cumstances.44 First, w e do not simply imbibe our reproductive ex­ perience raw. The dominant images and codes that mediate the material conditions of pregnancy, abortion, and so forth, deter­ mine what, exactly, wom en "know" about these events in their lives, their meaning as lived experience. Thus, wom en may see in fetal images what they are told they ought to see. Second, and in dialectical tension w ith the first, wom en's relationship to reproductive technologies and images differs depending on social differences such as class, race, and sexual preference, and biological ones such as age, physical disability, and personal fertili­ ty history. Their "reproductive consciousness" is constituted out of these complex elements and cannot easily be generalized or, un­ fortunately, vested with a privileged insight. How different women see fetal images depends on the context of the looking and the relationship of the viewer to the image and what it signifies. Recent semiotic theory emphasizes “the centrality of the moment of reception in the construction of meanings." The meanings of a visual image or text are created through an "interac­ tion" process between the viewer and the text, taking their focus from the situation of the viewer.45 John Berger identifies a major contextual frame defining the relationship between viewer and image in distinguishing between what he calls "photographs which belong to private experience" and thus connect to our lives in some intimate way, and "public photographs," which excise bits of information "from all lived experience."46 Now, this is a simplistic distinction because "private" photographic images become imbued with "public" resonances all the time; w e "see" lovers' photos and family albums through the scrim of television ads. Still, I want to borrow Berger's distinction because it helps in­ dicate important differences between the meanings of fetal images

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when they are viewed as "the fetus" and when they are viewed as "my baby." When legions of right-wing wom en in the antiabortion move­ ment brandish pictures of gory dead or dreamlike space-floating fetuses outside clinics or in demonstrations, they are participating in a visual pageant that directly degrades w o m en -a n d thus them­ selves. Wafting these fetus-pictures as icons, literal fetishes, they both propagate and celebrate the image of the fetus as autonomous space-hero and the pregnant woman as “empty space." Their visual statements are straightforward representations of the antifeminist ideas they (and their male cohorts) support. Such right-wing women promote the public, political character of the fetal image as a symbol that condenses a complicated set of conservative values-abou t sex, motherhood, teenage girls, fatherhood, the family. In this instance, perhaps it makes sense to say they par­ ticipate "vicariously" in a "phallic" way of looking and thus become the "complacent facilitators for the w orking out of man's fantasies."47 It is not only antiabortionists who respond to fetal images how­ ever. The "public" presentation of the fetus has become ubiquitous; its disembodied form, now propped up by medical authority and technological rationality, permeates mass culture. We are all, on some level, susceptible to its coded meanings. Victor Burgin points out that it does no good to protest the "falseness" of such images as against "reality," because "reality"-that is, how w e experience the world, both "public" and "private"-"is itself constituted through the agency of representations."48 This suggests that women's ways of seeing ultrasound images of fetuses, even their own, may be af­ fected by the cumulative array of "public" representations, from Life Magazine to The Silent Scream. And it possibly means that some of them will be intimidated from getting abortions-al­ though as yet w e have little empirical information to verify this. W hen young wom en seeking abortions are coerced or manipu­ lated into seeing pictures of fetuses, their ow n or others, it is the "public fetus" as moral abstraction they are being made to view. But the reception and meanings of fetal images also derive from the particular circumstances of the woman as viewer, and these circumstances may not fit neatly within a model of wom en as vic­ tims of reproductive technologies. Above all, the meanings of fetal images will differ depending on whether a woman wishes to be

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pregnant or not. With regard to wanted pregnancies, wom en with very diverse political values may respond positively to images that present their fetus as if detached, their own body as if absent from the scene. The reasons are a complex weave of socioeconomic position, gender psychology, and biology. At one end of the spec­ trum, the "prolife" wom en Kristin Luker interviewed strongly identified "the fetus" with their own recent or frequent pregnan­ cies; it became "my little guy." Their circumstances as "devout, traditional women who valued motherhood highly" were those of married women with children, mostly unemployed outside the home, and remarkably isolated from any social or community ac­ tivities. That "little guy" was indeed their primary source of gratification and self-esteem. M oreover-and this fact links them with many women whose abortion politics and life-styles he at the opposite end of the sp ectru m -a disproportionate number of them seem to have undergone a history of pregnancy or child loss.49 If w e look at the wom en who comprise the market for high-tech obstetrics, they are primarily those who can afford these expen­ sive procedures and who have access to the private medical offices where they are offered. Socially and demographicahy, they are not only apt to be among the professional, educated, late-childbearing" cohort who face greater risks because of age (although the average age of amniocentesis and ultrasound recipients seems to be mov­ ing rapidly down). More importantly, whatever their age or risk category, they are likely to be products of a middle-class culture that values planning, control, and predictability in the interests of a "quality" baby.50 These values preexist technologies of visualiza­ tion and "baby engineering" and create a predisposition toward their acceptance. The fear of "nonquality"—that is, disability-and the pressure on parents, particularly mothers, to produce fetuses that score high on their "stress test" (like infants who score high on their Apgar test and children who score high on their SATs) is a cultural as well as a class phenomenon. Indeed, the "perfect baby" syndrome that creates a welcoming climate for ultrasound imag­ ing may also be oppressive for women, insofar as they are still the ones who bear primary responsibility-and gu ilt-for how the baby turns out.51 Despite this, "listening to women's voices" leads to the unmistakable conclusion that, as with birth control general­ ly, many women prefer predictability and will do what they can to have it.

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Women's responses to fetal picture taking may have another side as well, rooted in their traditional role in the production of family photographs. If photographs accommodate "aesthetic con­ sumerism," becoming instruments of appropriation and posses­ sion, this is nowhere truer than within family life—particularly middle-class family life.52 Family albums originated to chronicle the continuity of Victorian bourgeois kin networks. The advent of home movies in the 1940s and 1950s paralleled the move to the suburbs and backyard barbecues.53 Similarly, the presentation of a sonogram photo to the dying grandfather, even before his grand­ child's birth,54 is a 1980s' w ay of affirming patriarchal lineage. In other words, far from the intrusion of an alien, and alienating, technology, it may be that ultrasonography is becoming enmeshed in a familiar language of "private" images. Significantly, in each of these cases it is the woman, the mother, who acts as custodian of the im age—keeping up the album, taking the movies, presenting the sonogram. The specific relationship of wom en to photographic images, especially those of children, may help to explain the attraction of pregnant wom en to ultrasound im­ ages of their ow n fetus (as opposed to "public" ones). Rather than being surprised that some wom en experience bonding with their fetus after viewing its image on a screen (or in a sonographic "photo"), perhaps w e should understand this as a culturally em ­ bedded component of desire. If it is a form of objectifying the fetus (and the pregnant woman herself as detached from the fetus), per­ haps such objectification and detachment are necessary for her to feel erotic pleasure in it.55 If with the ultrasound image she first recognizes the fetus as "real," as "out there," this means that she first experiences it as an object she can possess. Keller proposes that feminists reevaluate the concept of objec­ tivity. In so doing they may discover that the process of objectifica­ tion they have identified as masculinist takes different forms, some that detach the viewer from the viewed and some that make possible both erotic and intellectual attachment.56 To suggest that the timing of maternal-fetus or maternal-infant attachment is a biological given (for example, at "quickening" or at birth), or that "feeling" is som ehow more "natural" than "seeing," contradicts women's changing historical experience.57 On the other hand, to acknowledge that bonding is a historically and culturally shaped proceess is not to deny its reality. That wom en develop powerful

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feelings of attachment to their ("private") fetuses, especially the ones they want, complicates the politics of fetal images. Consider a recent case in a New York court that denied a woman damages when her twenty-week fetus was stillborn, following an apparently botched amniocentesis. The majority held that, because the woman did not "witness" the death or injury directly, and was not in the immediate "zone of danger'' herself, she could not recover damages for any emotional pain or loss she suffered as a result of the fetus's death. As one dissenting judge argued, the court "rendered the woman a bystander to medical procedures performed upon her own body," denying her any rights based on the emotional and ''biological bond" she had with the fetus. 58 In so doing, the majority implicitly sanctioned the image of fetal autonomy and maternal oblivion. As a feminist used to resisting women's reduction to biology, I find it awkward to defend their biological connection to the fetus. But the patent absurdity and cruelty of this decision underscore the need for feminist analyses of reproduction to address biology. A true biological perspective does not lead us to determinism but rather to infinite variation, which is to say that it is historical. 5 9 Particular lives are lived in particular bodies- not only women's bodies, but just as relevantly, aging, ill, disabled, or infertile ones. The material circumstances that differentiate women's responses to obstetrical ultrasound and other technologies include their own biological history, which may be experienced as one of limits and defeats. In fact, the most significant divider between pregnant women who welcome the information from ultrasound and other monitoring techniques and those who resent the machines or wish to postpone "knowing'' may be personal fertility history. A recent study of women's psychological responses to the use of electronic fetal monitors during labor "found that those women who had previously experienced the loss of a baby tended to react positively to the monitor, feeling it to be a reassuring presence, a substitute for the physician, an aid to communication. Those women who had not previously suffer~d difficult or traumatic births ... tended to regard the monitor with hostility, as a distraction, a competitor ."60 To recite such conditions does not mean we have to retreat into a reductionist or dualist view of biology. Infertility, pregnancy losses, and women's feelings of "desperation" about "childlessness"

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have many sources, including cultural pressures, environmental hazards, and medical misdiagnosis or neglect.61 Whatever the sources, however, a history of repeated miscarriages, infertility, ectopic pregnancy, or loss of a child is likely to dispose a pregnant woman favorably to techniques that allow her to visualize the pregnancy and possibly to gain some control over its outcome.62 Pregnancy-as biosocial experience—acts on women's bodies in different ways, with the result that the relation of their bodies, and consciousness, to reproductive technologies may also differ. Attachment of pregnant w om en to their fetuses at earlier stages in pregnancy becomes an issue, not because it is cemented through "sight" rather than "feel," but when and if it is used to obstruct or harass an abortion decision.63 In fact, there is no reason any woman's abortion decision should be tortured in this way, because there is no medical rationale for requiring her to view an image of her fetus. Responsible abortion clinics are doing ultra­ sound imaging in selected cases -only to determine fetal size or placement, where the date of the woman's last menstrual period is unknown, the pregnancy is beyond the first trimester, or there is a history of problems; or to diagnose an ectopic pregnancy. But in such cases the woman herself does not see the image, because the monitor is placed outside her range of vision and clinic protocols refrain from showing her the picture unless she specifically re­ quests it.64 In the current historical context, to consciously limit the uses of fetal images in abortion clinics is to take a political stance, to resist the message of The Silent Scream. This reminds us that the politics of reproductive technologies are constructed con­ textually, out of who uses them, how, and for what purposes. The view that "reproductive engineering" is imposed on "women as a class," rather than being sought by them as a means toward greater choice,65 obscures the particular reality, not only of women with fertility problems and losses but also of other groups. For lesbians who utilize sperm banks and artificial insemination to achieve biological pregnancy without heterosexual sex, such technologies are a critical tool of reproductive freedom. Are les­ bians to be told that wanting their "own biological children" generated through their own bodies is som ehow wrong for them but not for fertile heterosexual couples?66 The majority of poor and working-class wom en in the United States and Britain still have no access to amniocentesis, in vitro fertilization, and the rest,

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although they (particular wom en of color) have the highest rates of infertility and fetal impairment. It would be wrong to ignore their lack of access to these techniques on the grounds that worrying about how babies turn out, or wanting to have "your own/' is only a middle-class (or eugenic) prejudice. In Europe, Australia, and North America, feminists are current­ ly engaged in heated debate over whether new reproductive technologies present a threat or an opportunity for women. Do they simply reinforce the age-old pressures on women to bear children, and to bear them to certain specifications, or do they give wom en more control? What sort of control do we require in order to have reproductive freedom, and are there/should there be any limits on our control?67 What is the meaning of reproductive technologies that tailor-make infants, in a context where childcare remains the private responsibility of wom en and many women are growing increasingly poor? Individual women, especially middleclass women, are choosing to utilize high-tech obstetrics, and their choices may not always be ones w e like. It may be that chorionic villus sampling, the new first-trimester prenatal diagnostic tech­ nique, will increase the use of selective abortion for sex. Moreover, the bias against disability that underlies the quest for the "perfect child" seems undeniable. Newer methods of prenatal diagnosis may mean that more and more abortions become "selective," so that more women decide "to abort the particular fetus [they] are carrying in hopes of coming up with a 'better' one next time."68 Are these choices moral? Do w e have a right to judge them? Can we even say they are "free"? On the other hand, techniques for imaging fetuses and preg­ nancies may, depending on their cultural contexts and uses, offer means for empowering women, both individually and collective­ ly. We need to examine these possibilities and to recognize that, at the present stage in history, feminists have no common standpoint about how women ought to use this power. CO NCLU SION

Images by themselves lack "objective" meanings; meanings come from the interlocking fields of context, communication, applica­ tion, and reception. If w e removed from the ultrasound image of The Silent Scream its title, its text, its sound narrative, Dr. Nathan-

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son, the media and distribution networks, and the whole antiabor­ tion political climate, what would remain? But, of course, the question is absurd because no image dangles in a cultural void, just as no fetus floats in a space capsule. The problem clearly becomes, then, how do w e change the contexts, media, and con­ sciousnesses through which fetal images are defined? Here are some proposals, both modest and utopian. First, w e have to restore w om en to a central place in the pregnancy scene. To do this, w e must create new images that recontextualize the fetus, that place it back into the uterus, and the uterus back into the woman's body, and her body back into its social space. Contexts do not neatly condense into symbols; they must be told through stories that give them mass and dimension. For example, a brief prepared from thousands of letters received in an abortion rights campaign, and presented to the Supreme Court in its most recent abortion case, translates women's abortion stories into a legal text. Boldly filing a procession of real wom en before the court's eyes, it materializes them in not only their bodies but also their jobs, families, schoolwork, health problems, young age, poverty, race/ethnic identity, and dreams of a better life.69 Second, we need to separate the power relations within which reproductive technologies, including ultrasound imaging, are ap­ plied from the technologies themselves. If w om en were truly em­ powered in the clinic setting, as practitioners and patients, would we discard the technologies? Or would w e use them differently, integrating them into a more holistic clinical dialogue between women's felt knowledge and the technical information "dis­ covered" in the test tube or on the screen? Before attacking repro­ ductive technologies, w e need to demand that all wom en have ac­ cess to the knowledge and resources to judge their uses and to use them wisely, in keeping with their own particular needs. Finally, we should pursue the discourse now begun toward developing a feminist ethic of reproductive freedom that com­ plements feminist politics. What ought w e to choose if w e became genuinely free to choose? Are some choices unacceptable on moral grounds, and does this mean under any circumstances, or only under some? Can feminism reconstruct a joyful sense of child­ bearing and maternity without capitulating to ideologies that reduce women to a maternal essence? Can w e talk about morality

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in reproductive decision making without invoking the specter of maternal duty? On some level, the struggle to demystify fetal im­ ages is fraught with danger, because it involves re-embodying the fetus, thus representing wom en as (wanting-to-be or not-wantingto-be) pregnant persons. One w ay out of this danger is to image the pregnant woman, not as an abstraction, but within her total framework of relationships, economic and health needs, and desires. Once we have pictured the social conditions of her freedom, however, w e have not dissolved the contradictions in how she might use it.

NOTES This is a larger version of an article soon to be published in Reproductive Technologies, ed. Michelle Stanworth (London: Polity Press). Thanks to Michelle Stanworth and Poli­ ty Press for permission to use it here. The following people have given valuable help in the research and revising of the manuscript but are in no way responsible for its out­ come: Fina Bathrick, Rayna Rapp, Ellen Ross, Michelle Stanworth, and Sharon Thomp­ son. I would also like to thank the Institute for Policy Studies, the 1986 Barnard College Scholar and the Feminist Conference, and Ms. Magazine for opportunities to present pieces of it in progress.

1. City of Akron v. Akron Center for Reproductive Health, 426 U.S. 416 (1983); and Thornburgh v. American College of Obstetricians and Gynecologists, 54 LW 4618, 10 June 1986. From a prochoice perspective, the significance of these decisions is mixed. Although the court's majority opinion has become, if anything, more liberal and more feminist in its protection of women's "individual dignity and autonomy," this majority has grown steadily narrower. Whereas in 1973 it was seven to two, in 1983 it shrank to six to three and then in 1986 to a bare five to four, while the growing minority becomes ever more conservative and antifeminist. 2. See Paul D. Erickson, Reagan Speaks: The Making of an American Myth (New York: New York University Press, 1985); and Joanmarie Kalter, "TV News and Religion," TV Guide, 9 and 16 Nov. 1985, for analyses of these trends. 3. This phrase comes from Stuart Ewen, "The Political Elements of Style," in Beyond Style: Precis 5, ed. Jeffery Buchholz and Daniel B. Monk (New York: Columbia Universi­ ty Graduate School of Architecture and Planning/Rizzoli), 125-33. 4. John C. Fletcher, and Mark I. Evans, "Materndl Bonding in Early Fetal Ultrasound Examinations," New England Journal of Medicince 308 (1983): 392-93. 5. Planned Parenthood Federation of America, The Facts Speak Louder: Planned Parent­ hood's Critique of "The Silent Scream" (New York: Planned Parenthood Federation of America, n.d.). A new film, Silent Scream II, appeared too late to be reviewed here. 6. These earliest photographic representations of fetal life include "Babies before Birth," Look 26 (June 5, 1962): 19-23; "A Sonar Look at an Unborn Baby," Life 58 (Jan. 15, 1965): 45-46; and Geraldine L. Flanagan, The First Nine Months of Life (New York: Simon & Schuster, 1962).

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7. For a history of photography, see Alan Trachtenberg, ed. Classic Essays on Photography (New Haven: Leete's Island Books, 1980); and Susan Sontag, On Photography (New York: Delta, 1973), esp. 22-23. 8. Roland Barthes, "The Photographic Message," in. A Barthes Reader, ed. Susan Sontag (New York: Hill & Wang, 1982), 194-210. Compare Hubert Danish: "The photographic image does not belong to the natural world. It is a product of human labor, a cultural ob­ ject whose being . . . cannot be dissociated precisely from its historical meaning and from the necessarily datable project in which it originates." See his "Notes for a Phenomenology of the Photographic Image," in Classic Essays on Photography, 287-90. 9. Lady Elizabeth Eastlake, "Photography," in Classic Essays on Photography, 39-68, 65-66; John Berger, About Looking (New York: Pantheon, 1980), 48-50; and Andre Bazin, "The Ontology of the Photographic Image," in Classic Essays on Photography, 237-40, 241. 10. Allan Sekula, "On the Invention of Photographic Meaning," in Victor Burgin, ed., Thinking Photography (London: Macmillan, 1982), 84-109; and Sontag, On Photography, 5, 21. 11. Stuart Ewen and Elizabeth Ewen, Channels of Desires: Mass Images and the Shaping of American Consciousness (New York: McGraw-Hill, 1982), 33. 12. Barbara Katz Rothman, The Tentative Pregnancy: Prenatal Diagnosis and the Future of Motherhood (New York: Viking, 1986), 114. 13. Zoe Sofia, "Exterminating Fetuses: Abortion, Disarmament, and the Sexo-Semiotics of Extraterrestrialism," Diacritics 14 (1984): 47-59. 14. Rachel B. Gold, "Ultrasound Imaging during Pregnancy," Family Planning Perspec­ tives 16 (1984): 240-43, 240-41; Albert D. Haverkamp and Miriam Orleans, "An Assess­ ment of Electronic Fetal Monitoring," Women and Health 7 (1982): 126-34, 128; and Ruth Hubbard, "Personal Courage Is Not Enough: Some Hazards of Childbearing in the 1980s," in Test-Tube Women: What Future for Motherhood? ed. Rita Arditti, Renate Duelli Klein, and Shelley Minden (Boston: Routledge & Kegan Paul, 1984), 331-55, 341. 15. Janet Gallagher, "The Fetus and the Law -W hose Life Is It, Anyway?," Ms. (Sept. 1984); John Fletcher, "The Fetus as Patient: Ethical I s s u e s Journal of the American Medical Association 246 (1981): 772-73; and Hubbard, "Personal Courage Is Not Enough," 350. 16. David A. Grimes, "Second-Trimester Abortions in the United States," Family Plan­ ning Perspectives 16 (1984): 260-65; and Stanly K. Henshaw et al., "A Portrait of American Women Who Obtain Abortions," Family Planning Perspectives 17 (1985): 90-96. 17. In her dissenting opinion in the Akron case, Supreme Court Justice Sandra Day O'Connor argued that Roe v. Wade was "on a collision course with itself" because technology was pushing the point of viability indefinitely backward. In Roe the court had defined "viability" as the point at which the fetus is "potentially able to live outside the mother's womb, albeit with artifical aid." After that point, it said, the state could restrict abortion except when bringing the fetus to term would jeopardize the woman's life or health. Compare Nancy K. Rhoden, "Late Abortion and Technological Advances in Fetal Viability: Some Legal Considerations," Family Planning Perspectives 17 (1985): 160-61. Meanwhile, a popular weekly television program, "Hill Street Blues," in March 1985 aired a dramatization of abortion clinic harassment in which a pregnant woman seeking an abortion miscarries and gives birth to an extremely premature fetus/baby, which soon dies. Numerous newspaper accounts of "heroic" efforts to save premature newborns have made front-page headlines. 18. Donna Haraway, "A Manifesto for Cyborgs: Science, Technology, and Socialist Feminism in the 1980s," Socialist Review 80 (1985): 65-107. 19. Gold, 240; and David Graham, "Ultrasound in Clinical Obstetrics," Women and Health 7 (1982): 39-55, 39.

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20. American College of Obstetricians and Gynecologists, "Diagnostic Ultrasound in Obstetrics and Gynecology," Women and Health 7 (1982): 55-58 (reprinted from ACOG, Technical Bulletin, no. 63 [October 1981]). 21. Madeleine H. Shearer, "Revelations: A Summary and Analysis of the NIH Consen­ sus Development Conference on Ultrasound Imaging in Pregnancy," Birth 11 (1984): 23-36, 25-36, 30; Gold, 240-41. 22. Dr. Alan Fleishman, personal communication (May 1985). 23. For a discussion of these issues, see Rosalind P. Petchesky, Abortion and Woman's Choice: The State, Sexuality, and Reproductive Freedom (Boston: Northeastern University, 1985), chap. 9. 24. Kathy H. Sheehan, "Abnormal Labor: Cesareans in the U.S.," The Network News (National Women's Health Network) 10 (July/August 1985): 1,3; and Haverkamp and Orleans, 127. 25. ACOG, "Diagnostic Ultrasound in Obstetrics and Gynecology," 58. 26. Stephen B. Thacker, and H. David Banta, "Benefits and Risks of Episiotomy," in Women and Health 7 (1982): 173-80. 27. Evelyn Fox Keller and Christine R. Grontkowski, "The Mind's Eye," in Discovering Reality: Feminist Perspectives on Epistemology, Metaphysics, Methodology, and Philosophy of Science, ed. Sandra Harding and Merrill B. Hintikka (Dordrecht: D. Reidel, 1983), 207-24. 28. Luce Iragaray, "Ce Sexe qui n'en est pas un," in New French Feminisms: An An­ thology, ed. Elaine Marks and Isabelle de Courtivron (New York: Schocken, 1981), 99-106, 101; Annette Kuhn, Women's Pictures: Feminism and Cinema (London: Routledge & Kegan Paul, 1982), 601-65, 113; Laura Mulvey, "Visual Pleasure and Narrative Cinema," Screen 16 (1979): 6-18; and E. Ann Kaplan, "Is the Gaze Male?" in Powers of Desire: The Politics of Sexuality, ed. Ann Snitow, Christine Stansell and Sharon Thomp­ son (New York: Monthly Review Press, 1983), 309-27, 324. 29. Evelyn Fox Keller, Reflections on Gender and Science (New Haven: Yale University, 1985), 123-24. 30. Melinda Beck et al., "America's Abortion Dilemma," Newsweek 105 (14 Jan. 1985): 20-29, 21 (italics added). 31. This passage is quoted in Hubbard, 348, and taken from Michael R. Harrison et al., "Management of the Fetus with a Correctable Congenital Defect," Journal of the American Medical Association 246 (1981): 774 (italics added). 32. Haraway, 89; Sontag, On Photography, 13-14. 33. This quotation comes from the chief of Maternal and Fetal Medicine at a Boston hospital, as cited in Hubbard, 349. Compare it with Graham, 49-50. 34. For examples, see Hubbard, 350; and Rothman, 113-15. 35. Rothman, 113. 36. Gold, 242. 37. Kaplan, 324. Compare Jessica Benjamin, "Master and Slave: The Fantasy of Erotic Domination," in Powers of Desire, 280-99, 295. This article was originally published as 'The Bonds of Love: Rational Violence and Erotic Domination," Feminist Studies 6 (Spring 1980): 144-74. 38. Nancy C.M. Hartsock, Money, Sex, and Power: An Essay on Domination and Community (Boston: Northeastern University, 1983), 253. 39. Mary O'Brien, The Politics of Reproduction (Boston/London: Routledge & Kegan Paul, 1981), 29-37, 56, 60-61, 139. 40. Ann Oakley, "Wisewoman and Medicine Man: Changes in the Management of Childbirth," in The Rights and Wrongs of Women, ed. Juliet Mitchell and Ann Oakley, (Harmondsworth: Penguin, 1976), 17-58, 57; Gena Corea, The Mother Machine: Reproductive Technologies from Artificial Insemination to Artificial Wombs (New York:

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Harper & Row, 1985), 303 and chap. 16; Adrienne Rich, Of Woman Born: Motherhood as Experience and Institution (New York: W.W. Norton, 1976), chap. 6; and Barbara Ehrenreich, and Deirdre English, For Her Own Good: 150 Years of the Experts'Advice to Women (Garden City, N.Y.: Anchor/Doubleday, 1979). 41. Hubbard, 335; Rothman, 202, 212-13, as well as my own private conversations with recent mothers. 42. Rothman, 113-14. 43. Linda Gordon, Woman's Body, Woman's Right: A Social History of Birth Control in America (New York: Grossman, 1976); Angus McLaren, Birth Control in NineteenthCentury England (London: Croom Helm, 1978); Jane Lewis, The Politics of Motherhood: Child and Maternal Welfare in England, 1900-1939 (London: Croom Helm, 1980), chap. 4; Rosalind P. Petchesky, "Reproductive Freedom: Beyond A Woman's Right to Choose," in Women: Sex, and Sexuality, ed. Catharine R. Stimpson and Ethel Spector Person (Chicago: University of Chicago Press, 1981), 92-116 (originally in Signs 5 [Summer 1980]); and Petchesky, Abortion and Woman's Choice, chaps. 1 and 5. 44. O'Brien, chap. 1; and Hartsock, chap. 10. 45. Kuhn, 43-44. 46. Berger, 51. 47. Irigaray, 100. 48. Burgin, 9. 49. Kristin Luker, Abortion and the Politics of Motherhood (Berkeley: University of California, 1984), 138-39, 150-51. 50. Michelle Fine and Adrienne Asch, "Who Owns the Womb?' Women's Review of Books 2 (May 1985): 8-10; Hubbard, 336. 51. Hubbard, 344. 52. Sontag, On Photography, 8. 53. Patricia Zimmerman, "Colonies of Skill and Freedom: Towards a Social Definition of Amateur Film," Journal of Film and Video (forthcoming). 54. Rothman, 125. 55. Lorna Weir, and Leo Casey, "Subverting Power in Sexuality," Socialist Review 14 (1984): 139-57. 56. Keller, Reflections on Gender and Science, 70-73, 98-100, 117-20. 57. Compare this to Rothman, 41-42. 58. David Margolick, "Damages Rejected in Death of Fetus," New York Times, 16 June 1985, 26. 59. See Denise Riley, War in the Nursery: Theories of the Child and Mother (London: Virago, 1983), 17 and chaps. 1-2, generally, for an illuminating critique of feminist and Marxist ideas about biological determinism and their tendency to reintroduce dualism. 60. Brian Bates, and Allison N. Turner, "Imagery and Symbolism in the Birth Practices of Traditional Cultures," Birth 12 (1985): 33-38. 61. Rebecca Albury, "Who Owns the Embryo?' in Test-Tube Women, 54-67, 57-58. 62. Rayna Rapp has advised me, based on her field research, that another response of women who have suffered difficult pregnancy histories to such diagnostic techniques may be denial-sim ply not wanting to know. This too, however, may be seen as a tactic to gain control over information, by censoring bad news. 63. Coercive, invasive uses of fetal images, masked as "informed consent," have been a prime strategy of antiabortion forces for some years. They have been opposed by prochoice litigators in the courts, resulting in the Supreme Court's repudiation on two dif­ ferent occasions of specious "informed consent" regulations as an unconstitutional form of harassment and denial of women's rights. See Akron, 1983; Thornburgh, 1986. 64. I obtained this information from interviews with Maria Tapia-Birch, administrator in the Maternal and Child Services Division of the New York City Department of

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Health, and with Jeanine Michaels, social worker; and Lisa Milstein, nurse-practitioner, at the Eastern Women's Health Clinic in New York, who kindly shared their clinical ex­ perience with me. 6 5 . Corea, 313 . 66. Compare Fine and Asch. 6 7 . Samuel Gorovitz, "Introduction: The Ethical Issues," Women and Health 7 ( 1982 ): 1- 8 , 1.

68. Hubbard,

334 . 6 9 . Lynn Paltrow, "Amicus Brief: Richard Thornburgh v. Amercan College of Obstetri­ cians and Gynecologists," Women's Rights Law Reporter 9 (1986 ): 3 -2 4 .

[9] MORE THAN 'A WOMAN'S RIGHT TO CHOOSE'? Susan Himmelweit

In just over twenty years since the Abortion Act was passed in 1967 much has changed for women. Above all, the greater availability of abortion has brought increased sexual and economic freedom to those who do not wish to be or become pregnant. There have also been concomitant changes affecting those who do wish to bear a child. Some of these are the direct effect of the Act itself, such as the dramatic fall in the number of healthy babies put up for adoption, so that infertile women now are having to seek other means in order to be able to raise babies of their ‘own’, including various new technological methods of conception. Other changes are more indirect, such as the development of methods of pre-natal diagnosis of foetal disabilities, made worthwhile, from a medical point of view, only by the legality of abortion for affected foetuses. During this period feminism has created and expanded the concept of ‘reproductive rights’. Initially this was taken to mean the right of access to free and safe contraception and abortion, that is, the right of women not to reproduce - and consequently to be treated as more than just reproducers. Only more recently, in this country at least, has attention also been given to the right of women to reproduce, and feminists have been active against sterilization and contraception abuse, joined movements for the right of women to decide how they are to give birth and begun to debate issues raised by infertility treatment. In other countries, organizations promoting ‘reproductive rights’ have interpreted their brief more widely still and have mounted nursery campaigns, seeing child-care provision as a necessary part of reproduc­ tive freedom by enabling women to have children and still do other worthwhile things with their lives. The slogan ‘A Woman’s Right to Choose’, by now universally recognized as referring to reproductive rights, has become the common denominator of feminism. The slogan, if

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not the details of its implementation, represents a fundamental position uniting feminists of all persuasions: liberal, radical and socialist. The provisions of the 1967 Abortion Act fall short of ‘a woman's right to choose’. Two doctors have to be found to confirm that a woman’s reasons for wanting an abortion come under the specific grounds allowed by the act.1 Less paternalist forms of legislation have been proposed but, in a period of reaction, even the existing position has needed strong defence. Feminist action has had to be concentrated on the Act’s preservation in the face of numerous unsuccessful legislative attempts to make it more restrictive, and more successful administra­ tive moves to make both private and, in particular, National Health Service abortions more difficult in practice to obtain. The defeat of John Corrie’s bill in 1979 marked a high point of feminist activity and represents perhaps the most significant victory for women since the current Conservative administration first took office in that year. Now, nearly ten years later, another bill is being introduced by Roman Catholic, Liberal MP David Alton, containing a single clause making all abortions after 18 weeks illegal.2The apparent simplicity of this bill is an admitted tactical device by its proposer to enable it to get through Parliament, making at least some abortions illegal by appeal­ ing to the distaste many people feel for late ones, and thereby creating a political climate in which his eventual aim of criminalizing all abortions could be achieved (Toynbee, 1987; Duggan, 1988: 14). His tactic has proved successful. His bill got its second reading on 23 January 1987. The majority of 45 which it commanded was at least in part due to Alton’s promise to consider other time limits at committee stage, when the bill gets amended (Guardian, 23.1.1988: 3). We have yet to see what amendments are made and what support such an amended bill might win. Unlike previous attempts to restrict the availability of abortion, this bill has received almost universal condemnation from the medical profession as well as feminists. This is largely because of the growth of pre-natal diagnosis. A number of techniques now exist which can detect various characteristics of the child a foetus will become if it survives until birth. Some of these are severe or life-threatening disabilities and diseases, such as spina bifida, which can have a variety of consequences including a life spent in a wheelchair or no life at all. The 1967 Act provided the necessary legal framework for the development and use of such pre-natal testing. Nearly all such conditions are incurable, so the only ‘treatment’ available after such a diagnosis is abortion. Many of these conditions can be detected by examining foetal cells. Currently the safest technique for obtaining such cells is amniocentesis, the with­ drawal of a small amount of the amniotic fluid in which the foetus lives by a needle through the mother’s abdomen. This procedure cannot be carried out safely before a woman is about sixteen weeks pregnant and, for chromosomal or genetic testing, the cells then have to be cultured for another three weeks or so before the results are obtained. If abortion became illegal after 18 weeks, such results would therefore arrive too

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late for an affected foetus to be legally aborted. Since this is almost invariably the course of action supported by doctors in such circum­ stances, they are heavily opposed to placing such a time-limit on abortions.3 In practice, only a proportion of the small number of late abortions are performed as a result of such pre-natal diagnosis. In 1986, less than 1.4 per cent of abortions on women resident in the UK were performed after 20 weeks gestation. Of these, about 16 per cent were on grounds of foetal handicap alone (OPCS, 1986: ll ) .4Many foetuses are aborted late as a result of delays within the National Health Service, others because the mother was unaware she was pregnant or too scared to seek help earlier. In current conditions, some late abortions would still be needed even if diagnostic information were available earlier. Nevertheless, the issue of pre-natal diagnosis is an important one for feminists to consider. It has arisen as a result of a change, the increased availability of abortion, which feminists have supported and contributed to bringing about. And it raises some fundamental issues about a woman’s right to choose by theoretically separating the question of whether a pregnancy is wanted from whether a mother wants to bear a particular foetus. This article will explore the implications of some of these changes for a socialist feminist position on abortion and reproductive freedom. In doing so issues raised by pre-natal diagnosis will be used, among others, as examples of wider questions about a woman’s right to choose. While it is dangerous to make general rules from particular cases, the issues raised by exceptional events can lead us to explore the full meaning of positions with much wider applicability. Such questions raise a particular problem for socialist feminism, because the recognition that individual rights are not enough to achieve women’s liberation is the main feature which distinguishes socialist feminists (and most radical feminists) from their liberal sisters. How to work within but at the same time transcend a politics based on individual rights is a general problem for socialist feminism, but one which has largely been ignored within reproductive politics, perhaps because until now arguments based on individual rights have proved successful in winning support for access to abortion. But this may not continue to be the case, because some of the issues raised by pre-natal diagnosis pose questions to which a position based on individual rights has no adequate answer.

The problem of choice One problem with a politics based on maximizing the individual’s right to choose is that the introduction of a new option may affect the range of alternatives on offer too. The legalization of abortion has changed the options open to women who find themselves involuntarily pregnant. For example, it is possible that prior to the public acceptance and availa­ bility of abortion, a young woman getting pregnant would have had

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more moral claim on the father of her child for emotional and material support than she does today for a child she has ‘chosen' to bear by refusing to have an abortion. Have shot-gun abortions replaced shot­ gun weddings? If so, it is the woman alone at whom the gun now points. Of course, it can be said that the choice which is less available to her today, that of greater dependence on a man, is one that she ‘ought not’ in some sense to want to choose anyway; but we must recognize that many women, without being pregnant, do make such choices today and, given the lack of economic opportunities for women in our society, may indeed be sensible to do so on material grounds if no other. One can hardly expect the involuntarily pregnant to be more likely than others to reject the main form of‘security’ our society offers to women. The reason, in the above example, that the freedom to choose one option closed off another, was that the ability to call on the latter option of marriage depended on the woman’s weakness and lack of alternatives - the existence of the ‘shot-gun’! Women do live under such constraints in our society that a legal weakness may be to their advantage in exerting moral persuasion and therefore the extension of some freedoms may in fact curtail others. Similarly the availability of pre-natal tests for disabilities and the knowledge they bring may in practice constrain as well as broaden women’s choices. Whether or not pressure is applied to her, a woman may know she will be less able to call on others for help in caring for a handicapped child she could have avoided bearing. She too may feel that she has to have an abortion. Pre-natal testing can also be used to allow the sex of a child to be ‘chosen’. Already in India, there are private clinics which offer am­ niocentesis, nominally to detect Down’s syndrome, where it is suspected that the real aim is to discover the sex of the foetus. Given the value such a society puts on sons and the heavy economic burden daughters can place on a family, it is a safe assumption that the foetuses that have been aborted as a result of such tests are female (Roggencamp, 1984; Kish war, 1985). Whose choice would that have been? Some women may have been pressured into abortions by husbands or their families, and such late abortions are painful and inevitably distressing procedures. Others may have made the ‘choice’ themselves because they themselves wanted to bear a son and felt no direct pressure from others, but it would be difficult to call such a choice ‘free’ when it results from the low value put on women. Are such women ultimately better off for the availability of greater choice? It is certainly questionable. What then does the ‘right to choose’ mean for the oppressed? If we question whether the right to choose has been genuinely exercised when a woman chooses to abort a female foetus because of the greater value put on sons, should we not also do so when she aborts a foetus with Down’s syndrome because society does not provide sufficient support to make raising a mentally handicapped child a choice she can contem­ plate? And what about the woman who chooses an abortion because her low woman’s wage does not make single parenthood, even with a

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healthy child, economically feasible? Have any of these women really exercised a right to choose? Reproductive decisions, like all others, are always made within a material and cultural context. To see it as the context providing the options and the individual making the choice is only one way to look at such a situation: the one favoured by liberal ideology. Formally it is always a correct description, though not the only possible one, but in practice its emphasis may be misleading. The context may be better seen as constraining, ruling out what might appear to be alternative courses of action, even at times to the point of effective determination. Nearly all women who choose to undergo pre-natal diagnosis do so in order to give themselves the opportunity of choosing whether to terminate a wanted pregnancy. This choice, as indeed is often the case over abortion, is not one that she would ever have chosen to be in a position to make; she can only ‘choose’ the lesser of two unacceptable outcomes. A study found that women facing the decision as to whether to abort or bear a handicapped child often talked about the decision they made, whichever way it went, as their ‘only choice’ (Rothman, 1987:180). This contradictory phrase sums up neatly the problem with the notion of freedom of choice in situations where one action is undertaken only to avoid even more dreadful alternatives. The empha­ sis such women would put is on the lack not the availability of choice that the combination of their social and medical conditions imposes on them. In normal speech, the notion that we have of ‘free choice’ does not encompass all situations in which choices are made. For example, we do not talk about a prisoner offered the choice between drug treatment or continued imprisonment as having freely chosen the drug treatment. Few women make their reproductive choices in situations in which their physical, material and emotional circumstances are ideal. Such circum­ stances may well cause her to make a different choice than she would have if circumstances had been different. If she would have had the child had she been able to afford it, had better support for the disabled been provided or had more value been put on daughters, then it is circumstances rather than the woman who has ‘chosen’ and free choice is an illusion. It may be an illusion that in itself is hard to bear. For choice within liberal ideology implies responsibility too. Men, and not children, are accorded the right of decisionmaking because they can be expected to bear the consequences of their own decisions. Women all too often have to bear the responsibility without the choice. Unquestionably this is the case when a woman is denied an abortion, but it is also true in a less clear-cut sense when no option is desirable and the element of choice is so much less important than the problems involved in either course of action. Even those women who felt their amniocentesis results had left them with only one choice, felt responsible for their actions, talking about them in ways such as: ‘This is your responsibility. You have to

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More than *A Woman's Right. . .7 make the choice. No one makes that choice for you’ (Rothman, 1987: 183). For this woman responsibility meant: ‘There are times that I really curse modern technology. No one should have to make these kinds of decisions’ (182). None of these women felt that they could have avoided the choice, nor did they feel it would have been right to have shielded them from it, nevertheless they did not question their own feelings of guilt and responsibility.5 Arguments by the disabled who question the use of ‘therapeutic’ abortion to prevent the birth of physically or mentally handicapped babies sometimes fall prey to a similar form of victim-blaming ideology, seeing the mother as responsible for having murdered a child not good enough for her. Their arguments appear to have a moral force based upon a specific personal identification with the aborted foetus. However, the disabled have no monopoly on this position; there are many of us who would not be alive today if abortion had been available to our mothers. If a woman has an abortion because she feels she cannot manage to raise a disabled child, in so far as such a decision is to be regretted, it is an indictment of society and the help it offers for the care of the disabled. In current circumstances, it is surely doubly wrong to blame the individual mother for making the difficult decision to abort, or to erect legal obstacles to hinder her from doing so. However, organizations of the disabled are right to alert us to the dangers that the availability of pre-natal diagnosis poses at the level of society. Cost-cutting governments, eager to shift the burden of welfare expenditure on to individual families may well use the excuse that women who refuse pre-natal screening or insist on continuing with an ‘undesirable’ pregnancy have to bear the consequences themselves. We may find that resources, instead of becoming more abundant because fewer such babies are born, are cut on the grounds that women had the right to choose not to bear such a child. The willingness of some Conservative MPs, who are otherwise anti-abortion and against state spending, to spend money on the genetic screening of pregnancies suggests that their real motive must be cost cutting, and that ultimately the funds for programmes to screen for genetic diseases will be at the expense of research and treatment for the effects of such diseases themselves (Farrant, 1985). Further, we have to consider the dangers of the search for the ‘perfect’ child for society as a whole. Even if all congenital defects were detectable before birth, accidents and diseases would continue to leave some people disabled. An attitude that the disabled should be elimi­ nated rather than helped with their disability might leave those who fell through the net the subject of social ostracism rather than help. Thus, another problem with the ‘right to choose’ is that the choices made by individuals may have social effects which are undesirable. Not only are individuals’ choices always made within an economic, cultural and political context, but that context is itself affected by the decisions of individuals. Examples of this problem, which have evoked particular concern among some feminists, arise with sex selection. If parents were

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ANITA CORBIN/FORMAT

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\Ladies Against Women*, at the satiric demonstration , London 25 June 1983

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able to choose the sex of their children what would be the effects on society as a whole? Many studies have shown that in most societies there is some preference for sons over daughters, more marked in some societies than in others (Hoskins and Holmes, 1984). In China, the one-child policy has led, in some areas, to a greater imbalance in the ratio of boys to girls born than could be naturally expected, suggesting that late abortion of female foetuses or, more likely, female infanticide may be being practised to pnsure that the only child of the family is male (Hillier, 1988). Amniocentesis is currently too expensive a technique to become so widely used as to affect significantly the overall balance of the sexes, but cheaper techniques are likely to become available in the not too distant future. Even if the prediction that male preference will destroy itself in a relatively short time by making daughters more desirable is correct, there are other effects to consider of parents being able to choose the sex of their children. Might social prejudices against women become further reinforced if parents had a free choice of the sex of their children and chose thereby the most popular combination of a boy followed by a girl giving the boy thereby not only the advantages of his gender but also those of being the first born? (Steinbacher, 1984) And what about the dangers of increased gender stereotyping if children were not only raised but created to conform to a particular gender (Powledge, 1981; Rothman, 1987)? All these questions raise in a particularly apposite way for feminism the way individual abortion decisions could impinge on society as a whole. Another problem with giving women choice is that it cannot then be ignored; choice is then imposed upon the woman. Some women may regret the passing of the time when a woman could leave her fate, as regards pregnancy and childbirth, to chance and dislike the loss of spontaneity that modern contraception and abortion entail. For some people making decisions is never easy and making such important decisions, about whether to bring a new life into existence and in so doing radically change their own, nearly impossible. If we recognize those feelings as worthy of respect, then undoubtedly the existence of legal abortion has been double-edged for such women. The ‘right to choose’ has become a burden as well as a source of liberation —a loss as well as a gain. Pre-natal diagnosis extends the period in which choices have to be made well into the pregnancy, into the second trimester when tradi­ tionally women are expected to enjoy their pregnancy in pleasant, though as yet not too encumbered, anticipation of the forthcoming child. Barbara Katz Rothman describes movingly the effect that the expecta­ tion of amniocentesis can have on a woman’s feelings about her pregnancy. As a result of carrying out a series of interviews, she found that, compared with those who would not be having amniocentesis, women who expected to have tests which might lead to an abortion allowed themselves less recognition, both publicly and privately, of their pregnant state. They were less likely to wear maternity clothes, that is,

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to allow public recognition of their pregnancy, and less likely to have felt foetal movements, a private acknowledgement. This finding leads her to talk about the pre-amniocentesis stage as a ‘tentative pregnancy’: the woman is pregnant but she does not yet know if she is going to have a baby. She feels that the consequences of this are fundamental. Instead of women gradually learning through pregnancy, birth and the subse­ quent raising of the child to move from a position of oneness with their child to separateness, they are forced to distance themselves from the foetus emotionally at the start and then, provided the foetus is judged acceptable, have to learn attachment: A diagnostic technology th a t pronounces judgem ents h a lf way through the pregnancy m akes extraordinary demands on women to separate them selves from the foetus within. Rather than m oving from complete attachm ent through the separation that only ju st begins at birth, this technology demands th at w e begin w ith separation and distancing. Only after an acceptable judgem ent has been declared, only after the foetus is deemed worthy of keeping, is attachm ent to begin. (Rothman, 1987: 114-5)

She rejects the idea that mothers have to bond with babies after birth as failing to recognize that birth for women is a process of separation: ‘That attachment might better be seen as the continuation of a long process of disentanglement as mother and baby continue to sort themselves out into two separate beings, thus continuing and not establishing their relationship’ (115, emphasis in original). She blames this distorted view of reality on the lack of imagination of male doctors, since for men attachment does have to be achieved. Thus for her, ‘The [pre-natal diagnostic] technology assumes, and thus demands of women, that our experience parallels men’s, that we too start from separation and come to intimacy - and only with caution’ (114-5). By examining the issues surrounding abortion decisions in a variety of circumstances, a number of problems for a politics based on claiming the right to choose have been posed. The problems, examined above, are of a number of general types, cases of which can arise in other circumstances, but which are exemplified particularly starkly in choices over reproduction. First, recognizing that choices are ^always made within an economic, cultural and political context, there is the question of how that context is itself formed. The range of alternatives and the choices that are made by others may affect what can in practice be chosen. The opening up of new options may close off others and the aggregation of a large number of individual decisions may lead to undesirable outcomes which curtail freedom. This is related to the second problem, that of whether the notion of free choice adequately describes all situations in which, in a formal sense, a person is allowed to make a choice. An alternative view would

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More than A Woman's Ri ght . . 4 7 see that in many situations, circumstances should be seen as the real determinant of action and the notion of choice an illusion which imposes responsibility without freedom. This problem arises particularly acutely for those who are in subordinate positions in society. The circumstances of their subordination may well lead them to act in different ways from those we might imagine them ‘freely’ choosing had circumstances been more favourable. Finally the experience of having to make choices may be one that structures a situation in undesirable ways, forcing it to be subject to a timetable of rational decision-making, when it might otherwise be experienced in more desirable and spontaneous ways. Choice can itself become an unwelcome burden, and one impossible to refuse.

Freedom and the right to choose The notion of the ‘right to choose’ is one that feminism has borrowed from liberal political theory, within which political liberty is measured by the extent to which individuals are free to make decisions concerning themselves. In other words, individuals have a prima facie ‘right’ to make choices concerning their own lives, provided these do not diminish similar rights of others. Society in this view is seen as nothing more than a collection of individuals and its well-being as the aggregate of the well-being of the individuals that make up society; there is no concept of a public good beyond this. Of course, it is recognized that there are circumstances in which individual rights have to be curtailed because such a public good can be better served by carrying out a collective decision, as in the enforcement of law, for example, but a positive case has to be made out for that in particular and, implicitly, rare circum­ stances. Thus, in liberal theory, unless a case be made to the contrary, the right to choose is axiomatic. This view of freedom as consisting of individual rights depends on a conception of individuals as self-sufficient, independent beings with relatively insignificant relations with other individuals or concern for their well-being. For, if the scope for individuals to exercise their rights to choose without impinging on the similar rights of others were too limited, such a theory could not be proposed as a workable basis for the running of society. However, if primarily self-reliant people are allowed to make their own decisions on the basis of self-interest, an ‘invisible hand’, to use Adam Smith’s famous phrase for the working of the uncontrolled market, will act to aggregate and co-ordinate their decisions so that economy and society run in a smooth and efficient manner (Smith, 1974). This system, however, would not work properly if people’s decisions were influenced significantly by their concerns for others or for what society should be doing, rather than the pursuit of self-interest. For to have individuals acting on the basis of what they considered to be the interests of others would fail to guarantee that anyone’s real desires were represented. Indeed, historically, such a

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paternalistic mode of operation, in which rulers vested with traditional authority governed on behalf of their people, is precisely what liberal individualism sought to replace (Pateman, 1983).

Individual rights and reproductive freedom Feminism has used a liberal individualist argument to justify the abolition of all outside interference in abortion decisions - rejecting, further, all special pleading for either a public interest in the matter or for any conflict with the rights of another individual, the foetus. As we have seen, however, freedom of choice over reproductive decisions can pose a number of problems. This is not surprising for, although such decisions concern one of the rights most fundamental to liberal thought, the right to control one’s own body, reproduction is inherently a social act involving others, and it is, of course, one without which society cannot continue. It is for this reason that the problems posed by reproductive decision-making are not trivial special cases, but throw into question the coherence of liberal ideology as a theory of society. The individual subject within liberal theory has always implicitly, and sometimes explicitly, been male. This male-centredness has not been an historical accident, rather it reflects an attempt to side-step those problems the interdependence of reproduction causes. Liberal theory has always excluded children from the full rights accorded to ‘individuals’, for children are not capable of making and taking responsibility for their own decisions. Thus a child ‘may be properly restrained in their own interest precisely to the extent that he lacks the capacities necessary to be a rational chooser, for these capacities alone warrant the forbearance due to a moral person and exclude paternalistic interference’ (Benn, 1983: 178). Indeed, Locke, one of the architects of liberal theory, explicitly contrasted political power, which can only be exercised over free and equal adults with their consent, with the power that fathers have over their children, in order to reject paternalism as a model for the running of society (Locke, 1967, discussed in Pateman, 1983: 283^4; Phillips, 1987: 14). It is not only children who pose a problem for liberal theory and therefore have to be excluded from the rights accorded to individuals. It is also those who are structurally concerned with the well-being of other individuals, and thus make choices which are not in the pursuit of their own self-interest, for such irrational activities, as noted above, play havoc with the system. Parents therefore are a problem too, for the bearing and raising of a child requires accepting, irrationally within individualist terms, responsibility and concern for the well-being of another. Liberal theory shifts between two solutions to this impasse, neither of which is quite adequate. The first is to redefine the individual unit to be the nuclear family, to include both children and parents, so that in its relations with the rest of the world self-interest still operates. However,

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this undercuts the justification for using individual people as the basic unit: that they are decision-making subjects. The question of how decisions are made and acted upon for the nuclear family, now defined as a subject, is clearly begged. The other solution is to exclude women and children from the realm of responsible individuals, seeing them merely as dependents of the male head of household, subject and obedient to his decision-making power. To do this, arguments about the natural subservience of women, as well as children, have to be used, which conflicts with a view of adult individuals as inherently endowed with individual rights. As a model of the actual working of society it would work only if women and children never entered into any contractual relations with people outside their domestic unit, which, of course, has never been the case, but the increasing participation of women in the economy and public life makes it even more specious.6 Neither solution provides any answer as to the exercise of rights and decision-making power within the domestic unit, where relations between parents and children, and between husbands and wives, lie. Either women are part of a larger unit, the family, with a collective interest which substitutes for that of the individuals within it or they are dependants subject to the decisions of a male head of household. Neither solution accords women, except perhaps single women, indi­ vidual rights and especially not in their reproductive roles. So the problems that arise with claiming individual rights for women over reproductive decisions are not chance. They arise from the contradiction within liberal theory over the status of women as individuals, which in turn arises from liberal theory’s inability to cope with the inherently social activity of reproduction. This is a failure which cannot be dismissed as trivial because reproduction is necessary to the survival of society.

Beyond A Woman's Right to Choose' Feminists cannot solve this inherent contradiction by sticking to arguments that do not transcend the boundaries of liberal rights. Such arguments do have some resonance within a society within which individual rights are seen as paramount, and have therefore proved tactically successful in defensive campaigns in the past. Their ultimate flaw resides in the inability of a liberal rights position to cope with caring, interdependent relationships. This means that a position which is based on the individual rights of the woman alone, inevitably appears self-centred and inhumane, especially when dealing with such difficult issues as those posed by pre-natal diagnosis, where the abortion decision is as much about the foetus’s chance of a reasonable life as the mother’s willingness to care for it. Basing the claim for access to abortion on women’s individual rights has forced feminists to maintain a hopelessly insensitive position on the status of the foetus, dismissing it as just a ‘clump of tissue’ or a ‘bunch of

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cells’ (McDonnell, 1984). Many feminists themselves facing abortion decisions have not felt like that about the foetus growing within them. One writing in Ms magazine as long ago as 1978 about an unwanted pregnancy, complained that other feminists could only see her own feelings about the foetus as evidence ‘that I was misguided, brain­ washed by the patriarchy. They patiently explained to me that the foetus was just a bunch of cells’ (Gelder, 1978, quoted in McDonnell, 1984: 47). Wendy Savage, who could not have more respectable feminist credentials on the abortion issue, also rejects the ‘lump of tissue’ position, saying, ‘I have always agreed with the anti-abortionists that life begins at conception, that a new individual starts at conception and that doing an abortion is not the same as removing an appendix because you have got this other potential person there’ (Duggan, 1988: 15), although, she chooses to pose the issue in terms of a balance of conflicting rights: ‘as the foetus becomes larger, its rights become greater, and there comes a point . . . where the foetus’s right to live equals the right to get the pregnancy terminated’ (17). An alternative approach would see the woman as an active participant in reproduction, creating through her own nurturing efforts the baby that the foetus within her is growing into. A foetus is thus a baby being created, a potential human being, but only through the active involvement of the mother. Thus a mother before birth plays a similar role to that she usually continues to play after birth, with the significant difference that the former role is necessarily hers if the foetus is to develop at all, while the latter role is assigned to her socially and can be carried out by others. It is only through her efforts that the foetus’s potential to develop into a child can be realized. That a foetus may be able to grow within her even if she is unwilling does not diminish the role she plays in a wanted pregnancy. She may decide, for good reasons or bad, not to continue to nurture that child. If she does so then a medical abortion is the safest way for her to proceed. To deny her that opportunity is therefore to risk her health and possibly her life; the alternative that she continues unwillingly to allow the foetus to grow within her is effectively enforcing her participation in a process that, like all nurturing, cannot be properly carried out by the unwilling. Some women in these circumstances may come to care for their foetus, as women have done with unwanted children, but the principle is the same. It is cruel to a unwanted foetus, just like an unwanted child, to enforce it upon an unwilling mother, and it is a singularly cruel punishment to impose upon the woman. Such humanitarian grounds form a much more secure basis than ‘a woman’s right to choose’ for feminists to continue to support the availability of abortion without time-limit to all women. On these grounds, abortion should be made available to all women on demand, without any requirement that doctors approve their reasons, because the only possible rationale of the need for such approval is to deny some women what they are asking for. Although the implications for the law

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are the same as those from a position based on ‘a woman’s right to choose’, in some other areas the implications are somewhat different. The main one is that it allows, indeed requires, some public discussion of the circumstances in which abortion is a reasonable course of action, for there can be reasons for an abortion which are good and others which are bad (Petchesky, 1986: 7). Supporting the availability of abortion purely because it is a ‘woman’s right to choose’ effectively says that all reasons she may have for choosing an abortion are equally valid, and, implicitly, that no one outside has any right to hold views on what is an individual, personal decision. However, in practice it is clear that we do believe that some reasons for an abortion are better than others, even though we may not in all cases agree what these are. It is quite possible to support the availability of abortion on demand at the same time as regretting that women may as a result choose to abort female foetuses, for example. The political implications of this are clear too. If public opinion judges that many abortions are going on for reasons which it judges bad, then, without denying women access to such abortions, there is an onus on us all to create the sort of society in which such bad decisions are not so frequently made. A view of women as active participants in the creation of their foetuses’ lives contrasts with the anti-abortionists’ view which sees the foetus as a separate being, growing almost independently within a womb, which is seen as nothing more than the ‘maternal environment’. As Rosalind Petchesky writes of the foetal images used in such anti-abortion films as The Silent Scream: ‘From their beginning, such photographs have represented the foetus as primary and autonomous, the woman as absent or peripheral’ (Petchesky, 1987: 62) and she goes on to make the connection with individualism: The autonomous, free-floating foetus m erely extends to gestation the Hobbesian view of born, hum an beings as disconnected, solitary individuals. It is this abstract individualism , effacing the pregnant woman and the foetus's dependence on her, th at gives the foetal image its symbolic transparency, so th at w e can read in it our selves, our lost babies, our mythic secure past. (63)

The anti-abortionist view reintroduces the individual imbued with rights; only this time it is the right to life, which overrides all others. As we have seen, if we accept the terms of this debate we can only defend abortion rights by claiming, what to many women appears indefensible, that the foetus is nothing in this equation —just a bunch of cells. This position also leads to the denial of any development in the status of the foetus, so that a foetus at 28 weeks is no worthier of consideration than an embryo 20 weeks younger, the point Wendy Savage rejected above. The alternative approach, which recognizes the woman’s active role in the gestation of her foetus, can also take account of the way this activity has led to something: the foetus has grown through the love and efforts

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of its mother. A 28-week foetus is nearer becoming a child than an 8-week embryo and has become so through the time and effort of its mother. This must surely mean that it is a more serious decision to abort it; more stands in the balance against abortion than if it were younger. This reflects the view of many women that there comes a point at which a late abortion becomes too late, and it may be better that the child is born, provided that the mother does not feel she is then forced to look after it. Nevertheless, there must be circumstances in which abortion is still the better course of action however late .7 This is not to advocate any legal time-limit or conditions on the availability of late abortions, just to offer an opinion in what should become a public debate about good and bad reasons for them, rather than about whether they should be criminalized.8 One advantage to women about public debate is that it may help with the guilt that abortion decisions, particularly late ones, impose upon women. If a woman realizes that, whether or not it is unanimous, there is a body of public opinion that supports her actions, she may be relieved of some of the feeling of total responsibility that having to decide alone, because it is her sole ‘right to choose', inevitably imposes upon her. It does nothing, however, about the lack of spontaneity that the continual questioning of a pregnancy entails, except in so far as finding answers to well-aired questions may prove less difficult and disruptive than if one is thinking about them for the first time. To recognize that a woman actively grows her foetus does perhaps allow more of what Barbara Katz Rothman identified as the woman's way of seeing pregnancy and birth. For the development and growth of the foetus is the organization of bits of material that were once part of the mother's body into that of the foetus, the beginning thereby of the process of ‘disentanglement' of which she talks. None of this will help with the pain that pre-natal diagnosis brings when a wanted pregnancy is terminated, but it does make nonsense of the distinction, formally correct within individualist terms, between two sorts of reasons for seeking an abortion: that the mother does not wish to be pregnant and that she does not want to carry a particular foetus. A woman cannot be expected to treat her pregnant condition as something separate from the child she will bear, for indeed they are not separable; her pregnancy is her nurturing of that child. If growing a particular sort of child is unacceptable to her, then that pregnancy will to her be the same sentence of imprisonment with hard labour than an unwanted preg­ nancy might be to another woman.

Conclusion In a better society, the love that parents have for their children and happily pregnant women for the foetuses they carry would be recognized as more than just a troublesome anomaly to be contained within the nuclear family. Liberal theory, although ultimately flawed by its failure

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to conceptualize reproduction, does capture some of the more undesir­ able elements of the way people relate to each other outside the family in the sort of individualistic society in which we live today. In a more collectively responsible society, relations in the public world could also be more caring, and allow for some of the interdependence that today is seen as appropriate only between family members. In such a society, public responsibility for what are now seen as private matters would be greater. This would not involve taking away any rights to choose that individual women may have in this society. Rather it would mean a recognition that reproduction is a social activity, in which women's choices are affected by the circumstances in which they are made, and therefore that there is a public responsibility to create the conditions in which women will choose courses of action that are seen as desirable. In those circumstances, the responsibility for the consequences of difficult choices over reproduction should bear less heavily on women and be seen, back where it belongs, as a political matter. Ultimately, of course, women will have to make choices, and doing so may well be painful, but some of that pain might be relieved if there was more public debate, more public responsibility for the circumstances in which choices are made, and less focus on the individual nature of the decision. For this to work properly, society would have to be very different from what it is today. However, the creation of that society depends in part upon changing current attitudes to reproduction. So a start has to be made now. I have argued in this article, that socialist feminists should move from a position on abortion based on individual rights to choose, to one which guarantees women unconditional access to abortion on humanitarian grounds. While using individual rights to argue the case for abortion has proved successful in the past, we may now be reaching the limits of its usefulness, even as a defensive tactic. Advances in reproductive technologies, in particular pre-natal testing, are beginning to show up more clearly the contradictions of a liberal rights position over reproduction. An alternative approach in which women are seen as actively involved in nurturing their foetus can also be used as the basis for a campaign for abortion on demand, without reducing the status of the foetus to a clump of cells. We should not allow the anti-abortionists to force us into a position in which they, not us, seem to be the ones who care for foetuses. Only this way can the real role that a woman plays in bearing and caring for the foetus growing within her be recognized, and the pregnant woman no longer seen as a passive environment in which the foetus may or may not be allowed to grow. A recognition of the active involvement and interdependence of mother and foetus would provide a secure foundation for a humanitarian claim for abortion on demand, based on the welfare of both mother and foetus. While there is nothing worthy of debate around the question of whether abortion should be legal, debate on the real issues behind abortion decisions has yet to begin.

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Notes Susan H im m elweit teaches Economics and Women's Studies at the Open U niversity. She w as a founder member of Feminist Review and has been actively involved in campaigns defending women's access to abortion for the last fifteen years.

1 There are two types of grounds allowed by the Act. One type refers to the

2

3

4 5

6

needs of the woman and her fam ily and allows abortion where the continu­ ance of the pregnancy would involve a risk to the pregnant wom an’s life or to her physical or m ental health or that of her fam ily greater than if the pregnancy were term inated. It is the inclusion of considerations of mental health and effects on the w om an’s fam ily that leads the Act to be described as allowing abortion on both medical and social grounds. As can be seen, however, the term inology is purely medical and this, coupled w ith the requirem ent th at the grounds be certified by a registered medical prac­ titioner, gives doctors considerable power in their interpretation of the Act. The other ground on which abortions can be certified as necessary is where There is substantial risk th at if the child were born it would suffer from such physical or m ental abnorm alities as to be seriously handicapped’ and it is this clause which has allowed ‘therapeutic abortions’ for abnormal foetuses and led to the developm ent and use of pre-natal screening for foetal disability (OPCS, 1986: vi). There is no tim e lim it in the 1967 Abortion Act. However the 1928 Infant Life Protection Act m akes it a crime to kill a child which is capable of being born alive, which w as th en taken to be at 28 w eeks gestation. This has provided an effective tim e lim it on abortions of som ewhat less than 28 w eeks as doctors, reluctant to risk prosecution, play safe on the length of gestation. There is currently a bill being proposed in the House of Lords to amend the Infant Life Protection Act, reducing to 24 w eeks the point at which a child is said to be capable of being born alive, to reflect the greater survival rate of premature babies today. This would have a corresponding effect on very late abortions. It is a compromise on abortions for foetal disability which is m ost likely to be accepted by Alton and his supporters. They talk of a ‘stop-the-clock’ option, which would allow abortions after 18 w eeks if diagnostic tests were in progress (Observer , 24.1.88: 1). This way the medical lobby may be placated, while the 18-week lim it rem ains the norm. Nearly all abortions to non-UK resident women were on grounds of risk to the physical or m ental h ealth of the mother. Rothman m akes a separation betw een ‘guilt’ and ‘responsibility’: ‘I specifi­ cally say responsibility and not guilt. Some women express feelings of guilt, but all of them express “the inescapable sense of deep responsibility” ’ (Rothman, 1984: 182, em phasis in original). N eo-classical econom ists, the liberal individualists of the economics profes­ sion, have investigated the theoretical assum ptions that would have to be made if a household were to operate, in economic matters, as if it were an individual decision-m aker. Becker (1981) has shown that a necessary condition is that one member of the household is sufficiently powerful, well-endowed and altruistic th at all other members are or aspire to be ‘h is’ beneficiaries. Thus liberal theory requires that households operate like an idealized picture of a Victorian patriarchal family.

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7 A Marplan poll for the Guardian in October found th at 51 per cent of women thought that the present lim it on legal abortion should be 18 weeks, but subsequent polls have shown that this cannot be interpreted to m ean that such women think there are no grounds for abortion later than this. A majority of women approved of abortions being carried out between 20 and 22 weeks into the pregnancy when a schoolgirl below the age of consent is unaware she is pregnant (57 per cent of women approved), w hen there is likelihood that the child would be physically handicapped (68 per cent) or where the women’s health is at risk (80 per cent) ( Guardian , 21.1.1988: 3). Such circumstances cover nearly all the grounds of the existing Abortion Act. Indeed it would appear that less than 85 of the 2,019 abortions performed on women resident in the UK w ith pregnancies of more than 20 weeks gestation would not fit into these categories (OPCS, 1986: 11). 8 The women’s movement has never mounted a campaign to challenge the 28-week tim e-lim it currently enforced through the Infant Life Protection Act.

References ARDITTI, Rita, KLEIN, Renate Duelll and MINDEN, Shelley (1984) Test-tube Women:

What Future for Motherhood? London: Pandora. BECKER, Gary (1981) A Treatise on the Family Harvard: Harvard U niversity

Press. BENN, Stanley (1983) ‘Private and Public Morality: Clean Living and Dirty H ands’ in BENN and GAUS (1983). BENN, Stanley and GAUS, Gerald (1983) Public and Private in Social Life London:

Croom Helm. COREA, Gena et al. (1985) Man-made Women: How New Reproductive Technolo­

gies Affect Women London: Hutchinson. DUGGAN, Maria (1988) ‘Whose Right to Life: A Roundtable D iscussion’ Marxism

Today (January). FARRANT, Wendy (1985) ‘Who’s for Amniocentesis? The Politics of Prenatal Screening in HOMANS (1985). GOULD, Carol (1984) editor, Beyond Domination: New Perspectives on Women

and Philosophy Totowa, N ew Jersey: Rowman & Allanheld. HILLIER, Sheila (1988) ‘Women and Population Control in China: Issues of

Sexuality, Power and Control’Feminist Review N o.29. HOLMES, Helen, HOSKINS, Betty and GROSS, Michael (1981) editors, The Custom-

Made Child? Women-centered Perspectives Clifton, NJ: Hum ana Press. HOMANS, Hilary (1985) editor The Sexual Politics of Reproduction Aldershot:

Gower. HOSKINS, Betty and h o l m e s , Helen (1984) ‘Technology and Prenatal Femicide’ in ARDITTI, KLEIN and MINDEN (1984). KISHWAR, Madhu (1985) ‘The Continuing Deficit of Women In India and the Impact of Am niocentesis’ in COREA et al. (1985). LOCKE, Joh n (1967) Two Treatises of Government, Cambridge: Cambridge

U niversity Press. MCDONNELL, Kathleen (1984) Not an Easy Choice: A Feminist Re-examines

Abortion Toronto: The Women’s Press. OFFICE OF POPULATION CENSUSES AND SURVEYS (OPCS) (1986) Abortion S tatis­

tics: England and Wales, London: HMSO.

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PATEMAN, Carole (1983) ‘F em inist Critiques of the Public/Private Dichotomy’ in BENNandGAUS (1983). PETCHESKY, Rosalind Pollack (1986) Abortion and Woman’s Choice London:

Verso. PETCHESKY, Rosalind Pollack (1987) ‘Foetal Images: the Power of Visual Culture in the Politics of Reproduction’ in STANWORTH (1987). PHILLIPS, Anne (1987) Introduction to Feminism and Equality Oxford:

Blackwell. POWLEDGE,Tabitha (1981) ‘U nnatural Selection: On Choosing Children’s Sex’ in HOLMES, HOSKINS and GROSS (1981). ROGGENCAMP, Viola (1984) ‘Abortion of a Special Kind’ in a r d i t t i , KLEIN and MINDEN (1984). ROTHMAN, Barbara Katz (1987) The Tentative Pregnancy N ew York: Penguin. SMITH, Adam (1974) An Inquiry into the Nature and Causes of the Wealth of

Nations V ol.l, London: Penguin. STANWORTH, Michelle (1987) New Reproductive Technologies: Gender and

Motherhood Cambridge: Polity Press. STEINBACHER, Roberta (1984) ‘Sex Preselection: From Here to Fraternity’ in GOULD (1984). TOYNBEE, Polly (1987) ‘W ith Men and God on his Side’ Guardian 1.10.87. VAN GELDER, Lindsy (1978) ‘Cracking the W omen’s M ovement Protection Game’

Ms (December).

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http://taylorandfra nci s.com

[ 10] Reflections on Sex Equality Under Law Catharine A. MacKinnont

I There is a wrong way of thinking that one has rights, and a wrong way of thinking that one has not any. Simone Weil*1 No woman had a voice in the design of the legal institutions that rule the social order under which women, as well as men, live.2 Nor was the condition of women taken into account or the interest of women as a sex represented. To Abigail Adams’ plea to John Adams to “remember the ladies” in founding the United States, he replied, “We know better than to repeal our Masculine systems.” 3 Mostly, one senses, women as such were beneath notice at the

Copyright ° 1991 by Catharine A. MacKinnon. t Catharine A. MacKinnon is Professor of Law at the University of Michigan Law School. This Article has benefited greatly from readings by Alex Aleinikoff, Susanne Baer, Karen E. Davis, Andrea Dworkin, Owen Fiss, Kent Harvey, Yale Kamisar, Rick Lempert, Janice Raymond, Deborah Rhode, Kim Scheppele, Ted Shaw, Anne E. Simon, Cass Sunstein, Peter Westen, and James B. White. The law librarians at Michigan, especially Barbara Vaccaro and her staff, supported the research persistently and creatively. Rita Rendell supported everything with tremendous resourcefulness and competence. The argument on sexual assault as a form of sex discrimination has been largely shaped in discussions with Andrea Dworkin over the years. More recently it has been focused in collaboration with Elizabeth Shilton and other colleagues at the Women’s Legal Education and Action Fund (LEAF) in litigation in Canada. Cass Sunstein has thought I should write my argument on abortion for some years and never neglected an opportunity to bring it up. The approach to reproductive control as a sex equality issue has also grown with colleagues at LEAF through a series of cases and legislative testimony. I have tried to footnote distinctive language by others and to highlight arguments focused and formulated by LEAF’Ssubmissions. My attempts will necessarily fall short of giving adequate credit to a collective process. Discussions about reproductive rights with Christine Boyle, Christie Jefferson, Helena Orton, and Lynn Smith were particularly formative. This aspect of the work owes the most to Mary Eberts. Her brilliant insights, depth of mind, breadth of knowledge, incisive yet tactful legal formulations, and her courage and tenacity in bearing witness to the truth of women’s lives are written all over these pages. LEAF, of course, endorses only the content of its own facta. 1. S. W eil , l T he N otebooks of S imone W eil 152 (A. Wills trans. 1956). 2. In the United States, many men were also excluded from the official founding process. African American men and women were considered property. Indigenous peoples were to be subdued rather than consulted. Non-property owners were not qualified to participate in most states. C. B eard , An E conomic I nterpretation of the C onstitution of the United States 64-72 (1913) (state-by-state property requirements for delegates to Constitutional Convention). 3. 1 Adams F amily C orrespondence 370,382 (L. Butterfield ed. 1963) (original manuscript dated 1776).

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time.4 The political theory which formed the principled backdrop for the new American republic certainly did not encourage their visibility. Hobbes grounded natural equality in the ability to kill.5 Locke argued that whoever did not leave a regime consented to it.6 Rousseau once posited the primitive passions as “food, a female, and sleep.” 7 It seems unlikely that the female role then, any more than now, socially empowered women to defend themselves effectively, far less aggress, or that they had any place to go to escape male supremacy, even if they had the means of exit. And whatever need they conceived for “a female” probably went largely unfulfilled. Yet the applicability of these reign­ ing conceptions of equality, consent, and human need to at least half the population went unquestioned as women— including those owned neither in marriage nor in slavery— were deemed in theory to be participants in the social compact, while most women in life were not allowed to sign a contract.8 Equality was not mentioned in the Constitution or the Bill of Rights. The constitutive mind felt no need to guarantee it explicitly. It was apparently neither structurally essential to government nor in danger of loss to the federal power being created. Women who were not slaves were counted as persons, without being mentioned, for purposes of apportionment; slaves of both sexes were explicitly counted as three-fifths of a person.9 The only purpose of counting either of them was to divide power among white men, who kept the vote, that primitive exercise of citizenship, to themselves. The exclusion of all women as such from the polity was so far a given that the absence of half the

4. Being beneath notice takes many forms, but often looks much like this English example from a century after the U.S. founding: “I pass over many sections punishing particular acts of violence to the person, and in particular the whole series of offenses relating to the abduction of women, rape, and other such crimes. Their history possesses no special interest and does not illustrate either our political or our social history.” J. S tephen , 3 H istory of the C riminal L aw of E ngland 117-18 (1883). 5. T. H obbes , L eviathan 80-82 (Blackwell's Political Texts ed. 1946) (1651) (In the state of nature, “[n]ature hath made men so equal [that] when all is reckoned together, the difference between man, and man, is not so considerable . . . . For as to the strength of body, the weakest has strength enough to kill the strongest. . . .”). 6. J. L ocke , T he S econd T reatise of C ivil G overnment 49-50 (T. Peardon ed. 1952) (6th ed. 1764). 7. J. R ousseau , T h e S ocial C ontract and D iscourses 210 (G. Cole trans. 1950) (1762). Lorenne Clark called my attention to this quotation. 8. B. B abcock , a . F reedman , E. N orton & S. Ross, Sex D iscrimination and the L aw 592-99 (1975). See generally S. OKIN, W omen IN WESTERN POLITICAL T hought (1980). For an insightful critique of the meaning of contractarianism for women, see C. P ateman, T he S exual C ontract 7-8 (1988). 9. The enumeration clause reads: Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. U.S. C onst , art. I, § 2, cl. 3. M odem historical accounts document that apportionment was based on census data for the entire white population. See, e.g., M. B a u n sk i & H. Y oung , F air R epresentation 7 (1982). L. Schmeckebier , C ongressional A pportionment 109 (1941), shows that “free white females including heads of families” and “all other free persons” were counted for apportionment purposes.

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population from the founding process was not seen as qualifying its legitima­ cy— a legitimacy claimed on behalf of “we, the people” 10 no less. One hundred years and a war among men over equality among men later,11 the Fourteenth Amendment guaranteed “equal protection of the laws.” Racial inequality was its crucible, its paradigm, its target, and its subtext. Sex-based denials of equal rights were not covered.12 It is thus a misnomer to say that the Reconstruction Amendments gave Blacks even formal constitutional equali­ ty. To the extent gender inequality limited it— no woman could vote, for exam­ ple— equality was reserved for Black men.13 Still one hundred years later, women in the meantime having extracted the franchise,14 sex discrimination in private employment was forbidden under federal law only in a last minute joking “us boys” attempt to defeat Title VII’s prohibition on racial discrimina­ tion. Sex was added as a prohibited ground of discrimination when this attempt10. See, for example, the otherwise interesting treatment of this concept in Ackerman, The Storrs Lectures: Discovering the Constitution, 93 Y ale LJ. 1013, 1032-43 (1984). My point also mirrors Ackerman's in the sense that constitutional interpretation is about who “we, the people” are taken to be. 11. This characterization would have insulted those who fought for a larger principle, but the insult is done by history, not by this description of it. 12. The explicit language of section 2 of the Fourteenth Amendment limits the prohibition on denial or abridgement of the right to vote in federal elections to “male inhabitants” who are over twenty-one and citizens. The Senate Committee on the Right of Women to Vote reported to the Senate that “the right of female suffrage is inferentially denied by the second section of the fourteenth amendment___It is evident, from this provision, that females are not regarded as belonging to the voting population of a State.” S. REP. NO. 21, 42d Cong., 2d Sess. 4 (1872), reprinted in THE RECONSTRUCTION AMENDMENTS’ DEBATES 571, 572 (A. Avins 2d ed. 1974). For a contemporaneous discussion of failed attempts to strike “male” from the Fourteenth Amendment, see E. Stanton , S. Anthony & M. G age , 2 H istory of W om an S uffrage 90-151 (1882). In debates on the ratification of the Fourteenth Amendment, congressional repudiations of the notion that it would guarantee women's rights centered on suffrage, with little consideration of whether section 1 would grant women equal protection of the laws in areas other than the vote. In the exchanges, Senator Howard claimed that Madison would have granted suffrage to the “whole negro population as a class.” Senator Johnson asked whether Madison would have included women, given that he used the term “persons.” Senator Howard responded, “I believe Mr. Madison was old enough and wise enough to take it for granted there was such a thing as the law of nature which has a certain influence even in political affairs, and that by that law women and children were not regarded as the equals of men.” CONG. GLOBE, 39th Cong., 1st Sess. 2767 (1866). Another exchange occurred on the question of whether the Fourteenth Amendment could be used to invalidate laws that distinguished on the basis of sex and marital status. Senator Hale asked if the Amendment would affect the common legal distinction between the property rights of married women on the one hand and those of unmarried women and men on the other. Senator Stevens replied, “When a distinction is made between two married people or two femmes sole, then it is unequal legislation; but where all of the same class are dealt with in the same way then there is no pretense of inequality.” Senator Hale noted the fallacy in this reasonable classification model: “[I]f that means you shall extend to one married woman the same protection you extend to another, and not the same you extend to unmarried women or men, then by parity of reasoning it will be sufficient if you extend to one negro the same rights you do to another, but not those you extend to a white man.” C ong . G lobe , 39th Cong., 1st Sess. 1064 (1866). Generally, those who spoke in favor of including women under the Fourteenth Amend­ ment confined themselves to suffrage under section 2 and lost. Those few who imagined section 1 could apply to women seemed to be using that possibility as a rhetorical device to defeat the Amendment altogether. Once again, women were largely beneath notice. A paradoxical result is that, because few seriously contemplated that “equal protection of the laws” might apply to sex, the record contains surprising­ ly little direct repudiation of the notion. 13. It was not effectively delivered to Black men either and has not been to this day. See generally D. BELL, AND WE ARE Not Saved (1987) (analyzing why racial equality has eluded Black Americans). 14. U.S. CONST, amend. XEX.

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ed reductio ad absurdum failed and the law passed anyway.15 Maybe the commitment to ending racial inequality was strong enough to survive the insult of adulteration; maybe the fear of what Black men would do if the law did not pass was stronger than the fear of what women would do if it did; maybe Congress was equally against both bases for discrimination on principle or in recognition of reality; maybe it glimpsed that race and sex inequality were inextricably interconnected, fundamentally and in the lives of many; maybe some even found women’s humanity not laughable.16 There is evidence that protecting white women from discrimination based on sex appealed to some in light of the protection of Black women from discrimination based on race.17 This missed that sex discrimination affected Black as well as white women and that white women were already protected from racial discrimination by being white. Whatever Congress saw in 1964, it was not until 1971 that the United States Supreme Court deigned to conclude that unequal treatment of women on the face of the law could violate the constitutional guarantee of equal protection of the laws.18 With the subsequent failure of ratification of the proposed federal Equal Rights Amendment, which would have prohibited states or the federal government from denying or abridging equality of rights “on account of sex,” 19 this recognition has remained a matter of interpretation rather than a mandate of express constitutional dimension. Thus has the legal entitlement to sex equality, tenuous and limited when there at all, ranged from anathema to afterthought. An account of sex inequality under law in the United States must begin with what white men have done and not done because they have created the problem and benefited from it, controlled access to addressing it, and stacked the deck against its solution.20 Women, for their part, have registered dissent to secondclass citizenship to a surprising degree, given that they have been precluded from most means of effective resistance and excluded from many of its are-

15. 110 Cong. REC. 2577 (1964). 16. Later Congresses, with considerable supporting evidence, have shown that they are serious about combatting sex discrimination under Title VII. See, e.g., H.R. Rep. No. 899, 92d Cong., 2d Sess., reprinted in 1972 U.S. CODE CONG. & a d m in , ne w s 2137 (report accompanying Equal Employment Opportunity Act of 1972). 17. 110 CONG. REC. 2578-80 (1964) (comments of Rep. Martha Griffiths (D-Mich.)). 18. Reed v. Reed, 404 U.S. 71 (1971). 19. H.R.J. Res. 208,92d Cong., 1st Sess., 117 CONG. REC. 35,326 (1971). For an illuminating history of the ERA, see D. R hode , J ustice and G ender 63-80 (1989). 20. Men who are not white have similar records in countries they run, but it remains to be seen what men of color would do with power in countries like the United States in which they have been kept subordinate on the basis of race. Some pivotal moments of progress in the law of sex equality have been produced by American judges who are Black men. See, e.g., Barnes v. Costle, 561 F.2d 983 (D.C. Cir. 1977) (Robinson, J.) (first time a Court of Appeals recognizes sexual harassment as sex discrimination); Priest v. Rotary, 98 F.R.D. 755 (N.D. Cal. 1983) (Henderson, J.) (leading case excluding victim’s sexual history from sexual harassment trials); California Fed. Sav. & Loan v. Guerra, 479 U.S. 272 (1987) (Marshall, J.) (state initiative mandating unpaid pregnancy leave consistent with Title YU).

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nas.21 Women have often refused to accept the premises, limits, and rules of the law written by male dominance while having little choice but to live under it. Given that the majority of women were and are poor and working class and many were slaves and are members of racial minorities, this is even more impressive. That women have voluntarily engaged law at all is a triumph of determina­ tion over experience. It has not been an act of faith. Determined to leave a trace, to make sex equality ordinary, to live under social conditions that reflect and reinforce their aspirations rather than suppress or extinguish them, to live in respect and safety rather than indignity and terror, to redefine social stan­ dards in the image of their values, to participate fully in their own times, to save their own lives and those of generations to come, women have long demanded legal change as one vehicle for social change.22 Treacherous and uncertain and alien and slow, law has not been women’s instrument of choice. Their view seems to be that law should not be let off the hook, is too powerful to be ignored, and is better than violence— if not by much. In recent years, the contemporary movement among women for civil equality has created a new political practice and form of theory with major implications for law.23 The distinctive theory forged by this collective move­ ment is a form of action carried out through words. It is deeply of the world: raw with women’s blood, ragged with women’s pain, shrill with women’s screams. It does not elaborate yet more arcane abstractions of ideas building on ideas. It participates in reality: the reality of a fist in the face, not the concept of a fist in the face. It does not exist to mediate women’s reality for male consumption. It exists to bear witness, to create consciousness, to make change. It is not, in a word, academic.24 Legal practice and legal scholarship have not, on the whole, led this move­ ment but have attempted to respond to it. The initial transmutation of the feminist impulse into law lost a lot in translation, creating an approach that has not changed much to the present. Remaining largely within traditional legalism, early practice and scholarship tended to accept reigning legal assumptions and method: laws developed when women were not allowed to learn to read and write, far less vote, enunciated by a state built on the silence of women, predi­ cated on a society in which women were chattel, literally or virtually. In these early legal forays, existing doctrine was largely accepted as given— with the 21. See, e.g., Bradwell v. Illinois, 83 U.S. 130 (1872) (exclusion of women from practice of law). 22. See, e.g., D. RHODE, supra note 19 (women’s legal equality initiatives analyzed in context of social movements); W illiams, On Being the Object of Property, 14 SIGNS 5 (1988). 23. See generally C. M ac K innon , T oward a F eminist T heory of the State (1989). 24. Examples include works by Andrea Dworkin, OUR BLOOD (1976), PORNOGRAPHY: MEN POSSESSING WOMEN (1981), ICE AND FIRE (1986), INTERCOURSE (1987), LETTERS FROM A WAR ZONE (1988), and M ercy (1990); by Kate Millett, S exual P olitics (1970) and T he B asem en t : M editations on a H uman S acrifice (1979); by Toni Morrison, T he B luest E ye (1970) and B eloved (1987); and works edited by Barbara Smith, B ut Some of U s A re Brave (1982) (with G. Hull and P. Scott) and H ome G irls : A B lack F em inist A nthology (1983). This is a vast literature to which no selection begins to do justice.

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not minor exception that it be applied to women. Creativity meant shoehorning reality into doctrine. The first step in these legal attempts to advance women was to demand women’s inclusion on the same terms as men. Laws that had provided “special protections” for women were to be avoided.25 The point was to apply existing law to women as if women were citizens— as if the doctrine was not gendered to women’s disadvantage, as if the legal system had no sex, as if women were gender-neutral persons temporarily trapped by law in female bodies. The women’s movement claimed women’s control over their procreative lives from intercourse to child care. In legal translation, this became state nonintervention in reproductive decisions under the law of privacy. The women’s movement demanded an end to the sexual plunder of rapists, meaning to include an end to intercourse under conditions of unequal power on the basis of sex. In legal translation, this became the argument that rape had nothing to do with sexuality or with women and must be considered a gender-neutral crime of violence like any other.26 The women’s movement exposed and documented the exploitation and subordination of women by men economically, socially, culturally, sexually, and spiritually. Legal initiatives in the name of this movement called for an end to legal classifications on the basis of sex.27 Equality, in this approach, merely had to be applied to women to be at­ tained. Inequality consisted in not applying it. The content of the concept of equality itself was never questioned. As if there could be no other way of thinking about it, the courts adopted that content from Aristotle’s axiom that equality meant treating likes alike and unlikes unalike,28 an approach embod-

25. Muller v. Oregon, 208 U.S. 412 (1908), which permitted hours restrictions in the workplace for women only, accompanied by demeaning rhetoric, was the formative trauma, the negative benchmark. 26. It was not only the lawyers. A significant segment of the women’s movement made a version of this argument as well. Susan Brownmiller’s A gainst Our W ill : M en , W om en , and R ape (1976) was widely adopted as the basis for gender-neutralizing rape statutes in the name of treating rape as a crime of violence and not of sex. 27. See, e.g., Brown, Emerson, Falk & Freedman, The Equal Rights Amendment: A Constitutional Basis for Equal Rights for Women, 80 Yale LJ. 871 (1971). 28. A ristotle , E thica N ichomachea bk. V.3,1131a, 113 lb (W. Ross trans. 1925) (Things that are alike should be treated alike, while things that are unalike should be treated unalike in proportion to their unalikeness.). Without explicit reference to Aristotle, this approach was adopted very early in cases under the Fourteenth Amendment. In a challenge to a municipal ordinance prohibiting washing and ironing in public laundries during certain hours, the Supreme Court found that “(i]t is not legislation discriminating against any one. All persons engaged in the same business within it are treated alike . . . . Class legislation . . . is prohibited, but legislation which . . . affects alike all persons similarly situated, is not within the amendment.” Barbier v. Connolly, 113 U.S. 27,30-32 (1885). In another case decided soon after, the Court found that state laws which differed in the number of peremptory challenges allowed to jurors in capital cases did not violate the Fourteenth Amendment: “It [the Fourteenth Amendment] merely requires that all persons subjected to such legislation [in each state] shall be treated alike, under like circumstances and conditions---- ” Hayes v. Missouri, 120 U.S. 68,71 (1887). These cases paved the way for the formulation which remains fundamentally unchanged and unchallenged to this day. See, e.g., Reed v. Reed, 404 U.S. 71, 76 (1971) (citing Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920)).

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ied in the Constitution’s “similarly situated” requirement,29 which under Title VII became the more tacit requirement of comparability.30 Inequality is treat­ ing someone differently if one is the same, the same if one is different. Unques­ tioned is how difference is socially created or defined, who sets the point of reference for sameness, or the comparative empirical approach itself. Why should anyone have to be like white men to get what they have, given that white men do not have to be like anyone except each other to have it? Since men have defined women as different to the extent they are female, can women be entitled to equal treatment only to the extent they are not women? Why is equality as consistent with systematic advantage as with systematic disadvan­ tage, so long as both correlate with differences? Wouldn’t this support Hitler’s Nuremberg laws?31 Why doesn’t it matter if the differences are created by social inequality? Never mind that Aristotle defended slavery and lived in a society in which prostitution— the buying and selling of women for sex— thrived, and in which no women were citizens.32 Rather than designing an indigenous solution to the problem of sex inequali­ ty, the early feminist legal view was, implicitly, that if equality meant being the same as men— and being different from men meant either no rights at all or sex-based deprivation circumscribed and rigidified by inadequate and patron­ izing compensation— women would be the same as men. Embarrassments to this analysis such as pregnancy, insurance, women’s schools,33 and womenonly prisons were minimized as unimportant or lone exceptions or problems to be treated under some other rubric. Sexual assault and reproductive control

29. See, e.g., Royster Guano, 253 U.S. at 415 (“[T]he classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.”); Tussman & tenBroek, The Equal Protection of the Laws, 37 CALIF. L. REV. 341, 344 (1949). 30. General Elec. Co. v. Gilbert, 429 U.S. 125 (1976), is a pinnacle example of this approach. 31. Actually, this concept of equality was used with perfect logic by a Nazi author to justify hierarchy under the Third Reich: “Equality can only mean relative equality, where an equal is treated equally and an unequal is treated unequally.” (“Gleichheit kann nur verhältnismäßige Gleichheit bedeuten, wo Gleiches gleich, Ungleiches ungleich behandelt wird.”) G. WEIPPERT, D as P rinzip der H ierarchie , cited in Prengel, Gleichheit versus Differenz-—eine falsche Alternative im feministischen Diskurs, in DIFFERENZ UND GLEICHHEIT 120,121 (1990) (translated by author with Susanne Baer). (In German, one word, “Gleichheit,” means both equality and sameness or identity, so the second clause could as well be translated: “where like is treated alike and unlike unalike.”) The fascist implications of this approach—which readily rationalizes treating Jews one way and Aryans another—are embodied in a legend over the entrance to an extermination camp: “Jedem das Seine” translatable as, ‘To everyone what he deserves,” or, “Each gets theirs.” See Prengel, supra, at 121. 32. For a superb analysis of the status and treatment of women in ancient Greece, see E. KEULS, THE REIGN OF THE PHALLUS (1985), especially at 6, 30, 98, 108-09 (even women who were not slaves were virtually chattel) and 99,187-203,299,327 (prostitution flourished). For discussion of Aristotle’s treatment of slavery and the status of women, see E. S pelman , Inessential W om an 37-56 (1988). 33. See T. Butler, Pregnancy and Sex Equality: A “Unique Problem for Women?” 1-4 (Mar. 25,1990) (unpublished paper presented at Twenty-first National Conference on Women and the Law, on file with author) (criticizing exclusion of these issues together with military combat and homosexual rights from ERA’S strategy).

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were not considered legal issues of sex inequality at all, not in the doctrinal sense.34 The essentially assimilationist approach fundamental to this legal equality doctrine— be like us and we will treat you like we treat each other— was adopted in sex cases wholesale from the cases on racial discrimination. The judicial interpretation of sex equality, like its predicates the Fourteenth Amend­ ment and Title VII, has been built on the racial analogy. So not only must women be like men, sexism must be like racism, or nothing can be done.35 Where the analogy seems to work, that is, where the sexes are reasonably fungible and the inequalities can be seen to function similarly— as in some elite employment situations, for example— equality law can work for sex. Where the sexes are different, and sexism does not readily appear to work like racism— as with sexual abuse and reproductive control, for example— discrimination as

34. An early and innovative sex discrimination casebook, B. B abcock , A. F reedman , E. N orton & S. Ross, supra note 8, at 975-90, for example, discussed abortion prohibitions on the premise that they revealed sex discrimination in society and the law’s response to it. The law against sex discrimination as such was not discussed in terms of its possible application to abortion. Legally this distinction was exactly accurate. In early litigation on abortion rights, sex equality claims were sometimes included among the initial grounds for women’s right to abortion, but were dropped. One of the first initiatives against criminal abortion laws, colloquially called Women v. Connecticut, for example, contained an allegation that the abortion prohibition discriminated against women on the basis of sex. See Abele v. Markle, 452 F.2d 1121, 1123 (2d Cir. 1971) (discussing plaintiffs’ initial claims). This claim does not seem to have been pursued at later stages in the litigation. A three-judge district court eventually declared Connecticut’s anti-abortion laws to be unconstitutional on other grounds. Abele v. Markle, 342 F. Supp. 800 (D. Conn. 1972), vacated for reconsideration of mootness, 410 U.S. 951, on remand, 369 F. Supp. 807 (D. Conn. 1973) (finding case not moot and reaffirming consitutional holding). In Roe v. Wade, the first amended complaint pleaded an equal protection violation, but this did not, apparently, refer to sex discrimination, and was not pursued. First Amended Complaint at IV, f 5, Roe v. Wade, 314 F. Supp. 1217 (N.D. Tex. 1970) (No. CA-3-3690-B) (on file with author), aff'd in part and rev'd in part, 410 U.S. 113 (1973). One amicus brief in Roe at the Supreme Court level squarely argued that the criminal abortion statutes at issue “violate the most basic Constitutional rights of women” because women bear “the disproportionate share of the de jure and de facto burdens and penalties of pregnancy, child birth and child rearing. Thus any statute which denies a woman the right to determine whether she will bear those burdens denies her the equal protection of the laws.” Brief Amicus Curiae on Behalf of New Women Lawyers, Women’s Health and Abortion Project, Inc., National Abortion Action Coalition at 6, Roe v. Wade, 410 U.S. 113 (1973) (No. 70-18) (on file with author). This brief assumed that while sexual intercourse was equal, its consequences were not: “Man and woman have equal responsibility for the act of sexual intercourse. Should the woman accidentally become pregnant against her will, however, she endures in many instances the entire burden or ‘punishment.’” Id. at 26. “And it is not sufficient to say that the woman ‘chose’ to have sexual intercourse, for she did not choose to become pregnant.” Id. at 31. In Harris v. McRae, the Medicaid abortion funding case, only one amicus brief mentioned sex discrimination, and that was to point out that since women are socially discriminated against on the basis of sex, denying them abortions is an additional hardship. Brief Amicus Curiae for NOW, et. al. at 44, Harris v. McRae, 448 U.S. 297 (1980) (No. 79-1268) (on file with author). This brief did not make the legal argument that when the state does not pay for abortions, an act that hurts only women, they are denied equal protection of the laws on the basis of sex. Most recently, in the litigation in Webster v. Reproductive Health Services, although several briefs discussed the importance of abortion for women’s social equality, only one argued that denial of legal abortion constitutes sex discrimination in violation of equality law. Brief for the National Coalition Against Domestic Violence as Amicus Curiae Supporting Appellees at 5-25, Webster v. Reproductive Health Servs., 109 S. Ct. 3040 (1989) (No. 88-605) (on file with author) [hereinafter NCADV’s Webster Brief]. 35. Andrea Dworkin and I discuss this theme in our Pornography and C ivil R ights 11 (1988).

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a legal theory does not even come up. Along with these issues, the reality of inequality for those women for whom racism and sexism are too inseparable to be subject to a relation of analogy— those who are apparently too both to be regarded as fully either— has also been obscured. The African American struggle for social equality has been the crucible for equality law in America. “That race and that emergency” 36 has provided the deep structure, social resonance, and primary referent for legal equality, howev­ er abstractly phrased. Although racial equality has not been achieved, to say the least, law has periodically been induced to recognize some of the realities of white supremacy and has, at times, sustained these recognitions with re­ sults.37 Although the political analysis developed by the civil rights movement was substantive not abstract, self-respecting not comparative, and opposed hierarchical disadvantage rather than differentiation as such, courts in racial equality cases have largely confined themselves to the Aristotelian framework: qualification for admission into liberal humanity implicitly meant being like the white man. In Plessy v. Ferguson, for example, where segregation with equal facilities was held to be equality, the reason given was that Blacks were different from whites, so could be treated differently.38 When Brown v. Board of Education repudiated Plessy and held that educational segregation with equal facilities was inherently unequal,39 what changed was that Brown implicitly considered Blacks to be the same as whites. At least, Black school children were potentially so. This was a substantive shift in the political and ideological ground beneath the case law, not a pure doctrinal development. What was different was now the same. Difference could still justify differentiation, presumably including exclusion and subordination as well as segregation 36. Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 81 (1873) (Miller, J., for the Court) (“We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision [fifth section of the Fourteenth Amendment]. It is so clearly a provision for that race and that emergency, that a strong case would be necessary for its application to any other.”). 37. Loving v. Virginia, 388 U.S. 1, 7 (1967) (invalidating antimiscegenation statutes as institutional­ ization o f‘White Supremacy”); Brown v. Board of Educ., 347 U.S. 483 (1954) (holding racially segregated public educational system inherently unequal); Swann v. Board of Educ., 402 U.S. 1 (1971) (neutrality may not be enough to overcome segregated school system; “affirmative action” may be required); Fullilove v. Klutznick, 448 U.S. 448 (1980) (upholding guarantee of federal funds for local public works projects to minority businesses). These results have been almost totally vitiated in Washington v. Davis, 426 U.S. 229 (1976) (proof of intent required in constitutional discrimination cases), Regents of the University of California v. Bakke, 438 U.S. 265 (1978) (white male invalidates affirmative action plan for disadvantaged groups), and City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) (invalidating city contract preferences for minority businesses). 38. Plessy v. Ferguson, 163 U.S. 537, 551-52 (1896). 39. See Brown, 347 U.S. at 494 n.ll (citing K. CLARK, EFFECT OF PREJUDICE AND DISCRIMINATION IN PERSONALITY DEVELOPMENT (1950)). I deduce this conclusion from the Brown result, which mandates the same treatment, in the form of integration, for Black and white school children and from the Court’s failure to conclude that Black children were “different” based on their “different” response to segregation. That is, unlike Plessy, the fact that segregation made Blacks feel inferior was not evidence that they were, but a measure of harm. They could only be harmed by being treated as inferior if they had already entered liberal humanity, or potentially could. This is not the same as saying that the Brown Court saw Blacks as equal to whites.

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(maybe even affirmative action). Being the same as the dominant group re­ mained the equality test. The insult to Black culture inherent in the view that to be different is to be inferior, meaning properly outside the reach of guarantees of equal treatment, is an assumption that lies coiled like a snake in Brown's ringing axiom that separate but equal is inherently unequal. This has been overlooked for the most part in the name of the benefits of integration, perhaps on the pragmatic consideration that separate Black schools were less likely to be equal to schools also attended by whites in a white supremacist society.40 That the failure to end discrimination by whites against Blacks may signal a defect in the whole approach, rather than merely its inadequate delivery, is suggested by the Court’s current deinstitutionalization of racial equality, flawlessly predicated as it is on earlier progressive precedents.41 What did it also undoes it; differences, includ­ ing products of social inequality, make unequal treatment not unequal at all.42 As a further illustration, legal initiatives for sovereignty by indigenous peoples presumably do not complain of inequality because no attempt is made to meet the white man’s standard or to be compensated for not meeting it. Yet in seeking an end to nonrecognition as nations, indigenous peoples may be seen to claim another kind of equality: that of meeting their own standards, as other cultures recognized as nations meet theirs. Nationhood is a concept defined, ostensively at least, by those included in it, not in any state of nature. Seeking recognition through inclusion within that concept affirms a particularity which being the same as any other nation would efface, yet also asserts a right of place within the concept that is no different from any other nation. Legal recognition as sovereign is thus based on neither correspondence nor distinction, but on an equal entitlement to self-determination. Yet such an argument is not regarded as an equality argument because it is predicated upon neither sameness nor difference. Whatever the defects of the Aristotelian model when applied to race and nation— and they are substantial— it is stunningly inappropriate to sex. Society defines women as such according to differences from men: hence the sex difference, as gender is customarily termed. Then equality law tells women that they are entitled to equal treatment mainly to the degree they are the same as 40. Some Black communities are increasingly questioning integration as a strategy for equality. Commentators have recently noted, for example, that historically Black colleges and universities, although they enroll only 17% of all Black college students, graduate 34% of all Black college graduates. Page, A Black Anti-integration Backlash, Chicago Tribune, Feb. 19, 1989, § 4 (Perspective), at 3, col. 2; Jordan, Is Desegregation Working for Blacks?, Boston Globe, July 1, 1990, Focus section at 89. 41. City of Richmond v. J. A. Croson Co., 488 U.S. 469 (1989), is an especially stunning example of pouring new politics (here conservative) into old doctrinal bottles (here liberal). The decision reverses the result of earlier precedents but leaves the doctrine undisturbed. 42. Even the relevance of the so-called differences to the ends in view is often obscure. In Regents of the University of California v. Bakke, 438 U.S. 265 (1978), for example, the admission tests that were used to assess qualifications for medical school were presumed valid, rather than validated. There was no inquiry into whether the test scores, which were racially disparate, were relevant to the goal of providing skilled doctors.

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men.43 The inadequacy of the sameness/difference model, and its consequences for equality under law, are strikingly revealed by the law’s treatment of women of color. Discriminated against on the basis of race and sex, interactively and synergistically,44 the situation of women of color should have been improved most under laws addressing both. Instead, the law seems to have them least in mind. First the doctrine had apoplexy trying to decide if their inequality was sex or race. When it faced the fact that it is both at once, women of color were sometimes regarded as different twice over: from the male standard of race and the white standard of sex.45 This reveals a racism in the law of sex and a sexism in the law of race. White women meet the white male standard as white, if not male, and men of color meet the white male standard as male, if not white. Although a good many women of color can meet any substantive standard around, women of color as such meet neither. This treatment of women of color serves to support the view that the implicit standard for equality is what white men value about themselves and each other— an irreduc­ ible minimum of which is often that you be one.46 Attempts to redress women’s inequality through law have almost exclusively continued to adhere to the Aristotelian model rather than challenge it.47 In the older cases on sex, women as a group were legally seen as different from men to the point of lacking legal personhood; thus, for example, in Bradwell v. Illinois, qualified women were not permitted to practice law under a rule that

of

43. This argument is elaborated and documented in chapter 12 of my T oward a Feminist T heory THE State , supra note 23 (discussing sameness and difference as traditional equality theory).

44. Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. CHI. LEGAL F. 139,141-50; Scales-Trent, Black Women and the Constitution: Finding Our Place, Asserting Our Rights, 24 Harv . C.R.-C.L. L. REV. 9 (1989); Note, Conceptualizing Black Women's Employment Experiences, 98 YALE LJ. 1457 (1989); P. Smith, Justice Denied: Black Women and the Search for Equality under Title VII (1990) (M.A. thesis, Yale University, on file with author); see also Matsuda, When the First Quail Calls: Multiple Consciousness as Jurisprudential Method, 11 WOMEN’S RTS. L. REP. 7 (1989) 45. DeGraffenreid v. General Motors Assembly Div., 413 F. Supp. 142 (E.D. Mo. 1976), aff'd in part and rev'd in part, 558 F.2d 480 (8th Cir. 1977); Jeffries v. Harris County Community Action Ass’n, 425 F. Supp. 1208 (S.D.Tex. 1977), aff’d in part and vacated in part, 615 F.2d 1025 (5th Cir. 1980); see also Judge v. Marsh, 649 F. Supp. 770 (D.D.C. 1986) (Title VII plaintiff must pick one primary category of protected discrimination which is directed against a group sharing another protected characteristic). 46. Fortunately, this is not now the leading legal view. Hicks v. Gates Rubber Co., 833 F.2d 1406, 1416 (10th Cir. 1987) (in Title VII case brought by Black woman, evidence of racial and sexual harassment may be “aggregated”); Jeffries v. Harris County Community Action Ass’n, 615 F.2d 1025,1032 (5th Cir. 1980) (Black woman may plead combined race and sex discrimination under Title VII). While this recognition is an improvement, if the law protected people, not categories, from historic subordination, not misclassification, this solution would not have been necessary. 47. Partial exceptions are legal initiatives in the areas of sexual harassment, comparable worth, and pornography. Of these, only sexual harassment has succeeded in the courts to date. See, e.g., Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986) (sexual harassment actionable as sex discrimination); AFSCME v. Washington, 578 F. Supp. 846 (W.D. Wash. 1983) (comparable worth argument accepted as equality claim), rev'd, 770 F.2d 1401 (9th Cir. 1985). In American Booksellers Association v. Hudnut, 771 F.2d 323 (7th Cir. 1985), aff'd, 475 U.S. 1001 (1986), an ordinance making pornography actionable as sex discrimination on an equality theory relying on neither sameness nor difference was invalidated on First Amendment grounds.

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admitted qualified “persons” to the bar.48 The Court in the meantime having recognized that facial sex classifications may violate the equal protection clause, women were given the chance to meet the male standard in some cases. In Reed v. Reed49 for example, the Court invalidated facial statutory preferences for men, requiring that women be equally considered to administer estates. On this level, Reed is to Bradwell as Brown is to Plessy: women went from being categorically different to being putatively the same. Such a recognition looks like progress when it enables one to enter liberal humanity. But having to be the same as men to be treated equally remains the standard.50 So stress on sameness has shaped litigation strategies— which not surprising­ ly have often found male plaintiffs their ideal vehicle51— and provided the dominant interpretation and political strategy of the ERA.52The operative view has been that if classifications that distinguish by sex were eliminated from law, sex equality would be achieved. Some progress, largely but not totally53 limit­ ed to elites, has been made in this way. Some compensation for sex differences, often termed “special protections,” have also been won, but most arguably have been more ideologically denigrating than materially helpful.54 While some situations have been improved, the conditions of inequality that made compen­ sation seem necessary have been altered virtually not at all. The harm of sex discrimination distinctively focused by this approach— the harm of facial classifications— has been largely the harm of stereotyping: assuming all women are the same and/or like some mythic feminine standard, and inherently and irredeemably different from men. To stereotype is to impose 48. Bradwell v. Illinois, 83 U.S. 130 (1872) (privileges or immunities clause does not compel women’s admission to bar); In re Mabel P. French, (1905) 37 N.B.R. 359. 49. 404 U.S. 71 (1971). As I use this term, the male standard is also white and upper-class to a considerable extent, as evidenced by the fact that poor women of color do least well under it. That this standard, as applied to the situations being examined, is not ultimately about race and/or class but gender is suggested by its social meaning content and by the fact that women of the dominant race and/or class do not tend to do well under it either. It is accessible, to a degree, to men regardless of race or class, although it greatly helps men to be white and/or rich. It is also sex specific for men of color. Finally, it is of some interest that, as in Reed, the policies invalidated in most constitutional cases of sex discrimination brought by women involve preferences for men and detriments to women that lack express race or class specificity. 50. A current example is Price Waterhouse v. Hopkins, in which Ann Hopkins was made partner in an accounting firm for meeting the male standard, a victory against holding her to a “femininity” standard. 490 U.S. 228 (1989) (sex discrimination through stereotyping played role in denial of partnership), on remand, 737 F. Supp. 1202 (D.D.C. 1990) (relief granted includes making plaintiff a partner). The victory lies in the recognition of women’s merits when they meet the male standard. The limits lie in the failure to recognize that the standard is a male one. 51. Cole, Strategies of Difference: Litigating for Women’s Rights in a Man’s World, 2 Law & INEQUALITY 33, 34 n.4 (1984) (collecting cases).

52. See MacKinnon, Unthinking ERA Thinking (Book Review), 54 U. CHI. L. REV. 759 (1987), for further discussion. 53. See, e.g.t Califano v. Webster, 430 U.S. 313 (1977) (provision of Social Security Act allowing women to eliminate more low-earning years than men in calculating their retirement benefits compensates them for past discrimination). 54. Kahn v. Shevin, 416 U.S. 351 (1974) (upholding statute giving $500 tax exemption to widows but not widowers); Schlesinger v. Ballard, 419 U.S. 498 (1975) (upholding statutory scheme giving women naval officers longer to be promoted than men before being discharged for lack of promotion).

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a trait or characterization that may be true of some members of a group upon all in the group. As an account of the injury of discrimination, this notion of misrepresentation by generalization is certainly partial, limited, can be trivial­ izing and even perverse. What if the stereotype— such as women enjoy rape— is not really true of anyone? What if, to the extent a stereotype is accurate, it is a product of abuse, like passivity, or a survival strategy, like manipulativeness? What if, to the degree it is real, it signals an imposed reality, like a woman’s place is in the home? What if the stereotype is ideologically injurious but materially helpful, like maternal preference in child custody cases? What if a stereotype is injurious as a basis for policy whether or not accurate, such as the view that women are not interested in jobs with higher salaries? Further, why is it an injury to be considered a member of a group of which one is, in fact, a member? Is the injury perhaps more how that group is actually treated? If sex-based generalizations are the problem of sex inequality under law, what can be done by law about those problems women generally do share? Will a law shaped to correct illusions rather than to confront the problems women have as women be able to face realities to the extent women have women’s prob­ lems? If facial classifications are eliminated in the name of their exceptions, what becomes of those women the exceptions leave behind? This analysis suggests that the law of discrimination, to the extent it centers on empirical accuracy of classification and categorization, has targeted inequality’s failures of perception such that full human variety is not recognized, above inequality’s imposition of commonalities, such that full human variety is not permitted to exist. As this doctrine developed, a grassroots practice of women’s resistance to male dominance also developed, and with it a deeper confrontation with sex inequality. In rape crisis centers, battered women’s shelters, incest support groups, and organizations of former prostitutes against prostitution, for example, nobody experiences anything so taxonomic and generic and neutral and analytic and abstract and empty as sameness and difference. The experiences that brought women there are not encounters with “different treatment,” equally dangerous whether protective or invidious. They meet few illusions except their hopes for a better life. Stereotypes that see them as victims are overtaken by the reality in which they are victimized. Women face violent husbands, abusive fathers, violated children with venereal diseases, little food and no money, no jobs, a home on a shoestring if that, rats, cold, drug dealers, pimps, and cops. They are battered and raped indistinguishably, prostituted by force of violence and economics inseparably, already mothers and pregnant again without once having wanted to be. They live every day with fear, boredom, humiliation, deprivation, desperation, and dependency with no one to depend upon. Whatev­ er sameness they share with men is not working very well, nor are their differences the precious kind. Their screams of pain and terror are not generally

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valorized as a “different voice.” 55 Their difference lies in being on the bottom. It is this hierarchy that defines whatever difference matters, not the other way around, and defeats even most dreams of common humanity. As to the dimen­ sion of femaleness along which this is lived, what happens seems less exactly “based on sex” than because they are women. Tolerance of their differences or abolishing sex as a legal category or getting law more accurately to reflect their individuality is not even a watered-down approximation of what they need. What they need is change: for men to stop hurting them and using them because they are women, and for everyone to stop letting them do it because they are men. Grounded in this world, law for women moved from seeking access to an unchanged legal regime to developing a substantively critical grasp of its tools, toward reshaping the law so that women can use it. Through such efforts, battered women’s normal survival response to years of assault has begun to be reflected in the law of self-defense, so that those situations in which women are most likely to need to kill to save themselves are beginning to shape doctrine.56 State by state, the law of rape is being expanded to include rape in marriage, so that some of the most common rapes in life become rapes in law.57 Some protection has been extended to women testifying as rape victims, shielding their sexual history so they do not become pornography in court.58 Abortion has been largely, if precariously, decriminalized.59 Statutes of limita­ tions in cases of incestuous sexual abuse of children have begun to be extend­ ed.60 The law of the family has been confronted by practitioners and theorists alike as an enforcement of patriarchy, in an attempt to empower women in marital dissolutions and child custody disputes.61 Tort concepts of harm and measures of damages have been scrutinized from the standpoint of women’s

55. See generally C. Gilligan, In a Different voice (1982). 56. State of Washington v. Wanrow, 88 Wash. 2d 221, 559 P.2d 548 (1977); Ibn-Tamas v. United States, 407 A.2d 626, 634 (D.C. 1979); State v. Kelly, 97 N.J. 178, 200,478 A.2d 364, 375 (1984); State v. Norman, 89 N.C. App. 384, 394, 366 S.E.2d 586, 592 (1988). But cf. State v. Thomas, 66 Ohio St. 2d 518, 423 N.E.2d 137 (1981) (expert evidence on battered women’s syndrome inadmissible). See generally L. W alker , th e B attered w o m an Syndrome (1984). 57. See, e.g.t New York v. Liberta, 64 N.Y.2d 152,474 N.E.2d 567 (1984), cert, denied, 471 U.S. 1020 (1985); Warren v. State, 255 Ga. 151, 336 S.E.2d 221 (1985). These laws typically apply, however, only to women who are separated from their husbands rather than to the day-in, day-out rape experienced by many while in a marriage; they often also have express cohabitant exceptions. See generally D. Russell, R ape in M arriage (1990). This area is changing rapidly. See Annotation, Criminal Responsibility of Husband for Rape, or Assault to Commit Rape, on Wife, 24 A.L.R. 4th 105 (1983). 58. See FED. R. EviD. 412. 59. Roe v. Wade, 410 U.S. 113 (1973). 60. See, e.g., C a l . Civ. PROC. CODE § 340.1 (West Supp. 1990); Petersen v. Bruen, 792 P.2d 18 (Nev. 1990); Jones v. Jones, 242 N.J. Super. 195, 576 A.2d 316 (1990); Hammer v. Hammer, 142 Wis. 2d 257, 418 N.W.2d 23 (Wis. Ct. App. 1987); see also Salten, Statutes of Limitations in Civil Incest Suits: Preserving the Victim’s Remedy, 7 Harv. WOMEN’S L.J. 189 (1984). 61. See, e.g., P. CHESLER, MOTHERS ON TRIAL (1986); Fineman, Dominant Discourse, Professional Language and Legal Change in Child Custody Decisionmaking, 101 Harv . L. Re v . 727 (1988).

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situation, in an attempt to encompass women’s injuries.62 The law of contract has been criticized for abstracting from gender by assuming an arm’s length atomism in transactions, and for presupposing behaviors and forms of power that imagine and favor men over women.63 In these instances, women’s legal initiatives have transformed inclusion into change. They have moved from a request to be permitted to play by the rules to an understanding that having no say in the rules means not being permitted to play the game. They have moved from the use of existing doctrine to a critical practice of reconstruction. They have begun to move from advancing within the gender hierarchy to subverting it. Remarkably, sex equality doctrine has largely escaped this kind of critical scrutiny and pressure to reconsider its fundamental precepts.64 Some changes have been made. In some tension with the doctrinal substructure, for example, the law of sex discrimination has been interpreted to cover sexual harassment and amended to cover pregnancy.65 But the potentially larger implications of such initiatives— one involving sexual assault, the other involving reproduc­ tion— for basic sex equality law have been underestimated. If discrimination based on pregnancy is discrimination based on sex, one can be different in a way that perfectly tracks the gender line66 and still be entitled to equal treat­ ment. And if female sexuality is regarded as discriminated against rather than different when women are sexually harassed, given that the line of distinction tracks both biology and sex roles, the law of equality has taken a long step beyond the “similarly situated” requirement. Although implicitly undermined

62. See, e.g., Thurman v. City of Torrington, 595 F. Supp. 1521 (D. Conn. 1984) (on motion to dismiss, failure of police as a matter of policy to protect women complaining of violence by intimate males violates equal protection); Bender, Feminist (RejTorts: Thoughts on The Liability Crisis, Mass Torts, Power, and Responsibilities, 1990 DUKE LJ. 848. Recent legal scholarship has expanded on Thurman's implicit recogni­ tion that police nonenforcement of laws against domestic violence is discrimination against women as a matter of law. Note, Battered Women and the Equal Protection Clause: Will the Constitution Help Them When the Police Won't?, 95 Y ale L.J. 788 (1986); Case Comment, Gender Based Discrimination in Police Reluctance to Respond to Domestic Assault Complaints, 75 GEO. L.J. 667 (1986). 63. Dalton, An Essay in the Deconstruction of Contract Doctrine, 94 YALE L.J. 997, 1000-03 (1985); Frug, Re-reading Contracts: A Feminist Analysis of a Contracts Casebook, 34 AM. U.L. Re v . 1065 (1985). 64. Exceptions include C. Ma c K innon, Sexual Harassment of w orking W omen (1979); Littleton, Reconstructing Sexual Equality, 75 CALIF. L. R ev . 1279 (1987). There has been far deeper and more extensive criticism of the law of racial equality, although it stops short of challenging the “similarly situated” requirement as such. See, e.g., Freeman, Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, 62 MINN. L. REV. 1049 (1978); Lawrence, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317 (1987); texts cited infra note 184. 65. Vinson v. Taylor, 753 F.2d 141 (D.C. Cir. 1985), a ffd sub. nom. Meritor Sav. Bank v. Vinson, A ll U.S. 57 (1986); California Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272 (1987); Pregnancy Discrimination Act of 1978, 42 U.S.C. § 2000e(k) (1982). 66. Meaning, all those who are pregnant, hence discriminated against, are of one sex, even though some of those who are not pregnant, hence not discriminated against, are also of that same sex. Note that this is no different from most cases of sex discrimination, in which not all women may be discriminated against by a policy or practice, but all or most of those who are, are women.

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in these ways,67 neither the “similarly situated” test, nor its statutory version, the comparability requirement, has been exposed as the doctrinal guise of dominance. I do not know of a single American case that has directly chal­ lenged them.68 As a consequence, legal sex equality theory has not been designed to address the substance of most lived sex inequality. At work, for example, most women do jobs that mostly women do.69 So long as the extremity of this segregation can implicitly be considered a sex difference— whether caused by God,70 the nature of things,71 history,72 the market,73 Congress,74 or what women are “interested in”75— sex equality law will be stymied in ending it. The worse the inequality is, the more like a difference it looks. Yet the connec­ tion is not often made that the same notion of difference underlies protection­ ism, rejection of the claim of comparable worth, refusal to address pregnancy as a discrimination issue, and the difficulty of proof in garden-variety sex discrimination cases, even ones in which huge hiring and promotional dispari­ ties exist.76 The more perfect the disparity, the more difficult the showing of discrimination, so long as the basis for disparity is not mythic but real. Until this model based on sameness and difference is rejected or cabined, sex equality law may find itself increasingly unable even to advance women into male preserves— defined as they are in terms of socially male values and biogra-

67. Although these changes occurred first under Title VII, and thus were statutory, not constitutional, it is under the Constitution that the ‘‘similarly situated“ test was developed and has persisted. Pregnancy discrimination has not been recognized as sex discrimination under the Fourteenth Amendment, Geduldig v. Aiello, 417 U.S. 484 (1974), but sexual harassment has, see, e.g.t King v. Board of Regents, 898 F.2d 533, 537 (7th Cir. 1990) (environmental sexual harassment violates equal protection if it is intentional); Trautvetter v. Quick, 916 F.2d 1140, 1151 (7th Cir. 1990) (intentional sexual harassment violates equal protection if claimant shows discrimination was because of her status as a female and not because of characteristics of her gender which are personal to her). 68. This approach has been challenged in Canada. In Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, the Supreme Court of Canada, interpreting the new equality provision of The Canadian Charter of Rights and Freedoms (the Canadian constitution) unanimously rejected the “similarly situated” test as “seriously deficient” for producing equality, id. at 166, and adopted the approach based on substantive historical disadvantage advanced here. In so doing, that Court noted that “the similarly situated test would have justified the formalistic separate but equal doctrine of Plessy v. Ferguson.” Id.; see also Regina v. Turpin, [1989] 1 S.C.R. 1296. 69. U.S. Equal Employment Opportunity C omm ’ n , job Patterns for minorities and W omen IN Private Industry —1986, at 1 ( 1988) (occupational distribution by race and sex); C omparable W orth : N ew D irections for research 3 (H. Hartmann ed. 1985); C omparable W orth, Pay equity , and Public Policy 32-39 (1988). 70. Brad well v. Illinois, 83 U.S. 130, 141 (1872).

71. Id. at 142; cf. Plessy v. Ferguson, 163 U.S. 537, 551 (1896). 72. Lemons v. Denver, 17 Fair Empl. Prac. Cas. (BNA) No. 906 (Apr. 17, 1978), aff’d, 620 F.2d 228 (10th Cir.), cert, denied, 449 U.S. 888 (1980). 73. AFSCME v. Washington, 770 F.2d 1401, 1408 (9th Cir. 1985). 74. Rostker v. Goldberg, 453 U.S. 57,72 (1982) (women “not similarly situated” for purposes of draft registration because Congress has excluded women from combat). 75. EEOC v. Sears, 628 F. Supp. 1264, 1305 (N.D. 111. 1986), aff'd, 839 F.2d 302 (7th Cir. 1988). 76. EEOC v. Sears is the cardinal example. Mary Becker makes this connection in From Muller v. Oregon to Fetal Vulnerability Policies, 53 U. CHI. L. Rev. 1219 (1986).

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phies77— for the same reason it cannot get courts to value women’s work in spheres to which women remain confined. Such a law can prohibit holding women to feminine standards in the workplace but not holding them to mascu­ line ones.78Designed for the exceptional individual whose biography approxi­ mates the male one, this approach cannot touch the situation of most women, where the force of social inequality effectively precludes sex comparisons. Because the “similarly situated” requirement continues to control access to equality claims, the laws of sexual assault and reproductive control— areas as crucial in the social construction of women’s inferior status as they are laden with misogyny— have not been seen as amenable to constitutional sex equality attack. Comparatively few men are raped and no men are denied abortions; gender comparisons are therefore unavailable or strained. So sexuality and procreation become happy differences or unhappy differences but never im­ posed inequalities. The legal system’s treatment of rape as illegal under law while overwhelmingly permitted in fact79 is thus not regarded as state action that discriminates on the basis of sex, nor is criminalizing or refusing to fund a medical procedure that only women need. First there must be similarly situated men with whom to compare. Men’s comparative lack of sexual and reproductive violation is not visible as a lack because it is relatively unthinkable that men would be hurt in these ways.80 As a result, when sex inequality is most extreme— most victims of sexual assault with impunity and all those denied legal or funded abortions are women— it drops off the sex inequality map. These are the social practices of dominance which create the gender difference as we know it. When the “similarly situated” assumption is revealed as the white male standard in neutral disguise, the fist of dominance in the glove of equality, the continuity with Plessy and Bradwell beneath the victories of Brown and Reed, dominance essentialized as difference becomes first on the equality agenda rather than last.

77. See, e.g., EEOC v. Sears, 839 F.2d 302, 313 (7th Cir. 1988). 78. See, e.g„ Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). 79. See infra notes 107-10 and accompanying text. 80. For a lucid analysis of sexual assault of men by men, see Scott, Between Men and WomenlBetween Men and Men: Male Rape and Straight Man’s Law, 1 Stan . J.L. GENDER & SEX. ORIENT, (forthcoming 1991).

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II it’s not so good to be born a girl/sometimes. Ntozake Shange81 Women don’t get half as much rights as they ought to; we want more, and we will have it. Sojourner Truth82 The inequality of women to men deserves a theory of its own. The status of women resembles other bases for inequality, but, like every inequality, is also particular and unique. Women’s situation combines unequal pay with allocation to disrespected work; sexual targeting for rape, domestic battering, sexual abuse as children, and systematic sexual harassment; depersonalization, demeaned physical characteristics, and use in denigrating entertainment; depri­ vation of reproductive control and forced prostitution.83 These abuses have occurred, in one form or another, for a very long time in a context characterized by disenfranchisement, preclusion from property ownership, ownership and use as object, exclusion from public life, sex-based poverty, degraded sexuality, and a devaluation of women’s human worth and contributions throughout society. Like other inequalities, but in its own way, the subordination of women is socially institutionalized, cumulatively and systematically shaping access to human dignity, respect, resources, physical security, credibility, membership in community, speech, and power. Composed of all its variations, the group women has a collective social history of disempowerment, exploitation, and

81. N. SHANGE, THREE PIECES 135 (1981). 82. As quoted in 1 E. STANTON, S. ANTHONY & M. G age , supra note 12, at 568. 83. This description has the developed West primarily, but not exclusively, in mind. In other cultures, the specific means differ but the ends of sexualized inferiority are the same. For example, purdah, the style of veiling prevalent in India and Pakistan, completely swathes women in layers of veils, marking women as sexually disruptive social entities requiring control and public segregation. They are different, physically shameful, and owned by men. The practices of clitoridectomy and infibulation, common in some parts of Africa, inflict genital mutilation—ranging from incision to complete removal of the clitoris and labia—upon pre-adolescent girls. These ritualistic abuses inscribe and express genital hostility, filth, and sexual control. See L. Sanderson , F emale G enital M utilation, Excision and Infibulation: A bibliography (1986). As to women’s economic inequality in the United States, one finds that from the 1950’s to the 1970’s, the ratio of Black women’s earnings to Black men’s has narrowed from slightly over half to 75%. For whites, it has widened. In 1955, white women earned two-thirds of men’s earnings. In the mid-1960’s through 1980, they earned less than 60%. In 1982, white women’s earnings were 62% of white men’s, the highest since 1958. Among women, the gap between Blacks and whites narrowed considerably from 1955, when Black women earned about half of what white women earned, to 1982, when the difference was less than 10%. R. S imon & J. L andis , The C rimes W omen C ommit, T he Punishments They Receive 35-37 (1991). Even as this paltry progress was made in women’s income relative to men’s, men’s average income dropped. And as women’s share of employment has increased, so has their share of poverty. While men who are poor tend to be unemployed, women who are poor tend to be working full time—many at marginal jobs after divorce. K. Phillips, T he Politics of Rich and poor 202-03 (1990).

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subordination extending to the present.84 To be treated like a women is to be disadvantaged in these ways as an incident of being assigned to the female sex. To speak of social treatment “as a woman” is thus not to invoke any universal essence or homogeneous generic or ideal type, but to refer to this diverse material reality of social meanings and practices such that to be a woman “is not yet the name of a way of being human.” 85 In this context, the failure of the law of sex equality to address sexual abuse and reproductive exploitation stands out. The law typically considers these abuses, cardinal experiences of sex inequality,86 to be crimes or privacy viola­ tions, not acts of sex discrimination. Equality doctrine does not seem to fit them. Equality law privileges recognition of facial classifications, in which the group descriptor is the legal inequality, because such devices have enforced much racial inequality. For the most part, the laws of sexual assault and reproductive control do not mention women or men, not any more. Yet these laws are not exactly neutral with an adverse impact either, at least not in the usual sense. They are too gendered to be neutral, and any law on rape or pregnancy affects the sexes differentially, without necessarily being discrimi­ natory. Existing legal equality templates utterly fail to capture the particular way in which the legal system organizes its participation in the subordination of women.87 Consider whether the law of sex classifications has the same relation to the realities of women’s subordination as the law of racial classifications has to the realities of racial subordination. Does a law preferring men as administra­ tors of estates88 have the same relation to women’s subjection as a law pre­ scribing “white only” railway cars has to racial subordination? Does a law prohibiting eighteen- to twenty-year-old boys in Oklahoma from drinking 3.2% beer while permitting it to girls89 have the same relation to sex inequality as a law requiring Black children in Kansas to attend racially segregated schools has to racial inequality? I mention the two seminal sex discrimination cases to suggest that facial sex classifications may be relatively peripheral to women’s

84. The Women’s Legal Education and Action Fund of Canada advanced this description as the meaning of substantive inequality, a concretely based definition to be preferred to abstract differentiation. See Factum of the Women’s Legal Education and Action Fund of Canada (LEAF) paras. 49-53, at 21-23, Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 (Nos. 19955, 19956). In Andrews, the Supreme Court of Canada adopted an interpretation of constitutional equality consistent with this substantive approach. 85. R. Rorty, Feminism and Pragmatism (Dec. 7,1990) (unpublished paper delivered as Tanner Lecture at University of Michigan, on file with author) (“MacKinnon’s central point, as I read her, is that ‘a woman’ is not yet the name of a way of being human . . . . ”). Elizabeth Spelman completely misses this concrete meaning of the phrase “as a woman” in her critique of its use in feminism. See generally E. SPELMAN, supra note 32. 86. Andrea Dworkin provides a superb analysis of the joint role of sexual abuse and deprivation of reproductive control in women’s politics in A. Dworkin , Right-wing W omen (1983).

87. They also leave out of account a good deal of racial subordination. 88. Reed v. Reed, 404 U.S. 71 (1971). 89. Craig v. Boren, 429 U.S. 190 (1976).

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inequality, including by law. For claims based on sex, what the constitutional inequality net is made to catch has always been relatively rare and is now virtually extinct, while sex inequality, including through law, remains predatory and flourishing. Much sex inequality is successfully accomplished in society without express legal enforcement and legitimation. Yet the law is deeply implicated in it. Law actively engages in sex inequality by apparently prohibiting abuses it largely permits, like rape, and by hiding the deprivations it imposes beneath ostensibly gender-neutral terms, like abortion. In the areas of sexual assault and reproduc­ tive control specifically, these legal concepts have been designed and applied from the point of view of the accused rapist and the outsider/impregnator respectively, and in the absence of the point of view of the sexually assaulted or pregnant woman. Most of the sexual assaults women experience do not fit the legal model of the ideal violation. Most rapes are by familiars not strangers, by members of one’s own ethnic group not others, at home not on the street.90 The notion of consent here, the law’s line between intercourse and rape, is so passive that a dead body could satisfy it.91 The law of rape is designed so that rape is what somebody else does and what almost never happens: so that what is done all the time, presumably including by those who design and interpret and enforce the laws, can be done.92 Similarly, when convenient to do away with the consequences of sexual intercourse (meaning children), women get abortion rights. Women can have abortions so men can have sex.93 When not convenient, and for those men who seek to control women through controlling their children instead of through controlling their ability to have them, and for those women (such as women of color) for whom more drastic means are deemed more convenient, women

90. M. AMIR, FORCIBLE Rape 44 (1971) finds that 90% of rapes are intraracial. The rapist is a stranger in only 17% of all incidents, but in 55% of those reported to police. D. RUSSELL, SEXUAL EXPLOITATION 96-97 (1984) [hereinafter D. Russell , S exual Exploitation]; see also D. Russell , supra note 57, at 66-67. A recent study for the Department of Justice shows that in rapes with one offender, 7 of every 10 white victims were raped by a white offender, and 8 of every 10 Black victims were raped by a Black offender. C. Harlow , fem ale V ictims of V iolent C rime 10 (1991). 91. A. Dworkin , Intercourse 129 (1987) (“Consent in this world of fear is so passive that the woman consenting could be dead and sometimes is.”); S. Estrich, R eal Rape 29-41 (1987) (originally through resistance requirement, passive submission amounts to consent in law of rape); see also State v. Alston, 310 N.C. 399, 312 S.E.2d 470 (1984) (woman’s passivity supports finding of insufficient force for rape conviction). 92. See C. MACKINNON, supra note 23, at 171-83. 93. While women may actually have abortions for many reasons, the formulation in the text, which owes much to Elizabeth Shilton, is a systemic point about why abortions are permitted. As documentation, consider this pungent juxtaposition: Juli Loesch, a self-styled “pro-life feminist” associated with Operation Rescue, says, “the idea [of abortion] is that a man can use a woman, vacuum her out, and she’s ready to be used again[.]” A NOW chapter advises feminists involved with anti-choice men to “[c]ontrol his access to your body. ‘Just say no’ to more sex[.]” . . . Pro- and anti-choice women meet on common ground Baer, Book Review, 52 J. POL. 1012 (1990) (citations omitted); see also A. DWORKIN, supra note 86, at 138-39.

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are deprived of procreative choice through sterilization abuse the law either actively promotes or fails to recognize or redress,94 forced obstetrical interven­ tions the law permits,95 fetal rights the law defines against women’s rights,96 and criminalized and unfunded and bureaucratically burdened abortions the law deems adequate.97 In this light, the theme of the laws of sexual assault and reproduction is male control of, access to, and use of women. Women are sexually assaulted because they are women: not individually or at random, but on the basis of sex, because of their membership in a group defined by gender.98 Forty-four percent of women in the United States have been or will be victims of rape or attempted rape at least once in their lives.99 Women of color experience disproportionately high incidence rates.100 In one 94. “Compulsory sterilization for eugenic reasons was legal in Puerto Rico during the years 1937 to 1960___ The total number of people undergoing compulsory sterilization for such reasons in this period has not been estimated.” H. PRESSER, STERILIZATION AND FERTILITY DECLINE IN PUERTO Rico 6 n.2 (1973); see also 1937 P.R. Laws 267 (repealed 1960) (providing for involuntary sterilization under variety of circumstances); Madrigal v. Quilligan, No. CV 75-2057, slip op. (C.D. Cal. 1978) (unpublished) (refusing to recognize or remedy sterilization of Chicanas at U.S.C.-Los Angeles County Medical Center, allegedly without their knowledge or informed consent), cited in Velez-I., The Nonconsenting Sterilization of Mexican Women in Los Angeles, in T wice A Minority : Mexican A merican W omen 235, 242-46, 248 n.4 (M. Melville ed. 1980), aff'd, 639 F.2d 789 (9th Cir. 1981). The experiences of the individual plaintiffs in Madrigal are further discussed in Hernandez, Chicanas and the Issue of Involuntary Sterilization: Reforms Needed to Protect Informed Consent, 3 CHICANO L. R e v . 3, 4-9 (1976). Thirty-nine percent of married women are currently sterilized in Puerto Rico, some voluntarily. D ep ’t of In t ’ l Economic & S ocial A ffairs, recent L evels and T rends of C ontraceptive U se as A ssessed in 1983, at 32 (1984). Ramirez de Arellano and Seipp explain that “[w]hile it is difficult to prove that the choice made by thousands of Puerto Rican women [to be sterilized] was not voluntary, it can nevertheless be argued that this choice was conditioned and constrained by the surrounding social framework. Medical authority, eugenist ideology, machismo, restricted employment opportunities, and the lack of other birth control alternatives were all factors that limited women’s options.” A. Ra m Irez de ARELLANO & C. S eipp, C olonialism , C atholicism , and C ontraception 144 (1983) (footnote omitted). 95. In re A.C., 533 A.2d 611 (D.C. 1987) (cesarean section ordered for terminally ill pregnant woman), reh'g granted and judgment vacated, 539 A.2d 203 (D.C. 1988), on reh’g, 573 A.2d 1235 (D.C. 1990); Jefferson v. Griffin Spalding County Hosp. Auth., 247 Ga. 86, 274 S.E.2d 457 (1981) (pregnant woman ordered to submit to cesarean section); In re Jamaica Hosp., 128 Misc. 2d 1006, 491 N.Y.S.2d 898 (N.Y. Sup. Ct. 1985) (forced blood transfusion to pregnant woman ordered to save her life or that of unborn child); Raleigh Fitkin-Paul Morgan Memorial Hosp. v. Anderson, 42 N.J. 421,201 A.2d 537, (same) cert, denied, 337 U.S. 985 (1964). 96. See cases cited infra note 130. 97. Bureaucratic burdens on abortions enacted by state legislatures include, in addtion to prohibitions on public funding, prohibitions on abortions in public facilities, prohibitions on abortion counseling by public employees, elaborate viability determination provisions, parental consent and notification requirements for minor girls, and licensing and other regulation of abortion facilities. Greenberg, State Abortion Laws and the Webster Decision, STATE LEGIS. REP., Aug. 1989, at 7-9. 98. The following argument was developed in collaboration with colleagues at LEAF and argued in interventions before the Supreme Court of Canada, including in the Factum of The Women’s Legal Education and Action Fund (LEAF), The Queen v. Canadian Newspapers Co., [1988] 2 S.C.R. 122 (No. 19298) (on file with author). 99. D. Russell , Sexual Exploitation, supra note 90, at 35. 100. The following percentages of women report being victimized at least once by rape or attempted rape: white (non-Jewish), 45%; Jewish, 50%; Black, 44%; Latina, 30%; Asian, 17%; Filipina, 17%; Native American, 55%; other, 28%. Note that these figures refer to the proportions of women victimized and say nothing of the number of times they were victimized. D. R ussell , S exual Exploitation, supra note 90, at 84; see also Wyatt, The Sexual Abuse of Afro-American and White-American Women in Childhood, 9 C hild A buse & N eglect 507 (1985) (57% of African American women and 67% of white American women report at least one incident of sexual abuse before age 18).

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random sample study, only 7.5% of American women reported encountering no sexual assault or harassment at any time in their lives.101 Females— adults and children— make up the overwhelming population of victims of sexual assault. The perpetrators are, overwhelmingly, men. Men do this to women and to girls, boys, and other men, in that order. Women hardly ever do this to men. Sexual violation symbolizes and actualizes women’s subordinate social status to men. It is both an indication and a practice of inequality between the sexes, specifically of the low status of women relative to men. Availability for aggressive intimate intrusion and use at will for pleasure by another defines who one is socially taken to be and constitutes an index of social worth. To be a means to the end of the sexual pleasure of one more powerful is, empiri­ cally, a degraded status and the female position. In social reality, rape and the fear of rape operate cross-culturally as a mechanism of terror to control women. To attempt to avoid it, women are constrained in moving about in the world and walk down the street with their eyes averted.102 Rape is an act of domi­ nance over women that works systemically to maintain a gender-stratified society in which women occupy a disadvantaged status as the appropriate victims and targets of sexual aggression.103 Sexual aggression by men against women is normalized. In traditional gender roles, male sexuality embodies the role of aggressor, female sexuality the role of victim, and some degree of force is romanticized as acceptable.104 Sexual assaults frequently occur in the context of family life or everyday social events, often perpetrated by an assailant who is known to the victim.105 In one study, one-third of American men in the sample say they would rape a woman if assured they would not get caught. The figure climbs following exposure to commonly available aggressive pornography.106 Pornography, which sexualizes gender inequality, is a major institution of socialization into 101. Diana Russell made this calculation on her data base at my request. 102. M. Gordon & s. Riger , the Female fear (1989). 103. S. B rownmiller , supra note 26, at 15; Sanday, The Socio-Cultural Context o f Rape: A CrossCultural Study, 37 J. Soc. ISSUES 5 (1981). 104. D. Scully , Understanding Sexual V iolence 47-50,59-92 (1990) (rape as “ normal deviance’' for men); J. Stoltenberg , Refusing to be a M an 15 (1989) (rape central to masculinity); Check & Malamuth, An Empiricial Assessment of Some Feminist Hypotheses About Rape, 8 INT’L J. WOMEN’S STUD. 414 (1985) (rape and forced sex widespread and largely acceptable). 105. D. Russell , supra note 57, at 64-68; see also P. SANDAY, FRATERNITY GANG RAPE (1990). 106. Malamuth, Rape Proclivity Among Males, 37 J. Soc. ISSUES 138 (1981); Malamuth & Check, The Effects of Mass Media Exposure on Acceptance of Violence Against Women: A Field Experiment, 15 J. RES. PERSONALITY 436 (1981); Malamuth, Aggression Against Women: Cultural and Individual Causes, in Pornography AND S exual A ggression 22-23 (1984); Malamuth & Check, The Effects of Aggressive Pornography on Beliefs in Rape Myths: Individual Differences, 19 J. RES. PERSONALITY 299 (1985); Check & Guloien, Reported Proclivity for Coercive Sex Following Repeated Exposure to Sexually Violent Pornography, Nonviolent Dehumanizing Pornography, and Erotica, in PORNOGRAPHY: RESEARCH ADVANCES AND POLICY CONSIDERATIONS (1989); see also Linz, Exposure to Sexually Explicit Materials and Attitudes Toward Rape: A Comparison of Study Results, 26 J. SEX R es. 50 (1989); Russell, Pornography and Rape: A Causal Model, 9 POL. PSYCHOLOGY 41, 43-45 (1988). Pornography is also implicated in the domestic battering of women. Sommers & Check, An Empirical Investigation of the Role of Pornography in the Verbal and Physical Abuse of Women, 2 VIOLENCE & VICTIMS 189 (1987).

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these roles. The evidence suggests that women are targeted for intimate assault because the degradation and violation and domination of women is eroticized, indeed defines the social meaning of female sexuality in societies of sex inequality. Sexual assault thus becomes a definitive act of sexualized power and masculinity under male supremacy. Only a fraction of rapes is reported, the most frequently mentioned reason for nonreporting being fear of the criminal justice system. Women of color fear its racism particularly. Only a fraction of reported rapes is prosecuted. Many rapes are “unfounded,” an active verb describing the police decision not to believe that a rape happened as reported.107 Only a fraction of prosecuted rapes results in convictions. Rape sentences are often short. Most rapists there­ fore continue to live in society either undetected or unpunished and unrehabilitated. In many instances, one must suppose that they remain unaware that they did anything even potentially culpable.108 Perhaps these data are viewed with complacency on the unconscious belief that sexual assault is inevitable or a constant that cannot be taken seriously because it is so common. Perhaps sexual assault would not be so common if it were taken seriously. Seen in this way, sexual assault in the United States today resembles lynch­ ing prior to its recognition as a civil rights violation. It is a violent humiliation ritual with sexual elements in which the victims are often murdered. It could be done to members of powerful groups but hardly ever is. When it is done, it is as if it is what the victim is for; the whole target population cringes, withdraws, at once identifies and disidentifies in terror. The exemplary horror keeps the group smaller, quieter, more ingratiating. The legal system is domi­ nated by members of the same group engaged in the aggression. The practice is formally illegal but seldom found to be against the law. The atrocity is de jure illegal but de facto permitted. Unlike the law of murder, however, before the rape law is administered, it is biased on its face.109 Rape is typically defined as intercourse with force against one’s will. Apparently this is not considered redundant, implying that women consent to sex with force all the time. Given this sadomasochistic definition of sex at the line between intercourse and rape, it is no wonder that the legal concept of consent can coexist with a lot of force. Crystallizing in doctrine a norm that animates the rape law more generally, the defense of “mistaken belief in consent” defines whether a rape occurred from the perspec-

107. S. ESTRICH, supra note 91, at 15-20 (1987) (summary of legal system’s response to rape). In Oakland, California recently, after disclosure that 1 in 4 reported rapes and attempted rapes in 1989 were “unfounded” by the Oakland Police, an investigation revealed that 79 of the 112 alleged rapes reviewed did in fact occur. Police conceded that some victims, many of whom were “cocaine users, prostitutes, or acquainted with their assailants,” were never interviewed by investigators after the initial report. Prosecution Seen as Unlikely in 228 Rape Cases in Oakland, N.Y. Times, Nov. 13, 1990, at BIO, col. 1. 108. S. Smithyman, The Undetected Rapist (1978) (Ph.D. dissertation, Claremont Graduate School, on file with author). 109. See C. M ac K innon , supra note 23, at 171-83.

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tive of the accused rapist, not from the perspective of the victim or even based on a social standard of unacceptable force or of mutuality.110 To a degree unlike any other crime to the person, the credibility of the victim is the issue on which turns whether any harm was done. Only in sexual assault cases is it believed, against the victim’s statement to the contrary, that she may have consented to forced acts against her. The view that women seek out and enjoy forced sex is pure special pleading for the accused. This is the perspective the law has taken. A major exception in application has been accusations by white women of sexual assault by African American men— a relatively rare type of rape.11112 Here the usual presumption that the woman consented turns to the opposite on racist grounds: because the man is Black, she could not have wanted it. The possibility exists that prosecutions under such conditions can be successful independent of whether a rape occurred or of whether the particular defendant was the perpetrator. At the same time, women of color, overwhelmingly the victims of the sexual assaults men of color do perpetrate, are often faced with the necessity of siding with men of color on grounds of community selfpreservation. Statistically, such a legal posture makes it more possible to convict when a sexual assault is less likely to have occurred, and next to impossible to convict when one is more likely to have occurred. It is not in women’s interest to have men convicted of rape who did not do it, any more than it is in women’s interest not to have men convicted of rape who did. Not only the law, but the credibility of women— that rare commodity— is under­ mined. Women and men are not similarly situated with regard to sexual assault in the sense that they are not equally subject to it or equally subjected to it. But this is the inequality that indicts it, not the difference that exonerates it or exempts it from equality scrutiny. The one case in which the Supreme Court adjudicates the constitutionality of a sexual assault statute in the sex equality context misses this point entirely. Michael M.m challenges the California statutory rape law as sex-discriminatory because it makes only males criminals 110. D.P.P. v. Morgan, [1975] 2 W.L.R. 913, 2 All E.R. 347; Pappajohn v. The Queen, (1980) 111 D.L.R.3d 1; People v. Mayberry, 15 Cal. 3d 143, 542 P.2d 1337, 125 Cal. Rptr. 745 (1975). 111. Reporting rates may be higher for interracial rape of white women because white women may perceive they are more likely to be believed in such cases. LaFree, Male Power and Female Victimization: Toward a Theory of Interracial Rape, 88 AM. J. SOC. 311 (1982). In one study, Black men also appear to be slightly overrepresented in the stranger rape category. D. R u s se ll , S e x u a l E x plo ita tio n , supra note 90, at 98-99. That the white male attention to this comparatively rare pattern in rape is a deadly obsession is supported by the fact that almost 90% of those executed for rape from 1930 to 1980 were Black men convicted for the rape of white women. Greenberg, Capital Punishment as a System, 91 Y a le L.J. 908, 912 (1982). 112. Michael M. v. Superior Court of Sonoma County, 450 U.S. 464 (1981). Justice Blackmun wrote separately, adding a fifth vote to uphold the statute, but did not mention biology as a reason. He pointed out the tension between the plurality’s recognition of sex equality issues in teenage pregnancy and their failure to see the same issues in the abortion context. Id. at 481-83 (Blackmun, J., concurring in the judgment).

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for having sex with underage girls. The plurality upheld the statute on grounds that underage females could validly be protected from sex because they were likely to become pregnant. The dissent would have invalidated the statute, among other reasons, because it did not equally criminalize the two participants in the crime and because it embodied the invidious stereotype that men usually aggress in sex. The plurality opinion grasped the sex-differential reality at the cost of attributing it to biology. The dissent understood the reality of sexual assault of girls to be socially created rather than biological, at the cost of failing to understand it as nonetheless gender-based. The plurality saw a hierarchy but thought it was biologically fixed. The dissent saw the possibilities for change, but missed the hierarchy. The plurality allowed a sex difference— potential pregnancy— to render girls “not similarly situated” and to support a sex-differential statute that divides women by age. Never mind that many of those protected cannot become pregnant and more of those not protected can, that young boys are sexually assaulted too (usually by older males), and that girls do not lose their vulnerability to sexual coercion upon turning eighteen. The dissent revealed more concern with avoiding the stereotyping attendant to the ideological message the law communicated than with changing the facts that make the stereotype largely true. In the interest of opposing facial distinctions and debunking the supposed myth of male sexual aggression, the fact that it is overwhelmingly girls who are sexually victimized by older males for reasons wholly unrelated to their capacity to become pregnant was completely obscured. The facts of social inequality, of sex aggravated by age, that could have supported particular legislative attention to the sexual assault of girls were not even considered. Underage girls form a credible disadvantaged group for equal protection purposes when the social facts of sexual assault are faced, facts which prominently feature one-sided sexual aggression by older males.113 It seems that in order to imagine equality, one must first be blind to inequality, and to see inequality blinds one to seeing that equality is possible. Perhaps this case reveals the reason that the law of sexual assault has never been held to sex equality standards, at the same time as providing clues to the reason equality is defined in terms of sameness and difference in the first place. Sexuality, hence sexual assault, is believed by many to be biological, a natural part of the so-called sex difference. We are dealing here with the assumption that rape is inevitable in gendered biology. If explicitly embodied in law, such an assumption ought to violate equal protection of the laws. In fact, in Dothard v. Rawlinson, it has been found to be a nondiscriminatory reason for excluding women from some employment, equating capacity to be raped with membership

113. D. R ussell , S exual Exploitation, supra note 90, at 184-85,215-31; D. R ussell , the S ecret TRAUMA 217, 222 (1986). Note that the majority of perpetrators in all cases of sexual abuse of girls have been found to be nonstranger nonrelatives, id. at 219, like the situation in the Michael M. case.

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in the female gender.114 What it comes down to is that the most extreme instances of sex inequality in society are considered sex differences, hence reasons equality law does not apply, as in Michael M., or reasons discrimination can be openly justified, as in Dothard. Men can be raped, and sometimes are. That alone should suggest that the overwhelming numbers of women in the rape victim population expresses inequality, not biology. Will rape have to be comparably common in and definitive of men’s status before women can be found deprived of equal protection of the laws when they are raped with legal impunity? How much legal impunity will it take before the law of sexual assault— its terms, enforcement, nonenforcement, and interpretation— is recog­ nized as sex discrimination? Sexual assault, in this argument, has a special place in women’s social status and the law of sexual assault has a distinctive place in the history of women’s oppression by government. There is no lack of atrocities disclosing judicial bias by courts in sexual assault adjudications.115 Condescending, demeaning, hostile, humiliating, and indifferent judicial treatment of female victims of sexual assault is not uncommon.116 Government commits this in­ equality and should rectify it. Law has a choice. It can inscribe this misogyny on society yet more authoritatively, promoting sex inequality, or it can move against it by promoting sex equality. Sexual assault cannot be treated as gender neutral because sexual assault is not gender neutral. The law of sexual assault

114. Dothard v. Rawlinson, 433 U.S. 321, 336 (1977) (women’s capacity to be raped, termed their “very womanhood,” justifies state regulation disqualifying female employees from contact positions in men’s prison). Male gender, then, constituted a bona fide occupational qualification (BFOQ) for the job. Thus does sexual assault define gender as such. 115. See generally Judicial C ouncil A dvisory C omm , on G ender B ias in the C ourts, A chieving Eq ual Justice for W omen and M en in the C ourts (Draft Report 1990) (California); New Jersey S upreme C ourt T ask Force on W omen in the C ourts, the first ye a r report of the N ew Jersey S upreme C ourt T ask Force on W omen in the C ourts (1984); new jersey supreme C ourt T ask Force on W omen in the C ourts, T he Second R eport of the N ew Jersey T ask Force on W omen IN THE COURTS (1986); Report of the New York Task Force on Women in the Courts, 15 FORDHAM URB.

L.J. 11 (1986-87); see also Schafran, Documenting Gender Bias in the Courts: The Task Force Approach, 70 Judicature 280 (1987). The California report documents that women victims, witnesses, and expert witnesses were generally perceived as less credible than men, and women lawyers as less competent. Judicial C ouncil adviso ry C omm , on G ender bias in the C ourts, supra, tab 4, at 59, 61. It also shows that legal areas which disproportionately affect women and children, such as family law, are allocated fewer court resources. Id. tab 5, at 82-93. 116. Recently cited in testimony by NOW before the Senate Judiciary Committee are the following cases, which could be picked virtually at random from a newspaper. In 1982, a Wisconsin judge called a five-year-old victim “ ‘an unusually sexually promiscuous young lady.’” In 1987, another Wisconsin judge sentenced a defendant to only 90 days in jail for four felony sexual assault convictions involving two 15-year-old girls. In that case, the judge commented favorably on the defendant’s appearance and personality at sentencing, stating he “ ‘could have had the pick of the flock; unfortunately he spread it around.’” In 1986, a Pennsylvania judge declared a defendant not guilty of attempted rape and aggravated assault despite a police witness to the attack, stating: ‘“This was an unattractive girl and you are a good-looking fellow. You did something . . . stupid.’” Women and Violence: Hearing Before the Senate Comm, on the Judiciary on Legislation to Reduce the Growing Problem of Violent Crime Against Womeny 101st Cong., 2d Sess. 66-67 (1990) (Statement of NOW Legal Defense and Education Fund).

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cannot be treated as private action because it is government action.117 Women are not receiving equal protection of the laws. The equal protection clause is inconsistent with state law that promotes sex inequality. The law of sexual assault commands Fourteenth Amendment scrutiny.118 Sexual assault is already seen as gendered in the Supreme Court’s treatment of the statute in Michael M. as facial sex discrimination against men, apparently as a result of its use of the term “sexual intercourse.” 119 Sexual assault is squarely understood as a form of sex discrimination in the recognition that sexual harassment, which can include sexual assault, is actionable sex-based discrimination.120 Just as women are sexually harassed based on their sex, women are sexually assaulted based on their sex. Both forms of treatment (which overlap) are categorical and group-based. Men, usually heterosexual, harass and rape women.121 Any woman within the ambit of such a man is his potential victim and, when she is harassed, is disadvantaged because of her sex. But for her sex, she would not be so treated.122 Similar to the way Title VII governs the workplace, the criminal law of sexual assault, governed by the Fourteenth Amendment, would set sex equality standards for society at large. Deprivation of equal access to justice because one is a woman is deprivation of equal protection of the laws on the basis of sex. This analysis offers a constitutional basis for defending sexual history exclusions from fair trial attacks123 and for upholding publication bans on names and identifying infor117. Obviously, action by states is state action. This traditionally includes state criminal statutes and their interpretation, as well as acts of government officials such as police. There are many legal nuances and constraints to the state action doctrine, but this facet of the argument raises none of them. See generally L. T ribe, A merican C onstitutional L aw 1688-1720 (2d ed. 1988). 118. A pioneering attempt to advance this argument, in spite of its lack of questioning of equal protection doctrine and its acceptance of some biological arguments, is Berger, Mans Trial, Woman’s Tribulation: Rape in the Courtroom, 77 COLUM. L. REV. 1 (1977) (use of sexual conduct or reputation evidence to show consent violates Fourteenth Amendment sex equality). Supportive related arguments include Comment, Rape in Illinois: A Denial of Equal Protection, 8 J. M arshall J. Prac . & PROC. 457 (1975) (disparate evidentiary rules treating rape of vagina less favorably than forced anal or oral sex constitutes sex discrimination against women in violation of equal protection clause of Illinois Constitution); West, Equality Theory, Marital Rape, and the Promise of the Fourteenth Amendment, 42 Fl a . L. Re v . 45 (1990) (excluding married women from coverage by rape law denies equal protection). 119. “Section 261.5 defines unlawful sexual intercourse as ‘an act of sexual intercourse accomplished with a female not the wife of the perpetrator, when the female is under the age of 18 years.’ The statute thus makes men alone criminally liable for the act of sexual intercourse.” Michael M. v. Superior Court, 450 U.S. 464, 464 (1981). Note that the statute does not mention men. 120. Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986). 121. It is also arguable that men who are raped (usually by men) are raped as men, as well as feminized in the process. Thus rape of men by men, and its unfavorable treatment by law, could also be seen as sex discrimination. 122. Barnes v. Costle, 561 F.2d 983,990 (D.C. Cir. 1977) (“[bjut for her womanhood” plaintiff would not have been sexually harassed); cf Orr v. Orr, 440 U.S. 268, 295 (1979) (Rehnquist, J., dissenting) (“but for his sex” test should be used to deny standing to man challenging law precluding alimony awards to men). 123. This argument would support the results, and likely a stronger statutory exclusion, in cases like People v. Blackburn, 56 Cal. App. 3d 685, 128 Cal. Rptr. 864 (1976) (upholding constitutionality of rape shield statute against fair trial attack), and People v. McKenna, 196 Colo. 367, 585 P.2d 275 (1978) (upholding rape shield statute against separation of powers and Sixth Amendment confrontation attack). The Women’s Legal Education and Action Fund of Canada argues in Seaboyer v. The Queen and Gayme

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mation of sexual assault victims against First Amendment challenges.124 It supports a constitutional appeal whenever a court engages in judicial sexism in a sexual assault trial, a basis for massive civil litigation under federal civil rights statutes for nonenforcement and misenforcement of sexual assault laws on the basis of sex, and a foundation for challenging the facial unconstitutional­ ity of biased state criminal laws that adopt a male perpetrator’s point of view to the systematic disadvantage of female victims. It squarely supports legislation making sexual assault actionable as a form of sex discrimination.125 Usually, sex precedes reproduction. In part through its connections with forced sex, procreation has also provided a crucial occasion, pretext, and focus for the subordination of women to men in society. Many of the social disad­ vantages to which women have been subjected have been predicated upon their capacity for and role in childbearing. Although reproduction has a major impact

v. The Queen, No. 20835 (Can. S. Ct. filed June 1, 1988 and Oct. 26, 1988, and consolidated for argument) (LEAF factum in preparation on file with author), that Canada’s statutory sexual history exclusion is supported by the sex equality guarantee of The Canadian Charter of Rights and Freedoms. Such an argument would also be relevant to cases like People v. Lucas, 160 Mich. App. 692, 408 N.W.2d 431 (1987), cert, granted, 111 S. Ct. 507 (1990) (No. 90-149) (challenging constitutionality of Michigan rape shield statute which permits judge to determine relevance of sexual history evidence in camera for purposes of admissibili-

>y)124. This argument could potentially produce a different result in Florida Star v. BJ.F., 109 S. Ct. 2603 (1989). 125. See 136 CONG. Rec. S8263 (daily ed. June 19, 1990) (Violence Against Women Act) (creating federal civil cause of action for violation of civil rights through sexual assault or domestic battering when based on gender). Section 5 of the Fourteenth Amendment gives Congress authority to implement the Amendment’s guarantees through legislation. Not entirely settled is the scope of this power as regards both private (as opposed to state) action and grounds for discrimination other than sex. Such a law fits within the very restrictive reading of the Civil Rights Cases, 109 U.S. 3,25 (1883) (“If the laws themselves make any unjust discrimination,. . . Congress has full power to afford a remedy under that amendment and in accordance with it.”). In Katzenbach v. Morgan, 384 U.S. 641 (1966), the Court stated, “Correctly viewed, § 5 is a positive grant of legislative power authorizing Congress to exercise its discretion in determining whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment.” Id. at 651. Such authority would seem particularly clear where, as in the Violence Against Women Act, no conflict with state law is involved. Most of the litigation examining the congressional authority to remedy equality violations between private parties has centered on interpreting congressional intent in situations of ambiguity as to whether a state party was envisioned or purely private conduct was also meant to be (or could be) reached. See Griffin v. Breckenridge, 403 U.S. 88 (1971) (Congress had authority to reach private conspiracies with section 1985(3) under Thirteenth Amendment and right to travel); Collins v. Haidyman, 341 U.S. 651 (1951) (predecessor to section 1985(3) only reached conspiracies under color of state law). Further, whether private conspiracies on bases other than race could constitutionally be reached under section 1985(3) has been left open by the Supreme Court. United Bhd. of Carpenters & Joiners v. Scott, 463 U.S. 825, 836-39 (1983); Griffin, 403 U.S. at 102 n.9. Recent cases have interpreted section 1985(3) to apply to sex-based conspira­ cies. New York State Nat’l Oig. for Women v. Terry, 886 F.2d 1339, 1358-59 (2d Cir. 1989); see also National Org. for Women v. Operation Rescue, 914 F.2d 582,584-86 (4th Cir. 1990) (gender-based animus satisfies purposive discrimination requirement for purposes of section 1985(3) claim). Thus, the constitution­ ality of new legislation expressly forbidding sex discrimination between two private parties in an area traditionally covered by state criminal law under the authority of section 5 of the Fourteenth Amendment would present a new, but not wholly uncharted, issue. See, e.g., Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) (Congress has authority under section 5 of Fourteenth Amendment to prohibit sex discrimination in employment, including against states). Its resolution would likely turn on the extent to which the Court was persuaded that the injuries covered implicated Fourteenth Amendment equality values, and on the legislative record. There is no direct precedent in its way.

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on both sexes, men are not generally fired from their jobs, excluded from public life, beaten, patronized, confined, or made into pornography for making babies. This point is not the biological one that only women experience pregnancy and childbirth in their bodies, but the social one: women, because of their sex, are subjected to social inequality at each step in the process of procreation. Encom­ passed are women’s experiences of “fertility and infertility, conception and contraception, pregnancy and the end of pregnancy, whether through miscar­ riage, abortion, or birth and child-rearing.” 126 As with most sex inequality, it is unclear whether an attribute distinctive to women is targeted for abuse and hatred because it is women’s, or women are targeted for abuse and hatred because of a distinctive attribute. I suspect the former is closer to the truth. Either way, under male dominance, pregnancy, analyzed by Andrea Dworkin as “the primary physical emblem of female negativity,” 127 and the potential to become pregnant, are socially fundamental in women’s inequality to men. Grounding a sex equality approach to reproductive control requires situating pregnancy in the legal and social context of sex inequality and capturing the unique relationship between the pregnant woman and her fetus. The legal system has not adequately conceptualized pregnancy, hence the relationship between the fetus and the pregnant woman. This may be because the interests, perceptions, and experiences that have shaped the law have not included those of women. The social conception of pregnancy that has formed the basis for its legal treatment has not been from the point of view of the pregnant woman, but rather from the point of view of the observing outsider, gendered male. Traditionally, fetuses have not fared much better under this vantage point than have women.128 This may be changing at women’s expense as increasingly, despite the explicit Supreme Court ruling to the contrary,129 the fetus becomes endowed with attributes of personhood.130 Men may more readily identify 126. Factum of the Intervenor Women’s Legal Education and Action Fund para. 18, at 10, Sullivan and Lemay v. Regina, No. 21494 (Can. Sup. Ct. filed Feb. 22,1989) (decision pending) (on file with author) [hereinafter LEAF’S Sullivan and Lemay Factum]. 127. A. DWORKIN, OUR BLOOD 100 (1976). 128. In the original case treating a fetus as a woman’s body part, Oliver Wendell Holmes held in 1884 that a child could not recover for prenatal injuries because it was just a part of the mother at the time the injuries were sustained. Thus was the unity between the fetus and the pregnant woman affirmed as both of their harms were obscured. Dietrich v. Inhabitants of Northampton, 138 Mass. 14 (1884). 129. Roe v. Wade, 410 U.S. 113 (1973). 130. Cases creating fetal rights and attributing personhood to the fetus are encountered in the context of allowing wrongful death actions on behalf of stillborn fetuses, see, e.g., Commonwealth v. Cass, 392 Mass. 799, 467 N.E.2d 1324 (1984) (viable fetus is person for purposes of vehicular homicide statute); Vaillancourt v. Medical Center Hosp. of Vt., 139 Vt. 138, 425 A.2d 92 (1980) (statutory wrongful death liability exists for negligently caused death of viable fetus); of awarding custody of the fetus to others than the mother for purposes of forcing surgery, see, e.g., Jefferson v. Griffin Spalding County Hosp. Auth., 247 Ga. 86, 274 S.E.2d 457 (1981) (per curiam) (woman objected to performance of cesarean; court awarded temporary custody of fetus to Department of Human Resources and ordered woman to submit to surgery); and of prosecuting mothers for neglect for supplying harmful substances to their fetuses, see, e.g., In re Smith, 128 Misc. 2d 976, 492 N.Y.S. 2d 331 (N.Y. Fam. Ct. 1985) (fetus is person for purposes of New York Family Court Act and can be considered neglected child on basis of mother’s drinking and failure to obtain prenatal care during pregnancy). For a discussion of the attempts to develop fetal legal rights and

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with the fetus than with the pregnant woman if only because all have been fetuses and none will ever be a pregnant woman.131 Accordingly, the law of reproductive issues has implicitly centered on observing and controlling the pregnant woman and the fetus using evidence that is available from the outside. The point of these interventions is to control the woman through controlling the fetus.132 Technology, also largely controlled by men, has made it possible to view the fetus through ultrasound, fueling much of the present crisis in the legal status of the fetus by framing it as a free-floating independent entity rather than as connected with the pregnant woman.133 Much of the authority and persuasiveness of the ultrasound image derives from its presentation of the fetus from the standpoint of the outside

personhood and how this intrudes upon the rights of pregnant women, see Gallagher, Prenatal invasions &. Interventions: What's Wrong with Fetal Rights, 10 HARV. WOMEN’S L.J. 9 (1987); Note, The Creation of Fetal Rights: Conflicts with Women's Constitutional Rights to Liberty, Privacy, and Equal Protection, 95 Y ale L.J. 599 (1986). For a sex equality argument in the Canadian context opposing apprehension of a fetus by government for purposes of forcing a cesarean section, see Memorandum of Argument of the Women’s Legal Education and Action Fund (Intervenor), Re Baby R., (1988) 30 B.C.L.R.2d 237 (S. Ct.) (No. A872582). 131. One interpretation of Freud suggests another reason: men might identify with the fetus as the embodiment of the penis, making abortion a symbolic castration. Freud thought that the baby was a penis to the woman and that women wanted penises. S. FREUD, Some Psychical Consequences of the Anatomical Distinction Between the Sexes, in 19 STANDARD EDITION OF THE COMPLETE PSYCHOLOGICAL WORKS OF SIGMUND FREUD 256 (J. Strachey trans. 1923-25) (“the equation ‘penis-child’”). Luce Irigaray summarizes this aspect of Freud’s analysis as follows: uThe desire to obtain the penis from the father is replaced by the desire to have a child, this latter becoming, in an equivalence that Freud analyzes, the penis substitute.” L. IRIGARAY, this Sex which IS n o t ONE 41 (1985) (emphasis in original). If penis envy is regarded as a male construct, attributed to women and introjected by men, the baby, and prenatally the fetus, becomes a penis to men. Reenvisioned as an insight into male psychology, and given that a woman’s pregnancy and subsequent child are sometimes seen as proof of a man’s potency, there may be something to the Freudian observation. Then again, the way the fetus can overtake the female may be better described as metaphysical. It would not be the first time that something less real that increases male power became invested with reality while something fully real that does not increase male power became deprived of it. In the end, as Kim Scheppele pointed out to me in the abortion context, the male capacity for abstraction may be more powerful than their capacity for identification with anyone who is not them. 132. See, e.g., In re A.C., 533 A.2d 611 (D.C. 1987) (denying motion to stay trial court’s order authorizing hospital to deliver fetus by cesarean section from terminally ill woman without her consent), reh g granted and judgment vacated, 539 A.2d 203 (D.C. 1988) (judgment denying stay is vacated following operation and death of woman and fetus), on reh' g, 573 A.2d 1235 (D.C. 1990) (informed consent of woman or substituted judgment required to perform cesarean under such circumstances); M inn. Stat. A n n . § 626.556.1 (West 1990) (mandatory reporting and involuntary civil commitment of women who abuse drugs during pregnancy). But cf. Re Baby R., (1988) 30 B.C.L.R.2d 237 (S. Ct.); Re A. (in utero), (1990) 75 O.R.2d 82 (parens patriae jurisdiction inadequate to force mother to have hospital birth because of impossibility of protecting child without forcing mother to undergo restraint and medical procedures against her will, possibly leading to “abuse of pregnant mothers”); Re F. (in utero), [1988] 2 W.L.R. 1288, 2 All E.R. 193 (unborn child cannot be ward of court because of difficulties enforcing order against mother). See also In re Troy D., 215 Cal. App. 3d 889, 263 Cal. Rptr. 869 (1990) (child born under influence of drugs due to mother’s drug use while pregnant declared dependent ofjuvenile court; court would reject dependence petition in case of unborn fetus, however). 133. Factum of The Women’s Legal Education and Action Fund (LEAF) para. 3, at 1, Borowski v. Attorney General for Canada, [1989] 1 S.C.R. 342 (No. 20411) (on file with author) [hereinafter LEAF’S Borowski Factum]; Petchesky, Fetal Images: The Power of Visual Culture in the Politics of Reproduction, 13 Feminist S tud . 263 (1987).

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observer, the so-called objective standpoint,134 so that it becomes socially experienced in these terms rather than in terms of its direct connection to the woman.135 Presenting the fetus from this point of view, rather than from that which is uniquely accessible to the pregnant woman, stigmatizes her unique viewpoint as subjective and internal. This has the epistemic effect of making the fetus more real than the woman, who becomes reduced to the “grainy blur” at the edge of the image.136 The law of reproductive control has developed largely as a branch of the law of privacy, the law that keeps out observing outsiders. Sometimes it has.137 The problem is that while the private has been a refuge for some, it has been a hellhole for others, often at the same time. In gendered light, the law’s privacy is a sphere of sanctified isolation, impunity, and unaccountability. It surrounds the individual in his habitat. It belongs to the individual with power. Women have been accorded neither individuality nor power. Privacy follows those with power wherever they go, like and as consent follows women. When the person with privacy is having his privacy, the person without power is tacitly imagined to be consenting. At whatever time and place man has priva­ cy, woman wants to have happen, or lets happen, whatever he does to her. Everyone is implicitly equal in there. If the woman needs something— say, equality— to make these assumptions real, privacy law does nothing for her, and even ideologically undermines the state intervention that might provide the preconditions for its meaningful exercise.138 The private is a distinctive sphere of women’s inequality to men. Because this has not been recognized, the doctrine of privacy has become the triumph of the state’s abdication of women in the name of freedom and self-determination.139 Theorized instead as a problem of sex inequality, the law of reproductive control would begin with the place of reproduction in the status of the sexes. A narrow view of women’s “biological destiny” has confined many women to

134. For further discussion of this as male, see C. M a c K innon , supra note 23, at 162-63. 135. From this perspective, killing the fetus on-screen produces fetal snuff pornography. 136. M. Eberts, Oral Aigument in Borowski v. Attorney General for Canada before the Supreme Court of Canada (Oct. 4, 1988) (author attended argument). 137. See, e.g.> Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); Roe v. Wade, 410 U.S. 113 (1973). Some early privacy cases in tort protected women from intrusive outsiders. See, e.g., Demay v. Roberts, 46 Mich. 160, 9 N.W. 146 (1881) (doctor invaded woman’s privacy by bringing young man into her home while she was giving birth); see also Melvin v. Reid, 112 Cal. App. 285, 297 R 91 (1931) (publication of film of former prostitute held impermissibly invasive). See generally A. A llen , u n ea sy A ccess (1988). 138. Webster v. Reproductive Health Servs., 109 S. Ct. 3040 (1989); Deshaney v. Winnebago County Dep’t of Social Servs., 489 U.S. 189 (1989); Harris v. McRae, 448 U.S. 297 (1980). 139. This is discussed further in C. M ac K innon, supra note 23, at 184-94. See also a concurrence to the European Commission of Human Rights decision affirming the West German abortion decision requiring criminal restrictions on abortion in certain circumstances: “We are aware that the reality behind these traditional views (of abortion] is that the scope of protection of private life has depended on the outlook which has been formed mainly by men, although it may have been shared by women as well.” Brtiggemann and Scheuten v. Federal Republic of Germany, 3 E.H.R.R. 244, 256 (1977) (Opsahl, concur­ ring, with N0rgaard and Kellbeig).

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childbearing and childrearing and defined all women in terms of it, limiting their participation in other pursuits, especially remunerative positions with social stature. Women who bear children are constrained by a society that does not allocate resources to assist combining family needs with work outside the home. In the case of men, the two are traditionally tailored to a complementary fit, provided that a woman is available to perform the traditional role that makes that fit possible. Law has permitted women to be punished at work for their reproductive role. The option of pregnancy leave mandated by law was not even regarded as legal until recently;140 in the United States, it still is not required. When women begin to “show/’ they are often treated as walking obscenities unfit for public presentation. Inside the home, battering of women may increase during pregnancy.141 Pornography makes pregnancy into a sexual fetish, con­ ditioning male sexual arousal to it, meaning targeting sexualized hatred against it.142 Whether or not women have children, they are disadvantaged by social norms that limit their options because of women’s enforced role in childbearing and childrearing. For a woman who does become pregnant, these consequences occur even when a pregnancy is wanted. Women often do not control the conditions under which they become preg­ nant; systematically denied meaningful control over the reproductive uses of their bodies through sex, it is exceptional when they do. Women are socially disadvantaged in controlling sexual access to their bodies through socialization to customs that define a woman’s body as for sexual use by men. Sexual access is regularly forced or pressured or routinized beyond denial. Laws against sexual assault provide little to no real protection. Contraception is inadequate or unsafe or inaccessible or sadistic or stigmatized. Sex education is often misleading or unavailable or pushes heterosexual motherhood as an exclusive life possibility and as the point of sex. Poverty and enforced economic depen­ dence undermine women’s physical integrity and sexual self-determination. Social supports or blandishments for women’s self-respect are simply not enough to withstand all of this. After childbirth, women tend to be the ones who are primarily responsible for the intimate care of offspring— their own and those of others. Social custom, pressure, exclusion from well-paying jobs, the structure of the marketplace, and lack of adequate daycare have exploited women’s commitment to and caring for children and relegated women to this pursuit which is not even considered

140. California Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272 (1987). 141. Helton, McFarlane & Anderson, Battered and Pregnant: A Prevalence Study, 77 AM. J. PUB. HEALTH 1337 (1987); R. GELLES, FAMILY VIOLENCE 126-34 (2d ed. 1987); R. GELLES, THE VIOLENT HOME 145-47 (1972); Hilberman & Munson, Sixty Battered Women, 2 VICTIMOLOGY 460,462 (1977-78); Gayford, Wife Battering: A Preliminary Survey of 100 Cases, 1 Brit. Med. J. 194 (1975). One researcher found that, of the wives in his sample who were assaulted, 23% were attacked while pregnant. Other researchers have recorded a range of 9% to 50% of battered women assaulted while pregnant. L. Okun , W oman A buse 5152 (1986) (summarizing studies). 142. A. Dworkin , Pornography 218-23 (1981).

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an occupation but an expression of the X chromosome. Women do not control the circumstances under which they rear children, hence the impact of those conditions on their own life chances.143 Men, as a group, are not comparably disempowered by their reproductive capacities. Nobody forces them to impreg­ nate women. They are not generally required by society to spend their lives caring for children to the comparative preclusion of other life pursuits. It is women who are caught, to varying degrees, between the reproductive consequences of sexual use and aggression on the one side and the economic and other consequences of the sex role allocations of labor in the market and family on the other. As a result of these conditions, women are prevented from having children they do want and forced to have children they do not want and cannot want because they are not in a position responsibly to care for them because they are women. This is what an inequality looks like. Reproduction is socially gendered. Women are raped and coerced into sex. When conception results from rape or incest, it is a girl or a woman who was violated, shamed, and defiled in a way distinctively regarded as female. When a teenager gets pregnant because of ignorance or the negative social connota­ tions of contraception, it is a young woman who is pregnant. When miscarriage results from physical assault, it is a woman who was beaten. When there is not enough money for another child or for an abortion, it is a woman who is forced to have a child she cannot responsibly care for. When a single parent is impov­ erished as a result of childbearing, usually that parent is female.144 When someone must care for the children, it is almost always a woman who does it, without her work being valued in terms of money or social status. Men, regardless of race, have not generally been sterilized without their knowledge and against their will, as have women of color. It has been held illegal to sterilize a male prisoner but legal to sterilize a mentally disabled woman.145 Those who have been defined and valued and devalued as breeders and body servants of the next generation are not usually men, except under circumstances recognized as slavery. The essential social function of nurturing new life has been degraded by being filled by women, as the women who fill it have been degraded by filling it. And it is women who, for reasons not always purely biological, may pay for giving birth with their lives. In this context, the relationship between the woman, gendered female, and her fetus needs to be reconsidered. Although it hardly presents new facts, this 143. In an extreme instance of conditioning women’s employment opportunities on the possibility of childbearing, the Johnson Controls Corporation’s “fetal protection policy” excludes all “fertile” women from work where their exposure to lead in battery manufacture might affect a fetus through the placenta in the first weeks after conception. UAW v. Johnson Controls, 886 F.2d 871 (7th Cir. 1989), cert, granted, 110 S. Ct. 1522 (1990) (No. 89-1215). 144. Having children has been documented as a leading cause of poverty among women in Canada. C anadian A dvisory C ouncil on the Status of W omen , W omen and L abour M arket Poverty 7-35 (1990). 145. Compare Buck v. Bell, 274 U.S. 200 (1927) (mentally incompetent woman allowed to be sterilized) with Skinner v. Oklahoma, 316 U.S. 535 (1942) (male prisoner not allowed to be sterilized).

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relation has never been accorded a legal concept of its own. Because legal method traditionally proceeds by analogy and distinction, attempts at analogy between the relationship between the fetus and the pregnant woman and relations already mapped by law are ubiquitous. Had women participated equally in designing laws, we might now be trying to compare other relationships— employer and employee, partners in a business, oil in the ground, termites in a building, tumors in a body, ailing famous violinists and abducted hostages forced to sustain them— to the matemal/fetal relationship rather than the reverse. Sometimes there are no adequate analogies. As it is, the fetus has no concept of its own, but must be like something men have or are: a body part to the Left, a person to the Right. Nowhere in law is the fetus a fetus. Considering the fetus a body part has been the closest the law has come to recognizing fetal reality and protecting women at the same time. Since men have body parts over which they have sovereignty, deeming the fetus to be “like that” has seemed the way to give women sovereignty over what is done to their bodies, in which the fetus inevitably resides. Because persons are sovereign, deeming the fetus to be a person, “like me,” has seemed the way to take away women’s control over it, hence over themselves. The body part analogy derives its credibility from the intricate and intimate connection between the fetus and woman. It derives nourishment from her and is accessible only through her. From before viability until fully completed live birth, the fetus is within the person of the woman and at one with her bodily systems. What happens to it happens to her and what happens to her happens to it— if not always in the same way. By telescoping the fetus into the woman, the body part analogy at once recognizes the unity of interest between fetus and pregnant woman that the personhood model is predicated on severing, and consolidates the woman as the decisionmaker for the unit. Yet the fetus is not a body part. The fetus is ordinarily created through intercourse, a social relation through which impregnation occurs. Although some body parts are donated (as are some fertilized ova), no body part is created from a social relation— one between the sexes at that. Physically, no body part takes as much and contributes as little. The fetus does not exist to serve the woman as her body parts do. The relation is more the other way around; on the biological level, the fetus is more like a parasite than a part. The woman’s physical relation to her fetus is expected to end and does; when it does, her body still has all of its parts. She is whole with it or without it; a miscarriage leaves her body as such intact, although the loss may diminish her. On the level of feeling, she has lost a part of her, but this is also true of loss of children who are fully bom alive. Fetal dependence upon the pregnant woman does not make the fetus a part of her any more than fully dependent adults are parts of those on whom they are dependent. The fetus is a unique kind of whole that, after a certain point, can live or die without the mother. Whatever credibility the body part analogy has evaporates at the moment of

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viability, placing tremendous pressure on the viability line and its determination as a consequence.146 No other body part gets up and walks away on its own eventually. The fetus is not even like gendered body parts. A fetus is lived by the pregnant woman through her pregnancy. A pregnancy is not, in fact or in social meaning, a body part, even a female body part. The cultural meanings of pregnancy are distinct. Pregnancy can be an emblem of female inferiority or adulation, of denigration or elevation; it can bring closeness or estrangement, can give a new sense of the meaning of life and new depth or desperation to the experience of family. It attracts violence against women, sentimentality, attempts at control, gives rise to financial costs and the need for difficult decisions.147 Women have lost jobs and been stigmatized and excluded from public life because they are pregnant— jobs and access they had in spite of having breasts and uteruses. It seems that it is one thing to have them, another to use them.148 No body part has the specific consequences pregnancy has on women’s social destiny. Now place the legal status of the fetus against the backdrop of women’s tenuous to nonexistent equality. Women have not been considered “persons” by law very long; the law of persons arguably does not recognize the requisites of female personhood yet. Separate fetal status of any sort, in a male-dominated legal system in which women have been controlled through the control of their procreative capacity, risks further entrenchment of women’s inequality. If the fetus were deemed a person, it may well have more rights than women do, especially since fetal rights would be asserted most often by men in traditional­ ly male institutions of authority: progenitors, husbands, doctors, legislators, and courts. Fetal rights as such are thus in direct tension with sex equality rights. Indeed, the only point of recognizing fetal personhood, or a separate fetal entity, is to assert the interests of the fetus against the pregnant woman.149 There would be two persons in one skin— hers— the rationale being that its life depends upon her, but the reverse is not usually true. The fetus could be given the right to the use of the pregnant woman’s body from conception to birth.150

146. See Thornbuigh v. American College of Obstetricians & Gynecologists, 476 U.S. 747 (1986) (striking down provisions requiring doctors to report basis for nonviability conclusion as means of assuring any potentially viable fetus be born alive and mandating second doctor’s presence at any abortion where fetus might be born alive); Webster v. Reproductive Health Servs., 109 S. Ct. 3040, 3061 (O’Connor, J., concurring), 3076 (Blackmun, J., concurring in part and dissenting in part) (1989); Colautti v. Franklin, 439 U.S. 379 (1979) (statute criminalizing doctors for neglect of viability, or possible viability, of fetus void for vagueness). 147. See LEAF’S Sullivan and Lemay Factum, supra note 126, paras. 19-24, at 11-14. 148. A case like UAW v. Johnson Controls, 886 F.2d 871 (7th Cir. 1989), cert, granted, 110 S. Ct. 1522 (1990) (No. 89-1215) collapses this distinction. See supra note 143. For an incisive analysis of the sex equality issues involved in “fetal vulnerability” policies, see Becker, supra note 76. 149. See supra note 130. 150. This is the insight of Judith Jarvis Thompson’s celebrated hypothetical. Thompson, A Defense of Abortion, 1 PHIL. & PUB. AFF. 47 (1971); see also Regan, Rewriting Roe v. Wade, 77 Mich. L. REV. 1569 (1979).

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In arguments for fetal personhood, the fetus is “born in the imagination.” 151 But it is not born in the world. Gestation and birth involve the mother and often entail considerable medical uncertainty.152 Even well toward the end of preg­ nancy, the view that the fetus is a person vaults over this process in a way that is unrealistic and dangerous for the birthing woman, who can be made invisible and chattel in a situation in which she is deeply implicated. Personhood is a legal and social status, not a biological fact. As gestation progresses, the fetus grows from something that is more like a lump of cells to something that is more like a baby. As the body part analogy draws on the earlier reality to define the later one, the personhood analogy draws on the later reality to define the earlier one. In my opinion and in the experience of many pregnant women, the fetus is a human form of life. It is alive. But the existence of sex inequality in society requires that completed live birth mark the personhood line. If sex equality existed socially— if women were recognized as persons, sexual aggression were truly deviant, and childrearing were shared and consistent with a full life rather than at odds with it— the fetus still might not be considered a person but the question of its political status would be a very different one.153 So long as it gestates in utero, the fetus is defined by its relation to the pregnant woman. This is why its status turns on her status. More than a body part but less than a person, where it is, is largely what it is. From the standpoint of the pregnant woman, it is both me and not me.154 It “is” the pregnant woman in the sense that it is in her and of her and is hers more than anyone’s. It “is not” her in the sense that she is not all that is there. In a legal system that views the individual as a unitary self, and that self as a bundle of rights, it is no wonder that the pregnant woman has eluded legal grasp, and her fetus with her. The legal status of the fetus cannot be considered separately from the legal and social status of the woman in whose body it is. The pregnant woman is more than a location for gestation. She is a woman, in the socially gendered and unequal sense of the word. In an analysis of women’s status as socially disadvantaged, the woman is not a mere vehicle for an event which happens to occur within her physical boundaries for biological reasons.155 Women’s 151. Mary Eberts created this characterization. 152. J. Katz, Maternal-Fetal Conflicts 45-48 (Apr. 25, 1990) (unpublished manuscript on file with author). 153. On this issue, consideration of sex inequality would add a dimension to the perceptive analysis of comparative abortion laws provided by Mary Ann Glendon in her A bortion and Divorce in W estern L aw (1987).

154. A. RICH, Of Woman born 64 (1976) (“The child that I carry for nine months can be defined neither as me nor as not-me”) (emphasis in original). Lynn Smith suggested stating Rich’s definition in the affirmative. 155. The analysis of Sylvia Law gets no further than this in its consideration of gender in the abortion context, although it does consider the social consequences for women of being deprived of the abortion right in the context of a legal sex discrimination argument. Law, Rethinking Sex and the Constitution, 132 U. Pa . L. r e v . 955, 1016-28 (1984).

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relation to the fetus is not that of a powerful, fully capacitated being in relation to a powerless, incapacitated, and incomplete one. Indeed, it shows how powerless women are that it takes a fetus to make a woman look powerful by comparison. The relation of the woman to the fetus must be seen in the social context of sex inequality in which women have been kept relatively powerless compared with men. The fetus may have been conceived in powerlessness and, as a child, may be reared in powerlessness— the woman’s.156 The effects of women’s inequality in procreation can range from situations in which the woman does not choose to conceive but is forced to deliver to those in which the woman chooses to conceive and deeply desires to deliver but the baby dies. The range of procreative events along which inequality is experienced contextualizes the fact that when women are forced into maternity, they are reproductively exploited. Short of achieving sexual and social equality— short of changing the context— abortion has offered the only way out. However difficult an abortion decision may be for an individual woman, it provides a moment of power in a life otherwise led under unequal conditions which preclude choice in ways she cannot control. In this context, abortion provides a window of relief in an unequal situation from which there is no exit. Until this context changes, only the pregnant woman can choose life for the un­ born.157 Because the discussion of the political status of the fetus has been framed by the abortion controversy, it has proceeded from the premise that there is a 156. This is emphatically not to permit individual determinations of the balance of power in particular relationships as a predicate to granting a right to abort. The analysis here is of a political reality —women’s subordinate status in society—that permeates, conditions, and transcends individuals and relationships. Laurence Tribe correctly points out that predicating the abortion right on individual determina­ tions would be an invasion of privacy under existing law. L. T ribe , A bortion : T he C lash of A bsolutes 92-99 (1990); see also Massachusetts v. Secretary of Health & Human Servs., 899 F.2d 53 (1st Cir. 1990) (state has no compelling interest in intruding into consultation between woman and her physician). 157. The consequences of this argument for abortion for sex selection purposes are not entirely clear to me but suggest that such practices should not be permitted. Selective abortion of female fetuses by state policy or encouraged or pressured by private entities would surely constitute sex discrimination—both against the woman’s choice to bear a female child and, through her, against the gendered fetus. If fetal gender can be known for purposes of elimination, it should be able to be recognized for purposes of preservation. Most selectively aborted fetuses are female, in societies that denigrate and devalue women, see, e.g., India Makes Sure of Baby Boys, N ew SCIENTIST, Dec. 25, 1986-Jan. 1, 1987, at 8, and may also practice female infanticide and dowry murder, for example. The question is, should this recognition extend to official blocking of decisions by women to abort female fetuses? One state in India has restricted the practice of abortions for sex selection by law. Lingam, New Reproductive Technologies in India: A Print Media Analysis, 3 ISSUES IN Reproductive & GENETIC Engineering 13, 18-19 (1990) (citing position taken by Indian Forum Against Sex Determination and Sex Pre-Selection, a nationwide umbrella organization in India); Weisman, No More Guarantees of a Son's Birth, N.Y. Times, July 20, 1988, at Al, col. 2. In addition to other costs, aborting female fetuses may further erode women’s power as women make up less and less of the population. On the one hand, it is difficult to say why the reason for the abortion decision should matter until those who prescribe what matters live with the consequences the way the mother does, or until women can make such decisions in a context of equality. At the same time, in a context of mass abortions of female fetuses, the pressures on women to destroy potential female offspring are tremendous and oppressive unless restrictions exist. While under conditions of sex inequality monitoring women’s reasons for deciding to abort is worrying, the decision is not a free one, even absent governmental intervention, where a male life is valued and a female life is not.

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conflict between what is good for the woman and what is good for the fetus. Sometimes there is. Usually there is not, in large part because when there is, women tend to resolve it in favor of the fetus. Women may identify with the fetus because, like them, it is invisible, powerless, derivative, and silent.158 Grasping this unity in oppression, it has most often been women who have put the welfare of the fetus first, before their own. While most women who abort did not choose to conceive, many women who keep their pregnancies did not choose to conceive either. The priority women make of their offspring may be more true in the abortion context than it seems. Many women have abortions as a desperate act of love for their unborn children. Many women conceive in battering relationships; subjecting a child to a violent father is more than they can bear.159 When women in a quarter to a third of all American households face domestic violence,160 this motivation cannot be dismissed as marginal. Some women conceive in part to cement a relationship which dissolves or becomes violent when the man discovers the conception.161 Even where direct abuse is not present, sex inequality is. Many abortions occur because the woman needs to try to give herself a life. But many also occur because the woman faces the fact that she cannot give this child a life. Women’s impotence to make this not so may make the decision tragic, but it is nonetheless one of absolute realism and deep responsibility as a mother. Reproduction in the lives of women is a far larger and more diverse experi­ ence than the focus on abortion has permitted. The right to reproductive control I have in mind would include the abortion right but would not center on it. Women would have more rights when they carry a fetus: sex equality rights. Women who are assaulted and miscarry, women who are forced to have abortions and women who are denied abortions, women who are sterilized, and women who are negligently attended at birth all suffer deprivation of reproduc­ tive control. Under such circumstances, existing laws that regulate these areas should be interpreted consistent with constitutional sex equality mandates. If affirmative legislative pursuit of this principle were desired, this concept of

158. Andrea Dworkin made this observation in a conversation with me. 159. See NCADV’s Webster Brief, supra note 34, at 2. The same reality was highlighted by LEAF in Memorandum of Facts and Law Submitted by the Intervenor, The Women’s Legal Education and Action Fund para. 58, at 16, Tremblay v. Daigle, [1989] 2 S.C.R. 530 (No. 21553), in which it was noted that Ms. Daigle stated Mr. Tremblay’s violence against her contributed to her decision to abort. 160. R. Dobash & R. Dobash , V iolence A gainst W ives 14-20 (1979); L. W alker , T he B attered W oman 19-20 (1979); Stark, Flitcraft & Frazier, Medicine and Patriarchal Violence: The Social Construc­ tion of a Private Event, 9 In t ’ l J. Health Services 461-93 (1979). See generally B ureau OF Justice Statistics, U.S. D ep ’t of Justice , I n t i m a t e V i c t i m s : A Study of V iolence A mong Friends and R elatives (1980). 161. Carol Gilligan’s discussion of women’s abortion decisions, which include examples of such pressures, concludes that women reason morally in a way that is “different” from men. The discussion here suggests that sex inequality forces women to reason more relationally (inter alia) than men are required to do; specifically, women are forced to take men’s views into account in a way that reflects the fact that men have social power. C. GILUGAN, supra note 55, at 106-27. For an evocative discussion of factors involved for women who confront abortions, see M. D enes, In N ecessity and S orrow 91-127 (1976).

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reproductive control would encourage programs to support the fetus through supporting the woman, including guaranteed prenatal care, pregnancy leaves, and nutritional, alcohol, and drug counseling. If pursued in a context in which sexual coercion was effectively addressed, such programs would promote women’s equality, not constitute inducements and pressures to succumb to women’s subordinate roles. In this light, purported concern for the well-being of pregnant women and subsequently born children expressed by policing women’s activities during pregnancy and forcing women to carry pregnancies to term is not only vicious and counterproductive, but unconstitutional.162 Because the social organization of reproduction is a major bulwark of women’s social inequality, any constitutional interpretation of a sex equality principle must prohibit laws, state policies, or official practices and acts that deprive women of reproductive control or punish women for their reproductive role or capacity. Existing examples include nonconsensual sterilization, forced obstetrical intervention, supervision of women’s activities during pregnancy under the criminal law, and denials of abortion through criminalization or lack of public funding where needed. Women’s right to reproductive control is a sex equality right because it is inconsistent with an equality mandate for the state, by law, to collaborate with or mandate social inequality on the basis of sex, as such legal incursions do. This is not so much an argument for an extension of the meaning of constitutional sex equality as a recognition that if it does not mean this, it does not mean anything at all. Under this sex equality analysis, criminal abortion statutes of the sort invalidated in Roe v. Wade violate equal protection of the laws.163 They make women criminals for a medical procedure only women need, or make others criminals for performing a procedure on women that only women need, when much of the need for this procedure as well as barriers to access to it have been created by social conditions of sex inequality. Forced motherhood is sex inequality. Because pregnancy can be experienced only by women, and because of the unequal social predicates and consequences pregnancy has for women,

162. This argument is made under the sex equality provision of the Canadian Charter of Rights and Freedoms in LEAF’S Sullivan and Lemay Factum, supra note 126, paras. 11-27, at 8-15. 163. This is not to say that Roe should necessarily have been aigued on sex equality grounds. Sex equality law was in its infancy at the time. But then privacy law barely existed either. It is to say that the real constitutional issue raised by criminal abortion statutes like that in Roe is sex equality and that it should be recognized as such. G. C alabresi , Ideals , B eliefs, A ttitudes , and the L aw 87-114 (1985); L. T ribe, supra note 156, at 105; Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C.L. REV. 375 (1985); Schauer, Easy Cases, 58 S. C a l . L. R e v . 399, 431 n.83 (1985); Strauss, Discriminatory intent and the Taming of Brown, 56 U. CHI. L. REV. 935, 990-98 (1989); Olsen, The Supreme Court, 1988 Term—Foreword: Unraveling Compromise, 103 HARV. L. REV. 105 (1989); Sunstein, Why the Unconstitutional Conditions Doctrine is an Anachronism (With Particular Reference to Religion, Speech, and Abortion), 70 B.U.L. REV. 593, 616-20 (1990). The preamble to the East German Law on the Interruption of Pregnancy states that “[e]qual rights (Gleichberechtigung) of the woman in education and the professions, marriage, and the family requires that the woman herself can decide about pregnancy and whether to carry it to term.” Gesetz ilber die Unterbrechung der Schwangerschaft, GB1.I der DDR 89 (1972) (translated by author with Susanne Baer).

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any forced pregnancy will always deprive and hurt one sex only as a member of her gender. Just as no man will ever become pregnant,164 no man will ever need an abortion, hence be in a position to be denied one by law. On this level, only women can be disadvantaged, for a reason specific to sex, through state-mandated restrictions on abortion. The denial of funding for Medicaid abortions obviously violates this right.165 The Medicaid issue connects the maternity historically forced on African American women integral to their exploitation under slavery with the motherhood effectively forced on poor women, many of whom are Black, by deprivation of government funding for abortions.166 For those who have not noticed, the abortion right has already been lost: this was when. Although the sex equality argument for equal funding is doctrinally simpler than that for the abortion right itself, statutes that recriminalize abortion167 would be invalidated under this argument. To recast the argument in a more doctrinal guise, statutes that draw gender lines are unconstitutional under the equal protection clause if they do not bear a valid or substantial relation to an important or legitimate and compelling state purpose.168 Initially, a state’s purposes in passing criminal abortion statutes could be challenged as invalid. If states wanted to protect the fetus, rather than discriminate against women, they would help the woman, not make her a criminal. The most effective route to protecting the fetus— given illegal abortion, perhaps the only effective route— is supporting the woman. Further, the seeming appropriateness of forcing women to bear children when no such bodily impositions are made upon men by any state law— even after fetuses men have participated in creating become children (persons) and even when no alternatives are avail­ able— is transparently based on the view that the purpose of women is breeding. If using women as a sex as a means to an end is discriminatory, if naturalizing

164. This assumes that women will always gestate children in utero. If ways are found for men to gestate fetuses, obviously this would change. Extrauterine gestation would raise additional issues. 165. Medicaid funding for abortion has been upheld under a sex equality rubric in Doe v. Maher, 40 Conn. Supp. 394, 515 A.2d 134 (Conn. Super. Ct. 1986) (restriction of abortion funding to life-threatening situations violates, inter alia, state equal rights amendment). But cf. Fischer v. Department of Pub. Welfare, 85 Pa. Commw. 215, 482 A.2d 1137 (1984) (restriction of abortion funding to life-threatening situations does not violate state equal rights amendment). The more usual theory is not strictly sex equality, but equal protection for indigent women, see, e.g., Committee to Defend Reproductive Rights v. Myers, 29 Cal. 3d 252, 625 P.2d 779 (1981), or privacy. 166. See Harris v. McRae, 448 U.S. 297 (1980) (upholding Hyde Amendment restrictions on govern­ ment funding of Medicaid abortions). 167. Guam recently passed an initiative to recriminalize all abortion “after implantation of a fertilized ovum” unless two doctors declare the mother’s life or health to be at risk should she continue the pregnancy. The law criminalizes soliciting abortions, having them, and performing them. See Guam Soc’y of Obstetri­ cians & Gynecologists v. Ada, No. 90-00013,1990 LEXIS 11910, at 3-4 (D. Guam Aug. 23,1990) (quoting statute). 168. Mississippi Univ. for Women v. Hogan, 458 U.S. 718,724 n.9 (1982); Personnel Adm’r of Mass, v. Feeney, 442 U.S. 256,273 (1979); Craig v. Boren, 429 U.S. 190,197 (1976). The related argument could also be made that such statutes do not bear a rational relation to a valid state purpose. See Reed v. Reed, 404 U.S. 71, 76 (1971).

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as destiny a role that is rooted in the history of sex inequality is discriminatory, the state purpose in restricting abortions is discriminatory and not valid. But even assuming the state purpose were found valid— the purpose was not to harm women but to help fetuses, and this need not be pursued in the best way but only nonpretextually— the issue would remain whether such a statute were based on sex. Criminal abortion laws hurt women through a biological correlate of femaleness and a socially defining characteristic of gender long used to disadvantage women and keep them in a subject status. For this reason, criminal abortion statutes should be treated as closer to facially discriminatory than to neutral distinctions disparate in effect. By analogy, sexual harassment is legally treated more like facial than disparate impact discrimination, even though it is not done by express law or policy. Certainly, more men are sexual­ ly harassed than are denied abortions.169 Criminal abortion laws hurt no men the way they hurt only women. They single out women exclusively. Criminalizing providers, which does affect men, is merely a pretextually gender-neutral means of accomplishing the same goal: depriving women and only women, by law, of relief from a situation of sex inequality which begins in unequal sex and ends in unequal childrearing. If such statutes are treated as facial, not neutral, it is unnecessary to prove that they discriminate intentionally. If intent had to be proven, states would doubtless argue that criminal abortion statutes aim to help fetuses, not hurt women. But intent can be inferred from impact.170 No men are denied abortions, even if some doctors, regardless of sex, are made criminals for providing them. Such a statutory impact would be far more one-sided than, for example, the impact of veterans* preference statutes, which have been found to lack the requisite discriminatory intent because, although most of those benefited by them are men, many men— nonveterans— are also harmed.171 No men are damaged in the way women are harmed by an abortion prohibition. Even those who can be prose­ cuted are harmed for performing what is, in essence, a female procedure, a procedure only women need, with the clear aim of keeping women and only

169. Disparate treatment cases under Title VII and disparate impact cases under the equal protection clause require a showing of intent or purpose to discriminate before the behavior will be regarded as discriminatory. Facial cases under the equal protection clause do not. Sexual harassment is treated as if facial in the sense that no showing of purpose or intent to discriminate has been generally required even though the cases are not argued as Title VII disparate impact cases and otherwise better fit the differential treatment model. See. e.g.yKatz v. Dole, 709 F.2d 251,256 (4th Cir. 1983) (intent not specifically required as element of Title VII sexual harassment case). But see Huebschen v. Department of Health and Social Servs., 716 F.2d 1167,1171 (7th Cir. 1983) (intent required in equal protection sexual harassment case); Bohen v. City of E. Chicago, 799 F.2d 1180 (7th Cir. 1986) (same). 170. Washington v. Davis, 426 U.S. 229, 242 (1976). I oppose the intent requirement, as it focuses on mental state not consequences, on perpetrators not victims, and on individuals not members of groups. It requires perpetrators to know what they are doing and why. Most discrimination does not happen this way. 171. Feeney, 442 U.S. at 274-75; see also New York State Nat’l Org. for Women v. Terry, 886 F.2d 1339, 1359 (2d Cir. 1989) (“[BJecause defendants’ conspiracy [under section 1985(3)] is focused entirely on women seeking abortions, their activities reveal an attitude or animus based on gender.”).

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women from access to it. Male providers can avoid liability by refusing to perform the procedure and be, as men, no worse off, while pregnant women who seek to abide by the law must continue the pregnancy, damaging them in a way that only women are or could be damaged. Remaining as a barrier to this argument is the view that pregnancy, hence abortion, is implicitly not sex-based because no men get pregnant and are treated better. That is, there are no “similarly situated” men differently treated, so depriving women in this way cannot be sex discrimination.172 Considering reproductive control as a sex equality right directly challenges the “similarly situated” requirement. In the pregnancy area, the notion that one must first be the same as a comparator before being entitled to equal treatment has been deeply undermined, although it remains constitutional precedent. After the Supreme Court held under Title VII that discrimination based on pregnancy was not discrimination based on sex,173 Congress reversed this result by amending Title VII, requiring that discrimination based on pregnancy be recognized as discrimination based on sex.174 As of this amendment, a cardinal difference between the sexes became an invalid reason for disadvantaging women.175 The implications of this shift are considerable. Most disadvantages can be construed as, and therefore become, differences.176 The question is whether social disadvantages— like jail and deprivation of government funding— will be treated under the old model for biological differences, as not subject to equality law, or whether the new model, under which not even biological differences justify unequal social outcomes, will be applied. Moving away from its earlier formalism in the pregnancy area, the Court has begun to interpret statutory sex equality mandates in light of substantive equality goals. In an early ruling construing the pregnancy discrimination amendment to Title VII, the Supreme Court reached out explicitly in dicta, to a degree that was legally unnecessary, to repudiate its former constitutional reasoning on pregnancy, seeming strongly to signal its readiness to abandon its view under the Fourteenth Amendment that pregnancy is not gendered.177 In a further Title VII ruling on pregnancy, the Court gave sex equality reason­ ing a strong pro-equality spin, holding that a state-mandated pregnancy leave was not sex discriminatory because it promoted women’s equal access to the 172. Geduldig v. Aiello, 417 U.S. 484, 496 n.20 (1974). 173. General Elec. Co. v. Gilbert, 429 U.S. 125 (1976). 174. Pregnancy Discrimination Act of 1978, 42 U.S.C. § 2000e(k). 175. There is an express exception for abortion in the Pregnancy Discrimination Act: ‘This subsection shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from abortion . . . Id. 176. See supra notes 69-78 and accompanying text. 177. Newport News Shipbuilding & Drydock Co. v. EEOC, 462 U.S. 669 (1983). Justice Rehnquist, author of Gilbert for the Court, dissented in Newport News, arguing that the majority had there in effect overruled Gilbert. Id. at 686 (Rehnquist, J., dissenting); see also Nashville Gas Co. v. Satty, 434 U.S. 136, 141-42 (1977) (distinguishing Gilbert; policy of denying accumulated seniority to pregnant women violates Title VE, imposing on women a burden men do not suffer).

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workforce.178 Here the Court chose not to enforce gender neutrality where that would have meant invalidating or extending to men (via parental leave) a sex-specific reproductive benefit for women at work, noting that the conse­ quence was neutral in the sense that, under the statute, “women, as well as men, [can] have families without losing their jobs.” 179 The Court has not since had occasion directly to consider the issue of whether pregnancy is gendered in the legal sense.180 Specifically, it has not confronted this question in the constitutional context since these newer developments in statutory sex equality law came into sharp conflict with its approach on the constitutional side. Adjudication of recriminalized abortion by state law could present such an opportunity. Doctrinally, it is possible for criminal abortion statutes to be found sex discriminatory but nonetheless justified, for example, by the goal of protecting fetal life. Putting aside the question of whether sex discrimination should ever be justified, this inquiry would be the right context in which to balance fetal death from legal abortions with maternal death from illegal ones.181 We would learn a lot about how much a woman’s life is worth, hence about the reality of equality for women, from the answer. Because forced maternity is a sex equality deprivation, legal abortion is a sex equality right. “Women’s access to legal abortion is an attempt to ensure that women and men have more equal control of their reproductive capacities, more equal opportunity to plan their lives and more equal ability to participate fully in society than if legal abortion did not exist.” 182 Sex equality would be advanced if women were permitted to control sexual access to their bodies long before an unwanted pregnancy. Sex equality would be advanced if society were organized so that both sexes participated equally in daily child care. Sex equality would be advanced by economic parity between women and men. Equality for women would gain from racial equality. All these changes would overwhelmingly reduce the numbers of abortions sought. The abortion contro­ versy would not be entirely eliminated, but its ground would shift dramatically. Those who support the abortion right in the name of “a woman’s right to control her own body” might start earlier, before women are pregnant, with the 178. California Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272 (1987). 179. Id. at 289. 180. Harris v. McRae, 448 U.S. 297 (1980), could have provided this occasion, but the sex equality argument was not made. 181. Cates and Rochat estimate that the death-to-case rate for illegal abortions is approximately eight times greater than for legal abortions. Cates & Rochat, Illegal Abortions in the United States: 1972-1974, 8 Fam. PLAN. P e r s p . 86, 92 (1976); see also Binkin, Gold & Cates, Illegal Abortion Deaths in the United States: Why Are They Still Occurring?y 14 Fam. PLAN. PERSP. 163, 165-66 (1982) (pointing to lack of funding, lack of providers or access to them, desire for privacy, fear, and ignorance as factors in illegal abortion deaths since 1974). The death rate from illegal abortions for women of color in New York City prior to the legalization of abortion was found to be substantially higher than that for white women. Gold, Erhaidt, Jacobziner & Nelson, Therapeutic Abortions in New York City: A 20-Year Review, 55 AM. J. PUB. HEALTH 964, 965 (1965). 182. LEAF’S Borowski Factum, supra note 133, para. 54, at 17.

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issue of sexual access. If women are not socially accorded control over sexual access to their bodies, they cannot control much else about them. Those who think that fetuses should not have to pay with their lives for their mothers’ inequality might direct themselves to changing the conditions of sex inequality that make abortions necessary. They might find the problem largely withered away if they, too, opposed sex on demand.

m When a system of power is thoroughly in command, it has scarcely need to speak itself aloud; when its workings are exposed and ques­ tioned, it becomes not only subject to discussion, but even to change. Kate Millett183 The first part of these reflections takes on the complacency of the view that women have rights when we do not; the second part stands against the luxuri­ ous cynicism that despairingly assumes women have no rights when we do, or could. Both expose some of the workings of a gendered system of power whose command is maintained in part through being unspoken. In the process of the analysis some broader implications for change in equality law and theory are suggested. Inequality, as analyzed here, is not a bad attitude that floats in the sky but an embodied particular that walks on the ground. It is first concrete, historical, present, and material, only derivatively generic, and never abstract. Social inequality does not first exist in the abstract, in search of a basis or polarization or natural joint to carve or asymmetry to which to attach. It exists in the social reality of its particulars, such as the social dominance of men through which women are subjected. Sex equality as a norm comes into being through the resistance of women as a people to their subjection. The equality principle, in this approach, is properly comprised of the practical necessities for ending inequality in each of its real forms. Such an analysis does not generate abstractly fungible categories. Inequality is not conceptually reversible, only concretely changeable. To be “similarly situated,” a test which relies on and produces abstract counter-hierarchical comparisons as the essence of equality reasoning, thus cannot remain the threshold for access to equality guarantees. If inequality is concrete, no man is ever in the same position a woman is, because he is not in it as a woman. That does not mean a man cannot be recognized as discriminated against on the basis of sex. It does mean that it is no measure of virtue for an equality theory to accord the same solicitude to dominant groups as to subordinate ones,

183. K. MILLETT, SEXUAL POLITICS 87 (1971).

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all the while ignoring who is who.184 If the point of equality law is to end group-based dominance and subordination, rather than to recognize sameness or accommodate difference, a greater priority is placed on rectifying the legal inequality of groups that are historically unequal in society, and less solicitude is accorded pure legal artifacts or reversals of social fortune. Although such a substantive interpretation is technically possible, indeed compelled, under existing law, the passage of an Equal Rights Amendment could help provide a political and textual basis for this rectification of constitutional emphasis. Law furthering this equality norm would develop a new relation to society. In societies governed by the rule of law, law is typically a status quo instru­ ment; it does not usually guarantee rights that society is predicated on denying. In this context equality law is unusual: social equality does not exist, yet a legal guarantee of equality does. If law requires equality, in a society that is structur­ ally and pervasively unequal, and the social status quo were no longer to be maintained through the abstract equality model, then equality law could not even be applied without producing social change. For example, it is generally thought that nondiscrimination and affirmative action are two different things. Under the equality approach argued here, there is no difference between them. Equality law becomes a distinct species of law, in need of its own norms for its distinct relation to an unequal society. One part of developing the jurisprudence of such law is creating new doctrine. Here, the laws of sexual assault and abortion are argued to constitute facially sex-discriminatory state action. While existing state action doctrine readily accommodates these obvious forms, and existing discrimination law provides a basis for this recognition, the larger implications of this exposed interface between the state and women’s everyday lives suggests the need for more commodious notions of both discrimination and state action. On a contin­ uum of examples, denial of access to abortion, the marital rape exclusion, failure to enforce laws against domestic violence, the mistaken belief in consent defense in rape, and state protection of pornography185 are all gendered acts of government. Are they facial discrimination? From the standpoint of a woman being injured by them, are they state action? If not, are the concepts gender biased? These forms of discrimination look like much of it: perhaps less provably purposeful than the existing model for intentional, but far from facially neutral and massively disparate in impact, they show a supportive interaction between government permission or omission and male aggression. More explicitly invidious than the neutral, but less superficially intentional than existing

184. Useful texts urging an approach consistent with the one advanced here are Fiss, Groups and the Equal Protection Clause, 5 PHIL. & PUB. AFF. 107 (1976), and Strauss, The Myth of Colorblindness, 1986 S up . Ct . Rev . 99.

185. For an illustration of this last category of gendered law, see American Booksellers Ass’n v. Hudnut, 771 F.2d 323 (7th Cir. 1985), summarily offd, 475 U.S. 1001 (1986).

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requirements for motive, such discriminations have social markers of sex written all over them and would arguably happen very differently if the stance of the government were different.186 Such laws and practices are simply bi­ ased, their one-sidedness diagnosable from subordinate group disadvantage, provable from invidious social meaning and damaging material consequences. Failure to see the state’s hand in these examples would miss much of the way law insinuates itself into social life, intruding on and structuring relations between the sexes, institutionalizing male dominance. Equality approaches are often faulted as less powerful because inherently relative, while other approaches like liberty or security or privacy are thought more powerful because absolute. Existing absolutes have not proven particularly reliable; one suspects they are usually defined sub rosa in relative terms any­ way. It is true that equality never entirely escapes the comparative, but sub­ stantive comparisons that recognize hierarchy and history pose few of the dangers that abstract Aristotelian comparisons do. Nor must the standard for comparison be conceded. Subordinate groups may challenge the dominant standard as a form of bias in itself. Equality allows critique of the social partiality of standards as well as opportunity to live up to existing ones. The contextual nature of the equality right seems to me a strength: what it seeks is always real, because it is real for someone. In one’s zeal to make deeper change, it should not be overlooked that actually having the best any group currently has— for example, not being about to be raped at any moment— would be a big improvement for most of us. I am told that sex equality is not a desirable approach to reproductive control because it has a sunset built into it. Even if we had equality, wouldn’t women still need abortions? If sex equality existed, there would be no more forced sex; safe effective contraception would be available and the psychologi­ cal pressures surrounding its use would be gone; whatever womanhood meant, women would need neither men nor intercourse nor babies to prove it; abortions for sex selection as now practiced would be unthinkable; the workplace would be organized with women as much in mind as men; the care of children would be a priority for adults without respect to gender; women would be able to support themselves and their families (in whatever form) in dignity through the 186. For an example in the racial context, consider the recent case upholding employment practices which one dissenting Justice, aptly in my view, described as “bear[ing] an unsettling resemblance to aspects of a plantation economy.” Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 664 n.4 (1989) (Stevens, J., dissenting). Justice Stevens and the three Justices who joined him in his dissent indicated that the facts did not exactly fit either Title VII’s “disparate treatment” or its “disparate impact” model. See id. at 673-78 (citing International Bhd. of Teamsters v. United States, 431 U.S. 324, 339-40 n.20 (1977)). These two theories of discrimination find rough constitutional parallels in equal protection’s distinction between facial classifications and facially neutral classifications invidiously applied. If a segregated workplace does not fit either of the two available legal tropes for discrimination, perhaps a more responsive model should be created. The original creation of the models in Teamsters explicitly stated they were not mutually exclusive and did not say they were exhaustive. Teamsters, 431 U.S. at 335-36 n.15; see also Wards Cove, 490 U.S. at 668 n. 13. For an illuminating discussion of the Canadian concept of systemic discrimination, see Action Travail des Femmes v. C.N.R., [1987] 1 S.C.R. 114 (Dickson, C.J.).

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work they do. Now imagine the woman who is pregnant without wanting to be. True contraceptive failures would probably remain, as would fetuses with life-threatening disabilities, selective abortions (where too many fetuses in one uterus threatens the existence of all, the modern lifeboat situation), good old fashioned not paying attention (but without all its currently gendered determi­ nants), and the like. The point is, the politics of abortion would be so dramati­ cally reframed, and the numbers so drastically reduced, as to make the problem virtually unrecognizable. If authority were already just and body already autonomous, having an abortion would lose any dimension of resistance to unjust authority or reclamation of bodily autonomy. Under conditions of sex equality, I would personally be more interested in taking the man’s view into account.187 The issue of the pregnant woman’s nine-month commitment and risk would remain, and might have to be dispositive. The privacy approach might make more sense. Given the pervasiveness of inequality, imagination is the faculty required to think in sex equality terms. What would it be like if women had power, knowing what women know? Even under present conditions for women, two women with power under existing law, Madam Justice Bertha Wilson of Canada and Justice Sandra Day O’Connor of the United States, have written highly evocative abortion opinions. They are marked, on my reading, by a distinctively nonabstract and nonappropriative empathy. Both woman and fetus are real in their minds at once. Madam Justice Wilson, joining an opinion that invalidated Canada’s criminal abortion law, speaks eloquently of the woman facing the abortion decision, highlighting the need to take her point of view seriously: “It is probably impossible for a man to respond, even imaginatively, to [the woman’s abortion] dilemma not just because it is outside the realm of his personal experience . . . but because he can relate to it only by objectifying i t . . . . ” In the history of human rights, she sees “the history of men struggling to assert their dignity and common humanity against an overbearing state apparatus.” The history of women’s rights, by contrast, has been “a struggle to eliminate discrimination, to achieve a place for women in a man’s world, to develop a set of legislative reforms in order to place women in the same position as men . . . not to define the rights of women in relation to their special place in the societal structure and in relation to the biological distinction 187. This is properly rejected under current law and social conditions. See, e.g., Planned Parenthood v. Danforth, 428 U.S. 52,69-71 (1976) (states cannot constitutionally give spouse veto power over woman’s first-trimester abortion decision); Wolfe v. Schroering, 541 F.2d 523, 525-26 (6th Cir. 1976) (expanding Danforth to second trimester); Poe v. Gerstein, 517 F.2d 787, 794-96 (5th Cir. 1975) (man’s right out­ weighed), aff'd, Gerstein v. Coe, 428 U.S. 901 (1976); Doe v. Rampton, 366 F. Supp. 189, 193 (C.D. Utah 1973) (individual right of woman can’t be burdened by veto); Conn v. Conn, 526 N.E.2d 958 (Ind.) (refusal to reconsider Danforth’s ruling that putative fathers may not interfere with women’s abortion decisions), cert, denied, 488 U.S. 955 (1988); Tremblay v. Daigle, [1989] 2 S.C.R. 530 (no legal basis for putative father blocking abortion); Paton v. United Kingdom, 3 E.H.R.R. 408 (1980) (right to respect for family life does not give putative father right to be consulted on, or to make applications about, wife’s intended abortion).

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between the two sexes.” Reproductive control is properly “an integral part of modern woman’s struggle to assert her dignity and worth as a human being.” 188 In other words, it is a sex equality issue. Justice Wilson’s decision also retains some state interest in fetal life. Justice O’Connor is similarly alive to the predicament of the pregnant woman who needs an abortion yet is also unwilling to disregard the fetus, espe­ cially the potentially viable one.189 She has expressed serious doubts about Roe, but her vote alone has prevented its repudiation.190 Taken together, and interpolating what is unspoken from what is spoken, the views of these Justices could be seen to request an approach to abortion that values women unequivo­ cally but does not trivialize fetal life. Why, they seem to be asking, must this life or death decision be, by law, in women's hands? Sex inequality is the answer. Anticipating the full reach of the difference sex equality would make is another matter. The challenge of grounded thinking and keeping faith with silenced women means facing that we cannot know what women not unequal as women would want, how sexuality would be constructed, how law would relate to society, what form the state would take, or even if there would be one.

188. Morgenthaler v. The Queen, [1988] 1 S.C.R. 30, 172 (Wilson, I , concurring). 189. Webster v. Reproductive Health Servs., 109 S. Ct. 3040,3058-64 (1989) (O’Connor, J., concurring in part and concurring in judgment). 190. Id. See also Justice O’Connor’s decision in Hodgson v. Minnesota, 110 S. Ct. 2926,2950 (1990), in which she stresses the dilemma of the neglected or abused girl seeking an abortion and the inadequacy of the state’s procedures for addressing her need not to be required to notify her parents.

[11] PRENATAL INVASIONS & INTERVENTIONS: WHAT’S WRONG W ITH FETAL RIGHTS

Ja n e t G a l l a g h e r *

In 1984, in Chicago, a Nigerian woman expecting triplets was hospitalized for the final period of her pregnancy. The woman and her husband steadfastly reiterated their unwillingness to con­ sent to the Caesarean section that doctors regarded as necessary for a safe multiple birth.*1 As the woman’s due date approached, doctors and hospital legal counsel obtained a court order granting the hospital administrator temporary custody of the triplets and authorizing a Caesarean section as soon as the woman went into labor. “Although this plan was known to all the residents, it was never presented to the patient. She was not given the opportunity to seek care elsewhere.”2 * Assistant Corporation Counsel, New York City Department of Law. (The views expressed in this Article are the author's and do not necessarily reflect the views of the Department); B.A., Manhattanville College, 1967; J.D., Rutgers-Newark, 1982. I am grateful to Sarah Bennett, Rhonda Copelon, Ellen Gruber Garvey, Nancy Savage, Nadine Taub, and Eileen Willenborg for their comments and assistance. This Article was written while I was Director of the Civil Liberties & Public Policy Program at Hampshire College. I appreciate the college’s support. 1V. Kolder, Women*s Health Law: A Feminist Perspective, 1-2 (Aug. 1985) (unpub­ lished manuscript) (on file at the H a r v . W o m e n ’s L.J.). Triplet gestations are associated with higher neonatal morbidity and mortality primarily due to the increased frequency of premature births and other problems including pre-eclampsia, fetal growth retardation, congenital anomalies, placenta previa, cord accidents, malpresentations (any fetal position other than head first), dysfunctional labor and post-partum hemorrhage . . . . In the studies of triplets that have been published. . . some authors. . . advocate cesarean section as the method of choice . . . . Other authors have found no advantage to routine cesarean delivery. V. Kolder, Triplets (Feb. 22, 1987) (unpublished notes) (on file at the L.J.) (citations omitted). 2 Kolder, Women's Health Law, supra note 1, at 2.

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Confronted with the doctor’s intentions, the woman and her husband became irate. The husband was asked to leave, refused, and was forcedly removed from the hospital by seven security officers. The woman became combative and was placed in full leathers, a term that refers to leather wrist and ankle cuffs that are attached to the four corners of a bed to prevent the patient from moving. Despite her re­ straints, the woman continued to scream for help and bit through her intravenous tubing in an attempt to get free.3 Some days later, the hospital newsletter published a photo­ graph of the woman and her three children, making no mention of the violent melee attending the birth.

I. INTRODUCTION In the past several years, popular media reports and scholarly commentaries have hailed the emergence of a legal doctrine rec­ ognizing “fetal rights.”4 The claims for legal status for the unborn are based upon scattered case and statutory law which arguably grant implicit legal recognition to fetuses.3 The claim has been made, for example, that if doctors judge that an unborn child is >id. 4 Other articles on this topic include: Nelson, Buggy & Weil, Forced Medical Treatment o f Pregnant Women: Compelling Each to Live as Seems Good to the R est, 37 H a s t i n g s L.J. 703 (1986); Johnsen, The Creation o f Fetal Rights: Conflicts With Women’s Consti­ tutional Rights; Liberty, Privacy, and Equal Protection, 95 Y a l e L.J. 599 (1986); Note, Recovery fo r Prenatal Injuries: The Right o f a Child Against Its M other, 10 S u f f o l k U.L. R e v . 582 (1986); Note, Parental Liability fo r Prenatal Injury, 14 C o l u m . J.L. & Soc. P r o b s . 47 (1978); Parness, The Duty to Prevent Handicaps: Laws Promoting the Prevention o f Handicaps to Newborns, 5 W. N e w E n g l . L. R e v . 431 (1983); Parness & Pritchard, To Be or N ot to Be: Protecting the Unborn's Potentiality o f Life, 51 U. ClN. L. R e v . 257 (1982); Note, Fetal Rights: Defining "Person" under 42 U.S.C. § ¡983, 1983 U. III. L. R e v . 347 (1983); Note, The Feud Patient and the Unwilling Mother: A Standard fo r Judicial Intervention, 14 P a c . L.J, 1065 (1983); Note, Constitutional Limitations on State Intervention in Prenatal Care, 67 V a . L. R e v . 1051 (1981); Note, Family Law— Court-Ordered Surgery fo r the Protection o f a Viable Fetus, 5 W. N e w E n g . L. R e v . 125 (1982); Andrews, A Delicate Condition, 13 S t u d e n t L a w y e r , May 1985,30; Lenow, The Fetus as a Patient: Emerging Rights as a Person?, 9 A m . J. o f L. & M e d . 1 (1983); Gallagher, The Fetus and the Law, Ms., Sept. 1984. s Recent Development^ Torts—Wrongful Death—Unborn Child: The Estate o f an Un­ born Child Has a Cause o f Action fo r Wrongful Death: O 'Neill v. Morse, 7 0 M i c h . L . R e v . 729, 746-47 (1972) [hereinafter Torts—Wrongful Death). See also Parness, supra note 4, at 453 n.119 (1983); infra note 156-63 and accompanying text (discussion of tort liability).

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at serious risk, a pregnant woman may be forcibly subjected to a Caesarean section despite her explicit refusal;6 that govern­ mental restraints may be placed on a pregnant woman’s physical activities, diet, and lifestyle;7 that mothers can be held liable in tort for injuries to children occasioned by their “prenatal negli­ gence;”8 and that terminally ill pregnant women should be ex­ cluded from the protection of “living will” statutes.9 John Robertson, a leading fetal rights advocate, posits a theory of “contingent legal personhood” which would subject women to retrospective criminal and civil liability for all damaging acts and omissions before a child is bom.10 He would license governmen­ tal imposition of restraints on or medical invasions of pregnant women under the child abuse statutes even before viability if there were clear and convincing evidence of a woman’s intent to waive her right to abortion.11 Pregnant women at risk would be held liable for failure to undergo prenatal tests.12Robertson posits a “compelling public interest in forcing mothers to acquire infor­ mation about fetal health,” 13 and foresees mandatory screening of the fetus with criminal penalties for evasion.14 The most dramatic and highly publicized claims of “fetal rights” have been made in the context of coerced Caesarean sections. The casebooks report only one instance in which a court has been asked to order a Caesarean;15 however, a search of the general news reports, medical literature, and contacts with law­ yers, judges, and doctors unearth details of eleven known cases.16 6 Jefferson v. Griffin Spalding County Hosp. Auth., 247 Ga. 86, 274 S.E.2d 457 (1981). 7 Pamess, supra note 4, at 431; Robertson, The Right to Procreate and In Utero Fetal Therapy, 3 J. of L egal Med . 333 (1982) [hereinafter Robertson, The Right to Procreate]. 8 S h a w , Conditional Prospective Rights o f the Fetus, 5 J . o f L e g a l M e d . 63 (1 9 8 4 ); D o u d e r a , Fetal Rights? It Depends., T r i a l , A p r . 1 9 8 2 , a t 3 8 . 9 E.g., III. An n . Stat . ch. 110 1/2, § 3(c) (Smith-Hurd 1984). 10 Robertson, The Right to Procreate, supra note 7, at 352 n.92. 11 Id. at 359. 12 Robertson, Procreative Liberty and the Control o f Conception, Pregnancy, and Childbirth, 69 Va . L. Rev. 405, 448-49 (1983) [hereinafter Robertson, Procreative Liberty], w Robertson, Procreative Liberty, supra note 12, at 450. But see B.K. Rothman, T he T entative P regnancy: P renatal D iagnosis and the F uture of Motherhood (1986) (medical sociologist Barbara Katz Rothman on the sometimes devastating impact of prenatal testing even on the pregnancies of women who choose to employ it). 14 Robertson, Procreative Liberty, supra note 12, at 449. Noting that chorionic villi biopsy is less invasive, Shaw suggests that once it has become an established procedure, an argument can be made that all pregnancies be screened. Shaw, supra note 8, at 77. 15Jefferson, 247 Ga. 86, 274 S.E.2d 457. 15 The cases are: Jefferson, 247 Ga. 86, 274 S.E.2d 457; In re Madyun Fetus, Daily

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While the Caesarean section cases provide the most detailed and drastic examples, fetal rights claims have also arisen in cases involving detention or forced treatment of pregnant women.17 The fetal rights theorists’ desire to insure the birth of healthy children ignores the fact that women possess fundamental rights which preclude the kind and degree of government intervention they propose. A pregnant woman has a right to refuse medical intervention and a right to be free of any unique criminal or civil liability for her conduct during pregnancy and birth. This analysis relies less upon R o e v. Wade’s18 assessment of the legal personhood of the fetus in American law than upon the common law and constitutional rights of bodily integrity and personal decision making on which R o e itself was grounded. Along with the rights delineated in R o e , cases concerning the right to refuse medical treatment, coerced .organ donations, and searches involving bodily intrusion raise analogous issues that support the pregnant woman’s right to refuse state intervention. Examination of the fetal rights proposals in light of the balancing tests, standards of review, and procedural requirements regularly imposed in these analogous cases makes clear that they cannot withstand the judicial scrutiny demanded.19*6 2

W a s h . L aw R e p . , Oct. 2 9 , 1 9 8 6 , at 2 2 3 3 , col. 3 (D.C. July 2 6 , 198 6 ); a Colorado case described in Bowes & Selgestad, 5 8 O b s t e t . & G y n e c o l . 2 0 9 (1 9 8 1 ); a New York City case described to me by New York City Judge Margaret Taylor and subsequently cited in Gallagher, The Fetus and the Law: Whose Life Js It Anyway?, 13 Ms., Sept. 1984, at 6 2 , 1 3 4 -3 5 ; In re Ann Miller, Supreme Ct. Special Term (Onondaga County, July 3 , 1982) (on file at H a r v . W o m e n ’s L J.); a 1982 Chicago case, described in Custodian Appointed to Protest Viable Unborn Child's Life, National Right to Life Nev/s, March 11, 1982; a 1984 Washington state case of which I learned from attorney Daniel M. Arnold, letter from Daniel Arnold to Janet Gallagher (May 2 6 , 1984) (discussing Case No. 8 4-7-500060 , Sup. Ct. of Wash., Juv. Div.) (on file at H a r v . W o m e n ’s L.J.); a case involving an African woman in the United States, Medical Ethics Case Conference: Ethical and Legal Issues in a Court Ordered Caesarean Section, M e d i c a l H u m a n i t i e s R e p o r t issued by the Medical Humanities Program, Michigan State University (Winter 1984) [hereinafter Medical Ethics Case Conferencej; a case in which doctors proceeded to operate on a nonconsenting woman without judicial authority, reported in Jurow & Paul, Cesarean Delivery for Fetal Distress Without Maternal Consent, 63 O b s t e t . & G y n e c o l . 5 96 (1 9 8 4 ); a 1984 Chicago case described in Kolder, supra note 1; a 1982 Michigan case outlined in correspondence with Ellen M. Tickner, Clinical Assistant Professor of Law, University of Michigan Law School (May 3 1 , 1983) (on file at the H a r v . W o m e n ’s L.J.). 17 See infra notes 198-202 and accompanying text. 18 410 U.S. 113 (1973). 19 This Article analyzes fetal rights primarily in light of the medical intervention and bodily integrity case law. For a discussion of gender discrimination, see Johnsen, supra note 4, at 620-25.

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This Article will explore how the pregnant woman’s funda­ mental rights to bodily integrity, self-determination, and privacy protect her against government intrusion into her medical deci­ sions. It will critically analyze the state interests fetal rights proponents assert to override the fundamental rights of women. Finally, this Article will examine the possibility of an alternative balancing test, and the availability of less constitutionally and physically violative means of achieving the claimed state objectives. Most of the “fetal rights” cases examined in this Article could and should have been avoided. That they occur at all reflects the failures of public policy, medical care and social services, and human communication. Treatment refusals like those discussed in this Article are rare. Women have always put themselves at risk to bear children. In fact, pregnant and birthing women are altogether too compliant in their dealings with the medical profes­ sion and in their willingness to accept invasive procedures.20Not only have there been no published reports of women refusing fetal surgery, doctors involved in the early prenatal research speak of having to dissuade anxious women seeking new procedures.21 Nonetheless, fetal rights claims can arise in sympathetic con­ texts. Doctors and social workers may find themselves con­ fronted by agonizing dilemmas posed by a pregnant woman’s behavior. There will be cases in which the doctors’ worst fears will prove well-founded. But even in those cases where the threat to the unborn child is real, the benefits of the proposed treatment indisputable, and the risks to the pregnant woman minimal, courts must honor the woman’s refusal. In medical decision making and pregnancy reg­ ulation cases, as in the context of abortion, society’s relationship to the fetus must be mediated by the woman within whose body it is. Given the geography of the situation, the decision maker must be the pregnant woman, not doctors, social workers, or even judges. The individual and societal costs of placing the » See, e.g., N. Cohen & L. E stner , S ilent K nife : C esarean Prevention and V aginal Birth After Cesarean (1983). 21 Address by Dr. William H. Clewell, American Society of Law & Medicine Confer­ ence, Boston (Oct. 29, 1984). See also Jameson, I Risked My Life to Have a Baby, C hatelaine, Mar. 1985, at 52.

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power of decision making anywhere but with the pregnant woman are simply too great.

A . The T h resh h old Q u estion : D efin in g th e W o m a n ’s R ig h t Cases and commentaries supporting the fetal rights claims have focused on the legal status of the fetus.22 The question posed by the coerced medical treatment cases concerns the legal and moral status of women, pregnant or not. The abstract discussion of fetal status is necessarily secondary to the central issue of a pregnant woman’s rights.23 Judges confronted with such cases need not reach the issue of full legal personhood for the fetus. The threshhold and determinative questions in medical inter­ vention cases are really whether and when the government, doc­ tors, or other outsiders may: 1) usurp the pregnant woman’ s individual and familial decision making rights; and 2) appropriate or invade the pregnant woman’s body to advance what they perceive to be the therapeutic interests of an alleged second patient, the fetus. Fetal rights theorists assume that R o e ’s analysis of the scope of the abortion right also determines a woman’s rights in the coerced medical treatment context.24 But the pregnant woman’s right to shape her own medical care and that of her unborn child draws upon a wider range of precedents, demands a distinct 22 See, e.g., King, The Juridical Status o f the Fetus: A Proposal for Legal Protection o f the Unborn, 77 Mich . L. R ev . 1647 (1979); Robertson, The Right to Procreate, supra note 7; Shaw, supra note 8. 23 Dr. Beverly Wildung Harrison, Professor of Christian Ethics at Union Theological Seminary, declares: Some readers may be surprised, perhaps even offended, by my decision to delay a full discussion of [the] key issue [of the value of fetal life]. I would not defer this question if I agreed with the premise most moralists assume—that the status of fetal life is the determining issue in the moral debate about abortion. In fact, I believe that whenever we encounter this view we should be aware that the line of moral reasoning sustaining it is intrinsically sexist. The well-being of a woman and the value of her life plan always must be recognized as of intrinsic value in any appeal to intrinsic value in a moral analysis of abortion. B.W. H arrison, Our R ight to Choose: T oward a N ew Ethic of Abortion 16-17 (1983). 24 The fetal rights arguments also require a misreading of Roe even in its own limited terms. See infra notes 25-34 and accompanying text.

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analysis and balancing test, and requires a fresh examination of R o e itself.

B . The M isin te rp re ta tio n o f R o e

A sharp distinction must be drawn between the state’s power to limit a woman’s right to choose an abortion after viability as outlined in R o e , and the interpretation of R o e espoused by fetal rights advocates. Invocation of R o e as an authority for disre­ garding a woman’s objection to surgery demands a serious dis­ tortion of that landmark case. Such a reading is at odds with the Supreme Court’s use of R o e in scrutinizing specific state and local laws regulating abortion,25 and with the established inter­ pretation of the case in the area of medical decision making.26 It also conflicts with the Supreme Court’s historic recognition and protection of the individual rights of procreative choice,27 and with its assessment of the legal status of the fetus.28 The fetal rights advocates rely particularly on the following passage from R o e:

With respect to the State’s important and legitimate inter­ est in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capa­ bility of meaningful life outside the mother’s womb . . . . If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.29

Even in the comparatively narrow context of abortion regula­ tion, however, R o e makes clear that a woman’s life and health 25 See infra note 31 and accompanying text. 26 See infra notes 35-37 and accompanying text. 27 See infra note 101 and accompanying text. 28 410 U.S. at 157-62. » Id. at 163-64.

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outweigh any state interest that may be asserted in the potential life of a viable fetus.30 The Supreme Court’s most recent abortion decision forcefully reiterates the primacy of the woman’s health. The Court struck down a Pennsylvania statute that required the use of the abortion technique providing “the best opportunity for the unborn child to be aborted alive” because the provision may have required increased medical risk to the woman.31 In the context of medical decision making, R o e is more appro­ priately viewed as a patient’s rights precedent than as establishing a state interest in the fetus. This is so despite Justice Blackmun’s original disavowal of feminist legal arguments that would have grounded the abortion right in “the sacred right of every individ­ ual to the possession and control of her own person” :32 [I]t is not clear to us that the claim asserted by some am ici that one has an unlimited right to do with one’ s body as one pleases bears a close relationship to the right of privacy previously articulated in the Court’s decisions. The Court has refused to recognize an unlimited right of this kind in the past.33 Ironically, both public perception of the case and its subsequent treatment by state courts acting in gender-neutral, non-abortion contexts reflects an understanding of R o e much more akin to the original feminist claim to woman’s “possession and control of her own person.”34 30 Thornburgh v. Am. College of Obstet. & Gynecol., 106 S. Ct. 2169 (1986). The term “health” includes any psychological, familial, or emotional factors that may affect a woman’s well-being. Doe v. Bolton, 410 U.S. 179, 192 (1973). The degree of a woman’s choice in determining the treatment she receives during pregnancy bears directly on her psychological and physical state during and after pregnancy. See infra notes 211213 and accompanying text. 31 Thornburgh, 106 S. Ct. 2169 (discussing 18 Pa . Cons. Stat. Ann . § 3210(b) (Purdon 1983)). As in its earlier abortion decisions, the Court rejected any “‘trade-off* between the woman's health and additional percentage points of fetal survival.” Id, at 2183 (quoting Colautti v. Franklin, 439 U.S. 379, 400 (1979)). 32 Paragraph 13(a) of Complaint in Abramowicz v. Lefkowitz, quoted in E. Rubin , Abortion, Politics, and the Courts: R oe v , Wad e and Its Aftermath 49 (1982) (challenge to New York State’s abortion laws). 33 Roe, 410 U.S. at 154 (citations omitted). 34 Paragraph 13(a) of Complaint in Abramowicz, supra note 32. In 1981, the California Supreme Court described the abortion right in terms closer to the early feminist litigation, calling it “central to a woman’s control not only of her body, but also to the control of her social role and personal destiny.” Committee to Defend Reproduction Rights v. Meyers, 29 Cal. 3d 252, 275 (1981).

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C. Roe a n d I ts P ro g e n y : P a tie n ts ’ R ig h ts In fact, R o e has emerged as the key precedent in the trend toward expanded protection of patients’ rights in medical decision making. In one of the earliest and most important cases in the trend towards control over one’s own person, In re Q u in lan ,3 *5 3 the New Jersey Supreme Court relied upon R o e when it recog­ nized a comatose and irreversibly ill woman’s right to privacy and allowed removal of her artificial life support. Three years later, the Supreme Judicial Court of Massachusetts also drew directly upon R o e as authority for its widely noted opinion in S u p erin ten d en t o f B e lc h e rto w n S ta te S c h o o l v. S aik e w ic z .36 One widely noted Michigan case barring psychosurgery relied in part on R o e , characterizing it as an affirmation of “the right of a woman to control her own body by determining whether she wishes to terminate a pregnancy.”37 33

The court in Griswold found the unwritten constitutional right of privacy to exist in the penumbra of specific guarantees of the Bill of Rights “formed by emanations from those guarantees that help give them life and substance.” 381 U.S. at 484, 85 S.Ct. at 1681,14 L.Ed.2d. at 514. Presumably this right is broad enough to encom­ pass a patient’s decision to decline medical treatment under certain circumstances in much the same way it is broad enough to encompass a woman’s decision to terminate pregnancy under certain conditions. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 727, 35 L.Ed.2d 147, 177 (1973). Id. at 40, 355 A.2d at 663. 70 N.J. 10, 355 A.2d 647 (1976). 36 373 Mass. 728, 370 N.E.2d 417 (1977). Of even broader import, but arising from the same regard for human dignity and self-determination, is the unwritten constitutional right of privacy found in the penumbra of specific guaranties of the Bill of Rights. Griswold v. Connecticut, 381 U.S. 479,484,85 S.Ct. 328, 13 L.Ed.2d 339 (1965). As this constitutional guarantee reaches out to protect the freedom of women to terminate pregnancy under certain conditions, Roe v. Wade, 410 U.S. 113, 153, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), so it encompasses the right of a patient to preserve his or her right of privacy against unwanted infringements of bodily integrity in appropriate circumstances. Id. at 739, 370 N.E.2d at 424. 37 Kaimowitz v. Dep’t of Mental Health, 2 Prison L. Rep. 433 (1973). In Kaimowitz, a Michigan court barred experimental psychosurgery on a mental patient. The court cited the impossibility of obtaining truly informed consent given the paucity of knowledge available as to the operation’s effects and the questionable trustworthiness of consent obtained from an involuntarily committed patient. Id. at 477, 478. The court held that even in these circumstances The keystone to any intrusion upon the body of a person must be full, adequate and informed consent. The integrity of the individual must be protected from invasion into his body and personality not voluntarily agreed to. Consent is not an

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Far from licensing the sort of invasion and appropriation of the woman’ s body proposed by fetal rights advocates, R o e actually vindicates a woman’s right to refuse medical intervention during pregnancy.

II. THE W OMAN’S RIGHT DEFINED Even if we accept fetal rights advocates’ reading of R o e , there is still no justification for medical intrusion into women’s lives. Those who balk at recognizing that unwanted pregnancy and childbirth may in themselves constitute a form of physical invasion38must concede that compelling drastic surgical intrusion such as a Caesarean section invades the well-established rights of self-determination and bodily integrity. Those rights enjoyed substantial legal protection long before R o e ,39 and they are dis­ tinct from, and unaffected by, whatever post-viability limits on abortion survive constitutional scrutiny.40

A . S elf-D ete rm in a tio n a n d B o d ily In te g rity In the years since In re Q uinlan and S a ik ew icz, a growing number of courts throughout the country have acknowledged that

idle or symbolic act; it is a fundamental requirement for the protection of the individual’s integrity. Id. at 477. 38 See Right to Choose v. Byrne: Brief Amici Curiae, 7 Women’s Rts . L. Rep . 2 8 5 , 28 7 (1 9 8 2 ); Regan, Rewriting Roe v. Wade, 7 7 Mich . L. R ev . 1569 (1979). '9 Judicial protection for bodily integrity has both common law and constitutional origins. See, e.g., Cantor, A Patient's Decision to Decline Lifesaving Medical Treatment: Bodily Integrity Versus the Preservation o f Life, 2 6 R u t g e r s L . R e v . 2 2 8 , 2 3 7 (1973); Clarke, The Choice to Refuse or Withhold Medical Treatment: The Emerging Technology and Medical-Ethical Consensus, 13 C r e i g h t o n L . R e v . 7 9 5 , 7 9 8 - 9 9 (1 9 8 0 ). The right, articulated perhaps most clearly in the doctrine of informed consent, has been attributed to several theoretical groundings in common law: assault, battery, negligence, malprac­ tice, “or even trespass.” Cantor, at 2 3 7 . The doctrine of informed consent protects not only a patient’s right to full disclosure of medical information, but “[i]t also encompasses the notion of consent, which recognizes a right of choice which, in turn, necessarily presupposes the right to refuse rather than consent.” Clarke, at 8 0 0 . 40 See Colautti v. Franklin, 439 U.S. 379 (1979); Thornburgh, 106 S. Ct. 2169.

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individual rights41 may override whatever state interests exist in forcing a patient to undergo medical treatment.42* Courts confronted with conflicts over treatment refusals gen­ erally conduct a balancing test: weighing the individual’s privacy, self-respect, and the degree of bodily invasion against the claimed state interests of preserving human life and the refusal’s possible impact on third parties.42 These ad hoc balancing tests result in a range of court opinions, but judicial solicitude for the individual rights of self-determina­ tion and bodily integrity has sharply increased in recent years.44 Decisions upholding treatment refusals are grounded in an estab­ lished tradition of respect for the individual’ s bodily integrity: the

41L. T ribe, American Constitutional L aw § 15-9 (1978). “[T]he body constitutes the major locus of separation between the individual and the world and is in that sense the first object of each person’s freedom.” Id. Recent feminist scholarship has emphasized the importance of bodily integrity. Chris­ tian ethicist Beverly Wildung Harrison stresses: . . . the bodily integrity of any moral agent as a foundational condition of human well-being and dignity . . . . (T]he power of self-direction as an embodied human being, is even more substantively conditional of human worth and dignity than most of the political rights reputed to be basic in a liberal society. B.W. H arrison, supra note 23, 193-94 (footnote omitted). Political scientist Rosalind Petchesky notes: While privacy, like property, has a distinctly negative connotation that is exclu­ sionary and asocial, when applied to persons as persons—in their concrete, phys­ ical being—it also has a positive sense that roughly coincides with the notion of “individual self-determination.” Control over one’s body is an essential part of being an individual with needs and rights, a concept that is the most powerful legacy of the liberal political tradition. R. P etchesky, A bortion and Woman’s Choice : T he State , Sexuality, and Re­ productive F reedom 3-4 (1984). 42 See Saikewicz, 373 Mass, at 744, 370 N.E.2d at 427. While some of these cases involve fatally ill patients* right to forego invasive or painful procedures that might prolong but cannot save their lives, the right to refuse treatment is not limited to the terminally ill. See, e.g.y Bouvia v. Superior Court, 225 Cal. Rptr. 297, 179 Cal. App. 3d 1127 (1986); In re Conroy, 98 N J . 329, 486 A.2d 1209 (1985); John F. Kennedy Hosp. v. Bludworth, 452 So. 2d 921 (Fla. 1984). 45 See, e.g., Brophy v. New England Sinai Hosp., 398 Mass. 417, 497 N.E.2d 626 (1986). 44 See, e.g., In re Conroy, 98 N.J. 329, 349-50, 486 A.2d 1209, 1223-24; Bartling v. Superior Court, 163 Cal. App. 3d 186, 193-96, 209 Cal. Rptr. 220, 224-26 (Cal. Ct. App. 1984); In re Hier, 18 Mass. App. Ct. 200,210,464 N.E.2d 959,965 (Mass. App. Ct. 1984); In re Colyer, 99 Wash. 2d 114, 122-23, 660 P.2d 738, 743 (1983); Saikewicz, 373 Mass, at 744, 370 N.E.2d at 427.

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recognition of “the inviolability of [the] person,” and the “regard for human dignity and self-determination.”45 So central is the legal tradition of respect for self-determination that the courts have developed procedures to protect the medical decision making rights of the mentally disabled46 and the unconscious47 by allowing others to assert them on their behalf. Judges of Massachusetts’ highest court, for example, have barred the non-emergency use of antipsychotic drugs on institutionalized mental patients who refuse them, unless the state proves both that the patient is incompetent to make such a decision, and that, if competent, the patient would chose to take the drug.48Pregnant women have as much of a right to bodily integrity as the mentally incompetent. The Caesarean section cases and other medical invasions of pregnant women cannot withstand the deference to bodily integ­ rity and self-determination and the concern for due process cus­ tomarily displayed by courts in cases raising similar issues: surg­ ical body searches of criminal defendants,49 the administration of psychotropic drugs to institutionalized mental patients,50 or the sterilization of the mentally disabled.51 Court-ordered medical treatment— even of the incompetent or of those whose legal rights are limited— is imposed only after detailed fact finding conducted through full adversarial hearings with scrupulous attention to procedural rights. Doctors must meet an exacting standard of proof: establishing both the necessity of the procedure and the

49 Saikewicz, 373 Mass, at 739, 370 N.E.2d at 424 (quoting Pratt v. Davis, 118 111. App. 161, 166 (1905), q ff'd , 224 III. 300, 79 N.E.2d 562 (1906)). 46 Id. at 745, 370 N.E.2d at 427; In re Grady, 85 N.J. 235,262,426 A.2d 467,474 (1981). 47 See, e.g.9In re Quinlan, 70 N J. 10,54-55,355 A.2d 647, 664, cert, denied, 429 U.S. 922 (1976). 45 Rogers v. Comm’r of Dep’t of Mental Health, 390 Mass. 489,458 N.E.2d 308 (1983). 49 See infra, text accompanying notes 53-64. 55 See, e.g., People v. Medina, 705 P.2d 961, 970 (Col. 1986) (where the Colorado Supreme Court determined that an involuntarily committed psychotic and assaultive patient could not be treated with anti-psychotropic drugs without a full adversarial hearing). 51 Cases involving sterilization are particularly relevant to our inquiry because they implicate the same dual concerns with bodily integrity and procreative choice at stake in the Caesarean situations. Many jurisdictions have ruled that courts do not have the power to order the sterilization of mentally disabled persons. See the cases collected in In re Grady, 85 N.J. 235, 261, 426 A.2d 467 (1981). Judicial authorization of sterilization procedures is granted only after detailed fact finding under strict procedural standards. See, e.g., Guardianship of Hayes, 93 Wash.2d 228, 608 P.2d 635 (1980).

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fact that not less drastic means are available. Their burden in­ creases with the degree of invasiveness, risk, or indignity involved.

B . F ou rth A m e n d m e n t Fourth amendment restraints on search and seizure represent a source of explicit constitutional support for the pregnant wom­ an’s right to be free from bodily invasion.52 The 1985 Supreme Court decision in W in ston v. L e e 53 provides an authoritative anal­ ysis of the judicial scrutiny imposed on such proposed physical intrusions. In W in ston , a Virginia court ordered a robbery suspect to undergo surgery to remove a bullet that would provide evidence of his guilt or innocence. The Supreme Court held that the surgery would violate the defendant’s constitutional rights and reiterated that “[t]he overriding function of the fourth amendment is to protect personal privacy and dignity against unwarranted intru­ sion by the State,” and that “these values were ‘basic to a free society.’ ”54 The applicable test for determining whether the proposed search exceeds the bounds of “reasonableness” established by the fourth amendment requires a case-by-case balancing of the individual’s interest in the privacy and security of his person against the state’s need for evidence.55 The factors considered in this balancing test are: 1) “the extent to which the procedure may threaten the safety or health of the individual” ; 2) “the extent of intrusion upon the individual’s dignitary interests in personal privacy and bodily integrity” ; 3) the likelihood of the proposed procedure’s actual effectiveness in meeting the asserted state 52 U.S. Const, amend. IV: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and par­ ticularly describing the place to be searched, and the persons or things to be seized. 53 470 U.S. 753 (1985) 54 Id. at 760 (quoting Schmerber v. California, 384 U.S. 757, 767 (1966)). 55 Id. at 759-60.

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interest;56 and 4) the availability of less drastic alternatives. Even when the threshhold “reasonableness” test is met, cases and commentaries have emphasized the need for detailed procedural safeguards before any nonconsensual surgery is performed.57 In W in ston , the Supreme Court explicitly rejected any deter­ minative distinction between major and minor surgery, holding that a case-by-case analysis would be required even for less drastic intrusions.58 The Court made it clear that it regarded the general anaesthesia required by the proposed surgery as deeply demeaning.59 The Court’s concerns are equally applicable to a birthing woman whose decisions doctors wish to override. For example, a Caesarean section involves an incision into the ab­ dominal region through several layers of skin, tissue, and muscle while the woman is under general anaesthesia.60 Using the W in­ sto n standard, courts should be reluctant to order this procedure.61

* Id. at 761-62. 57Id. at 763. See Note, Nonconsensual Surgery: The Unkindest Cut o f All, 53 N otre Dame L. Rev. 291 (1977). The author would ban nonconsensual major surgery as a per sc violation of the fourth amendment. Under one proposed procedural standard the prosecutor must prove the following: that there is probable cause that the suspect committed the crime and that the evidence is within his or her body; that the evidence is crucial to the investigation; and that there is no less drastic means available to obtain it. Suspects would be entitled to full adversarial hearings and to a temporary stay pending appellate review of any court order authorizing surgery. Id. at 303-04. See, e.g.t United States v. Crowder, 543 F.2d 312 (D.C. Cir. 1976), cert„ denied, 429 U.S. 1062 (1977) (defendant anrested for murder had bullet forcibly removed from forearm, for evidentiary purposes, but not from thigh due to medical inadvisability). 58 Winston, 470 U.S. at 764 n.8. 59

When conducted with the consent of the patient, surgery requiring general anes­ thesia is not necessarily demeaning or intrusive. In such a case, the surgeon is carrying out the patient’s own will concerning the patient’s body and t(ic patient’s right to privacy is therefore preserved. In this case, however, the Court of Appeals noted that the Commonwealth proposes to take control of respondent's body, to “drug this citizen—not yet convicted of a criminal offense—with narcotics and barbituates into a state of unconsciousness” and then to search beneath his skin for evidence of a crime. This kind of surgery involves a virtually total divestment of respondent’s ordinary control over surgical probing beneath his skin. Id. at 765 (quoting Lee v. Winston, 717 F.2d 888,901 (4th Cir. 1983)). The court was also troubled by disputes over the medical risks involved in the procedure, noting that “the very uncertainty militates against finding the operation to be ‘reasonable.’” Id. at 766. 60 Infra note 137. 61 Similarly, the American legal system's generalized disapproval of direct “imposition of physical pain or extreme physical discomfort” finds its clearest expression in the

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W in ston stands for the proposition that the constitutional rights of individual security and the “most personal and deep-rooted expectations of privacy”62 require the judicial review of any pro­ posed surgical intrusion, even in cases involving significant state interests in public safety.63 It would be anomalous if nonconsensual medical procedures on a pregnant woman required a lesser standard than searches of a defendant in a serious criminal case. However, some judges have proved astonishingly casual in their treatment of requests to order surgery on pregnant women.64That conflicts over medical treatment during labor must necessarily be resolved speedily argues less for procedural omissions than against judicial attempts to play a role at all under such circumstances.

C . N o n -S u b o rd in a tio n

The notion that one individual’s body may be invaded and appropriated to the purposes of another is jarringly alien to the Anglo-American legal tradition. The 1978 case of M c F a ll v. S h im p 6S* presented a Pittsburgh judge with this issue: should the court order a concededly com­ petent individual to undergo a bone marrow transplant regarded by doctors as his cousin’s only chance to survive aplastic anemia? The proposed donor, forty-three year old David Shimp, refused to donate twenty-one ounces of bone marrow that might have doubled his cousin’s chance of survival. Judge John Flaherty refused to order the transplant, declaring: restrictions placed on corporal punishment. Regan, supra note 38, at 1584-85. In addition to applying the explicit constitutional ban on “cruel and unusual punishment” of the eighth amendment, courts have proved reluctant to allow so-called “organic” therapies such as psychosurgery. See Kaimowitz, 2 Prison L. Rep. 433. In a recent, highly-publicized eighth amendment case, the Supreme Court of South Carolina barred the castration of three convicted rapists who had chosen that option over 30-year sentences. State v. Brown, 284 S.C. 407,326 S.E.2d 410 (1985). 62 Regan, supra note 38, at 760. 63 The Court’s perception that the prosecution did not really require the alleged bullets to prove its case was vindicated. Defendant Lee received a 10-year sentence for the robbery. Bullet Privacy, N.Y. Times, Nov. 17, 1985, at A57, col. 1. w See infra notes 190-197. « McFall v. Shimp, 127 Pitts. Leg. J. 14 (Allegheny Cty., July 26, 1978).

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The common law has consistently held to a rule which provides that one human being is under no legal compulsion to give aid or to take action to save that human being or to rescue . . . . For our law to c o m p e l the Defendant to submit to an intrusion of his body would change every concept and principle upon which our society is founded. To do so would defeat the sanctity of the individual, and would impose a rule which would know no limits, and one could not imagine where the line would be drawn.66

Judge Flaherty’s opinion noted the ancient common law rule that there is no “duty to rescue,” because the law does not impose an obligation upon individuals to take action on behalf of another, even one in peril.67 As a recent survey of the law of “samaritanism” concluded, “The basic and well established common law principle is that one individual is not required to volunteer aid to another.”68 Affirmative duties imposed by statutory law— vaccinations,69 blood70 or “breathalyzer” tests,71 quarantines,72 seat belt require­ ments73— are permitted for safety or health purposes necessary for the general well-being of the public, including the individual upon whom the duty is imposed.74 Such invasions and burdens

« Id. at 14-15. a Id. at 14. 63 Regan, supra note 38, at 1608. 69 Jacobson v. Massachusetts, 197 U.S. 11 (1905) (Massachusetts statute which makes smallpox vaccine compulsory held constitutional). 70 Schmerber, 384 U.S. 757 (in criminal conviction for driving under the influence of alcohol, forced blood test held admissible under the fourth or fifth amendments). 71 State v. Albright, 98 Wis. 2d 663, 298 N.W.2d 196 (Wis. Ct. App. 1980) (Wisconsin driver held to have no constitutional right to refuse breathalyzer test). 72 Compagnie Française de Navigation à Vapeur v. State Board of Health, 186 U.S. 380 (1902) (held constitutional to exclude people within and without the state from a locality infested with a contagious or infectious disease). 73 E.g., N.Y. Vehicle & T raffic L aw § 1229-c (McKinney 1986) (requiring safety belts to be worn by the operator of a motor vehicle). 74 A number of states have enacted laws designed to encourage individuals to assist those in danger. See, e.g., N.J. S t a t . Ann . § 2A:62A-1 (West Supp. 1986). The over­ whelming number of these statutes are drafted to relieve potential rescuers of the spectre of tort liability. See Note, Duty to Aid the Endangered Act: The Impact and Potential o f the Vermont Approach, 7 V t . L . R e v . 1 4 3 , 182 app. (1982). As of 1982, only Vermont had passed a statute that establishes a duty to rescue. The Vermont statute specifically limits the duty to situations of grave harm in which intervention poses no risk to the bystander/intervenor; but, if that requirement is met, it imposes a fine for failure to act. See, e.g., V t . S t a t . A nn . tit. 12, § 519 (1973).

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are characterized and legitimized by “reciprocity.”75 They are not carried out or imposed on behalf of a specific individual no matter how innocent or deserving. Judicial refusal to physically subordinate one individual to an­ other is rooted in our common law and constitutional tradition. For example, common law courts have traditionally refused to order the specific performance of a contract, relying instead upon money damages to compensate the injured party. These rulings are grounded in “the principle that one cannot coerce the labor or personal service of another, even if the labor or personal service was initially voluntarily engaged in.”76 The common law right of self-determination also provides grounding for the resis­ tance to physical subordination. In the United States, principles of non-subordination find explicit constitutional expression in the thirteenth amendment.77 Adopted after the Civil War as part of the effort to eradicate the evils of Black slavery, the thirteenth amendment also bars other forms of involuntary personal service or labor.78 Even the most narrow interpretation of the thirteenth amend­ ment recognizes that its purpose was to prohibit “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 servi­ tude.”79In P le s s y v. F erg u so n , Justice Brown defined involuntary

” L. T ribe, supra note 41, § 15-9, at 917-18 (1978) (the idea that both society and the individual benefit from the rule or duty; a type of fairness ideal). 76 Testimony of Prof. Rhonda Copelon before the House Committee on the Judiciary Subcommittee on Civil and Constitutional Rights, April 3, 1985, p. 19 (citing Calamari & Perillo , Contracts § 16-5, at 585 (2d ed.); 4 P omeroy, E quity J urisprudence 276-79; In re Mary Clark, 1 Blackf. 122 and. 1821) (on file at H arv. Women’s L.J.). 77 U.S. Const, amend. XIII: Section 1. 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. Section 2. Congress shall have power to enforce this article by appropriate legislation. 78 See, e.g.y Trial Begins for Family Accused in Slavery Case, N.Y. Times, Feb. 11, 1984, at A13, col. 1; Briefing: Up From Slavery in N .C ., In These Times, May 18-24, 1983, at 5, col. 3; Recruiter Suspect in "Slave” Case Is Arrested, N.Y. Times, Feb. 4, 1982, at A18, col. 1; Bosses o f Migrants Sentenced fo r Slavery, N.Y. Times, Feb. 3, 1982, at A12, col. 2; Migrant Slavery Persists on Southeast’s Farms, N.Y. Times, Nov. 19, 1981, at A l, col. 1. 79 Bailey v. Alabama, 219 U.S. 219, 241 (1911).

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servitude as “a state of bondage; the ownership of mankind as chattel, or, at least the control of the labor and services of one man for the benefit of another, and the a b se n c e o f a le g a l riqh t to th e d is p o s a l o f his ow n p e r s o n , p ro p e rty , a n d se rv ic e s. ”80 The appropriation of a woman’s body by forced medical treat­ ment on behalf of a fetus has grave thirteenth amendment impli­ cations.81 It violates the woman’s rights of physical integrity and self-determination, and disregards her fundamental right to the “disposal of [her] own person, property, and services.”82

D . The T ran spla n t A n a lo g y An examination of courts’ treatment of cases involving physical invasions reveals the weak foundation of fetal rights theoreti­ cians’ arguments. In cases dealing with bone marrow or organ donations, for example, judges have absolutely refused to autho­ rize procedures where there has been an actual refusal;83 they have proceeded with great caution even in those cases involving legal incompetents in which subjective consent exists or can arguably be inferred. Interestingly enough, the two transplant cases84relied upon by fetal rights advocates and by the hospital lawyers in the Colorado General Hospital 1979 petition for a court order authorizing the performance of a Caesarean section on an unconsenting woman858 6 are actually most accurately regarded as court attempts to imple­ ment the wishes of, and serve the best interests of, incompetent siblings by preserving the lives of close relatives. In H a rt v. B ro w n ,96 for example, the court held that the traditional, inherent power of a court of equity allowed it to make a “substituted *®163 U.S. 537, 542 (1896) (emphasis added). 81 See Hubbard, Legal and Policy Implications o f Recent Advances in Prenatal Diag­ nosis and Fetal Therapy, 7 Women’s Rts . L. Rep . 201, 214 n.59 (1982) (a discussion of commentaries arguing that there is thirteenth amendment grounding for the abortion right). 82 Plessy v. Ferguson, 163 Ü.S. 537, 542. 83 See Shimp, 127 Pitts. Leg. J. 14. 84 See, e.g., Hart v. Brown, 29 Conn. Supp. 368,289 A.2d 386 (1972); Strunk v. Strunk, 445 S.W.2d 145 (Ky. Ct. App. 1969). 85 Bowes & Selgestad, supra note 16. 86 29 Conn. Supp. 368,289 A.2d 386.

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judgment”87 on behalf of an incompetent and rule that, given the excellent prognosis and negligible risks, the parents of a seven year old identical twin could authorize the kidney transplant necessary to her twin’s survival. The court, relying upon the assurances of a psychiatrist who had interviewed the child-donor, ascertained that “insofar as she may be capable of understanding she desires to donate her kidney so that her sister may return to her.”88 The court, noting that there was “no known opposition to” the procedure,89 allowed the parents to consent on the donor twin’s behalf. An earlier Kentucky case, S tru n k v. S tru n k ,90 authorized a kidney transplant from a twenty-seven year old man institution­ alized in a state school for the “feeble-minded” to his only sur­ viving sibling, a brother to whom the donor was greatly attached. The court, also employing the doctrine of substituted judgment,91 reasoned that the procedure was necessary to the proposed do­ nor’s well-being; it had been informed by expert witnesses that the death of his brother would have “an extremely traumatic effect”92 upon him.93 Even so, the S tru n k court’s decision was by a narrow four to three vote. The dissent argued that there was, in fact, no judicial power to authorize such a procedure through substituted judg­ ment. It noted that the surgery would create “some peril.”94 Quoting P rin c e v. M a ss a c h u s e tts to the effect that parents, while ‘“ free to become martyrs themselves,” ’ could not impose such a role on their children,95 the dissenters maintained that “[t]he ability to fully understand and consent is a prerequisite to the donation of a part of the human body.”96 Though sympathetic to 87 The doctrine of substituted judgment was developed to allow courts to transfer property from the estate of an incompetent to individuals to whom the incompetent was morally, though not legally, obliged. Such transfers were made on the theory that the incompetent would, if competent, have chosen to make the gift. Little v. Little, 576 S.W.2d 493, 497 (Tex. Civ. App. 1979). 88 29 Conn. Supp. at 375, 289 A.2d at 389. 89 Id. at 378, 289 A.2dat391. 90 445 S.W.2d 145. 91 Id. at 148. 92 Id. at 146. 93 See also Little, 576 S.W.2d at 497; In re Richardson, 284 So. 2d 185 (La. Ct. App. 1973) (although reaching different conclusions, both rely on best interests of the incom­ petent test). 94 445 S.W.2d at 150. 95 Id. (citing Prince v. Massachusetts, 321 U.S. 158, 170 (1944)). 96 Strunk, 445 S.W.2d at 150 (Steinfeld, J., dissenting).

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the petitioners, they argued that “[t]o hold, that committees, guardians or courts have such awesome power even in the per­ suasive case before us, could establish legal precedent, the dire result of which we cannot fathom.”97 A 1975 Wisconsin decision, In re G u ardian sh ip o f P e sc in sk i, barred a kidney transplant from an institutionalized mental pa­ tient to a younger sister. The court based its decision on the grounds that no record showed that the patient or any guardian had consented to the procedure, that there was no showing of benefit to the proposed donor, and that the court itself lacked power to authorize “a kidney transplant or any other surgical procedure on a living person.”98The P e sc in sk i decision continues to stand for refusal to countenance nonconsensual bodily inva­ sions for the sake of another.

E . P riv a c y

A pregnant woman’s fundamental right to be free of coerced medical treatment, then, finds grounding in well-established com­ mon law rights of bodily integrity and self-determination as well as in the explicit constitutional provisions of the fourth, eighth and thirteenth amendments. It is further guarded and enhanced by yet another strand of constitutional precedent: the privacy line of cases first granted explicit acknowledgment by the Supreme Court in G risw o ld v. C o n n ecticu t These cases recognize a sphere of intimate decisions into which the government may intrude only if it can show a compelling*3 9 7

77 M. at 151. * 67 Wis. 2d 4. 5, 226 N.W.2d 180, 181 (1975). ” 381 U.S. 479 (1965); see City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983); Bellotti v. Baird, 443 U.S. 622 (1979); Colautti v. Franklin, 439 U.S. 379 (1979); Zablocki v. Redhail, 434 U.S. 374 (1978); Carey v. Population Serv. Int’l, 431 U.S. 678 (1977); Planned Parenthood v. Danforth, 428 U.S. 52 (1976); Doe v. Bolton, 410 U.S. 179 (1973); Roe v. Wade, 410 U.S. 113 (1973); Eisenstadt v. Baird, 405 U.S. 438 (1972); Boddie v. Connecticut, 401 U.S. 371 (1971); Stanley v. Georgia, 394 U.S. 557 (1969); Loving v. Virginia, 388 U.S. 1 (1966).

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state interest that cannot be served by less drastic measures. While the very nature of the privacy right precludes rigid delin­ eation, it has been accorded protection in the context of mariage,100procreation,101 childrearing,102 and family life.103 Privacy rights have been extensively litigated in cases involving abortion. As noted in the discussion of R o e , fetal rights propo­ nents’ exclusive focus on the abortion cases as a source of wom­ en’s rights in pregnancy and birth conflicts is mistaken. But even in the abortion context, where the Court has acknowledged that the state may assert a compelling state interest in the potential life of a viable fetus, judicial scrutiny has resulted in the rejection of government regulations much less invasive than many of those envisioned under a fetal rights regime.104Thus, while the pregnant woman’s right to shape her own medical care and that of her unborn child is not limited by the contours of the right to abortion delineated in R o e and the later abortion cases, her fundamental right does draw upon those decisions’ emphasis on individual decision making and their insistence that the woman’s health and safety are paramount. As with abortion, government action in­ truding on the pregnant women’ s bodily integrity is subject to strict judicial scrutiny. The pregnant woman involved in a conflict with her doctors over the course of her medical treatment or her behavior is also vested with a distinct set of familial decision making rights. In the context of a choice to continue a pregnancy, her individual rights of bodily integrity, self-determination, and reproductive autonomy are augmented by precedent limiting state intrusion into parents’ choices for their children.105 While these choices are not beyond regulation by the state acting on behalf of the public interest,106 “freedom of personal choice in matters

Loving, 388 U.S. 1. 101 Skinner v. Oklahoma, 316 U.S. 535 (1942); Roe, 419 U.S. 113. Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925). 103 Moore v. City of East Cleveland, 431 U.S. 494 (1977) (reversed conviction under zoning ordinance which deprived defendant of due process by removing her right to choose the relatives with whom she would live). IWSee City o f Akron, 462 U.S. 416; Thornburgh, 106 S. Ct. 2169 (Pennsylvania abortion statute requiring informed consent regarding possible harms and financial assistance if live birth, presence of second physician, and detailed reports held unconstitutional). '« See, e.g., Pierce, 268 U.S. 510; Meyer v. Nebraska, 262 U.S. 390 (1923). 106 See, e.g., Prince, 321 U.S. at 166.

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of . . . family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.”107 Cases involving medical care for children are pertinent insofar as they address the parents’ decision making rights. When ex­ amined in light of the traditional respect for parental choices, the fetal rights cases and proposals seem strikingly anomalous. When parents make decisions for their child’s medical care, there is a strong presumption that they are acting in their child’s best interests:

The law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experi­ ence, and capacity for judgment required for making life’s difficult decisions. More important, historically it has rec­ ognized that natural bonds of affection lead parents to act in the best interests of their children.108

Although courts will generally authorize the immediate, lifesaving treatment of children over parental objections,109they only reluc­ tantly invade “the very heart of a family circle!,] . . . the most private and most precious responsibility vested in the parents for the care and nurture of their children.” 110 Parents’ treatment de­ cisions in non-emergency or therapeutic contexts are likely to be honored.111 Where there are conflicts over the proposed course of treatment, parents have been allowed to provide recognized alternative forms of care.112 107 Cleveland Bd. ofEduc. v. LaFleur, 414 U.S. 632, 639-40 (1974). ■“ Parham v. J. R., 442 U.S. 584,602 (1979). See In re L. H. R., 253 Ga. 439,445,321 S.E.2d 716,722 (1984); Halderman v. Pennhurst State School & Hosp., 707 F.2d 702,707 (3d Cir. 1983). 109 Bowen v. Am. Hosp. Assoc., 106 S. Ct. 2101 (1986) (rule requiring treatment of handicapped infants over parental objections held invalid); Custody of a Minor, 375 Mass. 733, 379 N.E.2d 1053 (1978). 110 Weber v. Stony Brook Hosp., 60 N.Y.2d 208, 469 N.Y.S.2d 63, 456 N.E.2d 1186 (Ct. App. 1983) (court rebuffs effort of stranger to veto parents’ choice of medical treatment for severely ill newborn). 1,1 F. R ozovsky, Consent to T reatment: A P ractical Guide , § 5.16.2, at 316 (1984) (citing In re Seiferth, 309 N.Y. 80, 127 N.E.2d 820 (Ct. App. 1955)); In re Green, 448 Pa. 338, 292 A.2d 387 (1972). 112 In re Hofbauer, 47 N.Y.2d 648,419 N.Y.S.2d 936, 393 N.E.2d 1009 (Ct. App. 1979) (parents allowed to choose alternative treatment for child with Hodgkin’s disease when experts differ over best treatment).

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Given that the proposals for forced treatment or physical re­ straint of pregnant women are more drastically intrusive into the familial relationship and immediately personal to the woman her­ self, there should be even greater judicial reluctance to override pregnant women’s choices. In sum, the pregnant woman has the fundamental right to shape her conduct and medical care in light of her judgment and con­ science, to set and determine the boundaries of her self-giving, to refuse subordination to another, and to be free of unconsensual bodily invasion. Her rights need give way only before legitimate and compelling state interests, and, even then, only so far a? those are vindicated in ways calculated to be least intrusive upon the fundamental interests at stake.

HI. THE FE TA L RIGHTS ARGUM ENT The state’s interests in the potential life of the fetus rest on a faulty interpretation of the case law which would license uncon­ stitutionally sweeping and intrusive government action. Fetal rights advocates maintain that the viability “line” established in R o e marks the point at which society may allow fetal rights to override even the “protectable interests of fully mature mem­ bers.”113 Some fetal rights theoreticians use R o e 's viability “line” as an element in a waiver argument, urging that “[o]nce [the woman] decides to forgo [sic] abortion and the state chooses to protect the fetus, the woman loses the liberty to act in ways that would adversely affect the fetus.” " 4 The argument contains two elements. First, as discussed, proponents measure the pregnant woman’s right by the R o e viability “line” and apply the R o e balancing test to allow governmental regulation of pregnant women under the auspices of “state interest.” " 5 Second, they 113 King, supra note 22, at 1678. 1.4 Robertson, Procreative Liberty, supra note 12, at 437. In fact, “[t]he mother’s duties to protect the fetus from harm also increase because she has foregone her right to choose abortion.” Shaw, supra note 8, at 88. 1.5 Prof. King would impose Roe's viability analysis retrospectively, maintaining that the common law requirement for live birth was based, not on the fetus’ physical separation from the woman, but upon its capacity for independent existence. Under this interpre­ tation, new understanding of or actual changes in fetal viability would require a reassess­ ment of fetal status.

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misread certain organ transplant**116 and blood transfusion cases to create an affirmative duty to rescue.117 Even within the terms of the fetal rights advocates’ construction of the constitutional balancing test, they fail to substantiate a state interest in potential fetal life sufficient to outweigh the rights of the woman.

IV. R O E : THE MISINTERPRETATION OF ITS COM PELLING STATE INTEREST Just as they have relied upon R o e to delineate the pregnant woman’s rights vis-à-vis the fetus, the fetal rights proponents also rely upon R o e as setting out the state’s interest in potential life. Although there are variations in the precise formulation, fetal rights theorists assume R o e 's holding— that a state may assert a compelling interest in the potential life of the fetus at viability in order to bar elective abortions— licenses a similar override of the woman’s interests in all other contexts.118 This assumption also underlies cases permitting coerced medical treatment during preg­ nancy or birth.119

King’s attempt to explain the historical rationale for the birth requirement as sheerly biological requires a simplistic reading of the infanticide cases in which the common law rule developed. Id. at 1659. Such an explanation confuses the courts* imposition of detailed requirements for proof of the alleged victim’s independent circulation or respir­ ation (a product of judges’ often tortuous efforts to avoid imposing the severe punishments required by conviction for homicide) with the significance of the indicia themselves. Prof. King would also insist that viability be defined, not by the individual medical determination mandated by the Supreme Court in Colautti v. Franklin, 439 U.S. 379 (1979), but by a rebuttable presumption based on gestational age at the “earliest point at which there has been verified fetal survival.’’ King, supra note 22, at 1679. For “objectivity and ease of administration,’*id. at 1681, the viability point—*subject to change over time—should be set by a national body. Id. at 1679. The law should “err on the safe side” by setting a date two weeks earlier than the “youngest fetus known to have survived.” Id. at 1680. “Survived” is nowhere defined either by duration or morbidity. It is unclear whether King’s definition would include momentary survival or encompass survival requiring complete life support systems. Despite the concern over Justice O’Con­ nor’s dissent in City o f Akron that medical advances would cause Roe's viability line to collapse, the realities of fetal viability are much the same as they were in 1973. See Paltrow, A Review o f Advances in Reproductive and Neonatal Technology as they Relate to Abortion Rights, 1 R eproductive R ights L. Rptr. 1 (1986). 1.6 See supra notes 83-98. 1.7 See infra notes 132-142 and accompanying text. 1.8 Robertson, Procreative Liberty, supra note 12, at 437; Shaw, supra note 8, at 88. 1.9 Jefferson, 247 Ga. at 87, 274 S.E. 2d at 458.

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For example, in J efferso n v. G riffin S p a ld in g C o u n ty H o s p . A u th o rity , the Georgia Superior Court’ s decision to authorize the doctors’ proposed Caesarean section over the pregnant woman’ s objections relied upon three factors: that the fetus was viable;120 that aborting it would be a criminal offense under Georgia law;121 and the court’s interpretation of R o e giving a viable fetus “the right under the U.S. Constitution to the protection of the State through such statutes prohibiting the arbitrary termination of the life of an unborn fetus.”122 In an earlier Colorado juvenile court order,123 also described by fetal rights proponents as having been grounded on both R o e 's viability “line” and the organ transplant and blood transfusion cases,124 hospital attorneys contended that “[t]he state has a com-

120 Jefferson, 247 Ga. 86, 274 S.E.2d 457. According to the Supreme Court’s account of the Superior Court’s findings, Mrs. Jefferson, then in her 39th week of pregnancy, had been examined by hospital doctors and diagnosed as having a placenta previa, a condition in which the placenta blocks the birth canal. The doctors informed Jefferson that the condition required that she give birth by Caesarean section. The Department of Human Resources petitioned the Butts County Juvenile Court for an order mandating a Caesarean. Based on the doctors’ testimony that an attempt at vaginal delivery would create a “99 to 100 percent certainty that the unborn child [would] die” and a “50 percent chance that Mrs. Jefferson herself [would] die,” id., the juvenile court took jurisdiction over the fetus, ordered the defendant to submit to a sonogram» and, contingent on the sonogram’s indication that the placenta was blocking the birth canal, ordered the defendant to submit to a Caesarean section. Id. at 88-89, 274 S.E.2d at 459-60. The Georgia Supreme Court, in its per curiam opinion denying the defendant’s motion for stay, cited Roe; Raleigh Fitkin-Paul Morgan Memorial Hosp. v. Anderson, 42 N.J. 421, 201 A.2d 537, cert, denied, 377 U.S. 985 (1964) (ordering blood transfusions to a non-consenting pregnant woman); Strunk, 445 S.W.2d 145 (authorizing a kidney donation by an incompetent). 247 Ga. at 89, 274 S.E.2d at 460. «> Id. (citing Ga . Code Ann . §§ 26-1201, 26-1202 (1980)). « 247 Ga. at 87, 274 S.E.2d at 458. 123 A woman in labor who was showing signs of possible fetal distress arrived at a Denver hospital. Although the woman was apprehensive of surgery, doctors proposed a Caesarean section. A hospital psychiatrist examined the patient and reported that she was competent to make a decision on surgery. The woman refused the surgery, and the hospital attorneys decided to seek a court order mandating the treatment. In a bedside hearing, a Denver Juvenile Court judge declared the child dependent and neglected and ordered the Caesarean section to be perfomed, citing the Colorado Children’s Code allowing orders of treatment when it is in the best interests of a child. Bowes & Selgestad, supra note 16, at 209-11 (citing Colo. R ev . Stat . § 19-1-104(3) (1973)). 124 While no written opinion accompanied the order, a subsequent memorandum of law filed by hospital attorneys “in support of” the judge’s order outlines the arguments presented. Bowes & Selgestad, supra note 16, at 209. Hospital attorneys urged reliance on the 1964 New Jersey pregnant woman blood transfusion case, Raleigh, 42 N.J. 421, 201 A.2d 537, later cited by the Georgia court in Jefferson, 247 Ga. at 89, 274 S.E.2d at 460; a minor’s blood transfusion case, Hoener v. Bertinato, 67 N.J. Super. 517,171 A.2d 140 (Juv. & Dorn. Rel. Ct. 1961); and Georgetown,

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pelling interest to protect the unborn in light of R o e and D o e v, B o lto n ,” 125 and “it is also proper, even necessary, for the health professionals involved to assert the same interest.”126 Both of these decisions ignore the choice component in the term “health” as it relates to the psychological and emotional well-being of the woman. Fetal rights advocates also attempt to justify state interests by imposing an affirmative duty to rescue on pregnant women. In the fetal rights view, the general legal rule that individuals have no duty to rescue no longer applies to pregnant women; it yields to a new formulation under which a woman who “has chosen to lend her body to bring the child into the world” assumes a unique and much more expansive duty.127 “[I]f the well-being of the potential child is at stake, she loses her autonomy, and her body may be invaded and treated for the child’s sake.”128 She has “a duty to assure that the fetus is bom as healthy as possible.”129 Courts and commentators asserting such a duty claim support from court authorizations of organ donations by minors and in­ competents.130That reading, however, does violence to the trans­ plant cases which stand instead for the courts’ efforts to honor the proposed donors’ wishes and protect their well-being.131 In addition, fetal rights proponents cite decisions ordering blood transfusions for Jehovah’s W itnesses—usually R a le ig h F itkin -P au l M o rg a n M e m o ria l H o s p . v. A n d e rso n 132 and In re P res331 F.2d 1000. The memorandum also cited two cases in which courts had authorized kidney donations to siblings by incompetents as authority for the proposition that surgery on one individual for the benefit of another is permissible. Hart, 29 Conn. Supp. 368,289 A.2d 386; and Strunk, 445 S.W.2d 145. Bowes & Selgestad, supra note 16, at 213. 125 Bowes & Selgestad, supra note 16, at 212. ■* Id. at 213. 127 Robertson, Procreative Liberty, supra note 12, at 456. Robertson struggles to cir­ cumvent the glaring gender discrimination by calling for legislation authorizing courtordered blood, bone and tissue donations from parents of both sexes. Id., n.166. He cites Hart, Strunk, cases involving vaccination and forced feeding, and the asserted state interest in protecting innocent third parties to argue that courts might compel such donations from parent to child if necessary to preserve the child’s life. Robertson, The Right to Procreate, supra note 7, at 351-53. Interestingly enough, though, Robertson balks at the notion of imposing specific performance upon surrogate mothers v/ho change their minds. Robertson, Procreative Liberty, supra note 12, at 461. 138 Robertson, Procreative Liberty, supra note 12, at 463. 129 Robertson, The Right to Procreate, supra note 7, at 352. 130Jefferson, 247 Ga. at 89, 274 S.E.2d at 460; Bowes & Selgestad, supra note 16, at 212. 131 See supra notes 83-98 and accompanying text. 132 42 N.J. 421, 201 A.2d 537 (cited in Bowes & Selgestad, supra note 16, at 232).

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ident o f G eorgetow n C ollege, In c .m—as precedent for state in­

terests in the fetus. But these cases, while oft-cited, provide scant precedential authority for the prenatal interventions at issue. De­ cided in 1964, neither case reflects the current emphasis on re­ spect for individual self-determination and bodily integrity in the area of medical decision making. Both R aleigh and G eorgetow n involved hospitalized Jehovah W itnesses who refused blood transfusions on religious grounds. Court-ordered medical treatment in such a context seems to have appeared to the judge as an acceptable vehicle for both honoring the patient’s religious scruples and saving her life.534 G eorgetow n is often cited as authority for the proposition that judges may order medical treatment in the interests of innocent third parties or dependent minor children,1 13 431 5 but the case is really better understood as turning upon the religious character o f the patient’s refusal and the patient’s competence to make that decision.136 Whatever vitality these cases retain in the context of blood transfusions, they provide little insight in the context of the more 133 331 F.2d 1000 (cited in Bowes & Selgestad, supra note 16, at 212; and in Jurow & Paul, supra note 16, at 598). 134 331 F.2d at 1007 (“I asked her whether she would oppose the blood transfusion if the court allowed it. She indicated, as best I could make out, that it would not then be her responsibility.”); see In re Estate of Brooks, 32 111. 2d 361, 369,205 N.E.2d 435, 440 (1965), which distinguishes Georgetown on the basis that the woman in that case had minor children requiring her care; see also In re Conroy, 98 N.J. at 354, 486 A.2d at 1226, which thus interprets Georgetown; and United States v. George, 239 F. Supp. 752, 753 (D. Conn. 1965), which suggests a similar willingness by the patient to undergo a transfusion if the decision is the court’s. 135 See, e.g., Sacks & Koppes, Blood Transfusion and Jehovah’s Witnesses: Medical and Legal Issues in Obstetrics and Gynecology, 154 Am . J. Obstet. Gynecol. 483, 485 (1986). 136 Judge Wright stressed that “her religion merely prevented her consent to a transfu­ sion . . . . Thus, the effect of the order was to preserve for Mrs. Jones the life she wanted without sacrifice of her religious beliefs.” 331 F.2d at 1009. Close analysis of subsequent treatment refusal cases also belies the notion that third party interests are determinative. Cases collected in Randolph v. City of New York, Supreme Court-Manhattan Trial Term, N.Y.L.J., Oct. 12, 1984, at 6, col. 4 (doctor not liable for honoring patient’s refusal, but may be liable for deviation from standard of care if unconsented to treatment begins), imply that reliance on the allegedly compelling state interest in innocent third parties or dependent children has been largely pro forma. A number of opinions recite such an interest, but almost all of them do so in order to stress the nonexistence of such a concern in the case at hand and cite that distinction as the basis for failing to follow the cases in which judges order the refused procedure. See, e.g., In re Melideo, 88 Misc. 2d 974, 975, 390 N.Y.S.2d 523, 524 (Sup. Ct. 1976); In re Estate o f Brooks, 32 111. 2d at 372-73,205 N.E.2d at 442. In some treatment refusal cases in which there are minor children, judges honor the refusal anyway. See also In re Osborne, 294 A.2d 372 (D.C. 1972).

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significantly intrusive, risky, and painful procedures of Caesarean sections and other pregnancy-related procedures.137 In R aleigh,

137 Michelle Harrison gives a poignant description of the surgical procedure: The surgeon takes a scalpel from the nurse and with one strong and definite motion creates a crescent-shaped incision along the woman's pubic hairline. As the skin is cut, the subcutaneous tissue bulges upward as though it had been straining to get through all the time. Within moments this fatty tissue, interconnected by thin transparent fibers, becomes dotted and then covered with blood that oozes out of tiny vessels. With scalpel and forceps—delicate tweezers—the surgeon cuts deeper beneath the subcutaneous tissue, to a thick layer of fibrous tissue that holds the abdominal organs and muscles of the abdominal wall in place. Once reached, this fibrous layer is incised and cut along the lines of the original surface incision while the muscles adhering to this tissue are scraped off and pushed out of the way. The uterus is now visible under the peritoneum, a layer of thin tissue, looking like Saran Wrap, which covers most of the internal organs and which, when inflamed, produces peritonitis. The peritoneum is lifted away from the uterus and an incision is made in it, leaving the uterus and bladder easily accessible. The bladder is peeled away from the uterus, for the baby will be taken out through an incision in the uterus underneath where the bladder usually lies. . . . The uterus of the pregnant woman is large, smooth and glistening. Shaped like a huge pear, the top and sides are thick and muscular, the lower end thin and flexible . . . . The obstetrician extends the initial cut either by putting two index fingers into the small incision and ripping the uterus open or by using blunt-ended scissors and cutting in two directions away from the initial incision. If the membranes are still intact, they are now punctured by toothed forceps, and the fluid spills out onto the table. In the normal position, the baby's head is down and under the incision, so the obstetrician places one hand inside the uterus, under the baby's head, and with the other hand exerts pressure on the upper end of the uterus to push the baby through the abdominal incision. The assistant also uses force now to help push the baby out . . . . The rest of the surgery is more difficult for the woman. There is more pain and women often vomit and complain of difficult breathing as we handle their organs and repair the damage . . . . The placenta separates from or is peeled off the inside of the uterus. Then, since the uterine attachments are all at the lower end, near the cervix, the body of the uterus can be brought out of the abdominal cavity and rested on the outside of the woman’s abdomen, thus adding both visibility and room in which to work. With large circular needles and thick thread a combination of running and indi­ vidual stitches is used to sew closed the hole in the uterus. A drug called pitocin is added to the woman’s IV to help the uterus contract and to decrease the bleeding. Small sutures are used to tie and retie bleeding blood vessels. The “gutters,” spaces in the abdominal cavity, are cleared of blood and fluid. The uterus is then placed back in the abdominal cavity. The bladder is sev/n back onto the surface of the uterus, and then finally the peritoneum is closed. Nov/ sponges are counted to be sure none have been left inside the abdominal cavity, and then the closure of the abdominal wall begins. Muscles overlying the peritoneum are pushed back in place, and are sometimes sewn with loose stitches. Fascia, the thick fibrous layer, is the most important one, since it holds all the abdominal organs inside and keeps them from coming through the incision, especially if the woman coughs or sneezes. Therefore this layer is closed with heavy thread and many individual stitches so that, even if a thread breaks, the stitches won’t all come out. The subcutaneous tissue, most of which

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Judge Wright emphasized that the G e o rg e to w n patient was “in ex trem is and hardly c o m p o s m e n tis at the time in question; she was as little able competently to decide for herself as any child would be.”138 Reliance on such authority in cases where the woman’s competency is unquestioned, such as the Colorado case,139 thus contains the implicit suggestion that nonconsenting pregnant women may, by virtue of their pregnancy, be equated with children and mental incompetents and denied decision mak­ ing rights.14014This logic may underlie the Colorado decision’s otherwise incomprehensible assertion that two cases authorizing kidney donations by incompetent or minor siblings, S tru n k 141 and H a r t,i42 support finding state interests compelling enough to over­ ride the wishes of a clearly competent, if recalcitrant, adult. N o state interest described by fetal rights advocates has enough force to override a woman’s fundamental rights of privacy, bodily in­ tegrity, and self-determination. V. THE “TREND” TOWARD FETAL RIGHTS A. T ortiou s a n d C rim in al In te rfe re n c e w ith P re g n a n c y Fetal rights advocates assert that the courts’ expansion o f causes of action for wrongful fetal death and for injuries sustained is fat, is closed in loose stitches that mainly close any air spaces which might become sites for infection. Skin, the final layer, is closed with either silk or nylon thread or metal staples . . . . A dry bandage is placed over the woman’s incision and then taped to her skin. The drapes are removed. A baby has been bom. M. H arrison, A Woman in Residence, 81-84 (1982). 138 Georgetown, 331 F.2d at 1008. 139 Bowes & Selgestad, supra note 16, at 209. 140 Presiding Justice Hill’s concurrence in Jefferson, for example, cites In re Melideo as illustrative of this unexamined equation of pregnancy and motherhood with incompe­ tency. Ruling on a hospital’s petition for authority to perform a blood transfusion on a Jehovah’s Witness, the judge concluded that it was proper to honor the general rule that “every human being of adult years and sound mind has a right to determine what shall be done with his own body and cannot be subjected to medical treatment without his consent,” since “the patient is fully competent, is not pregnant, and has no children.” 88 Misc. 2d at 975, 390 N.Y.S.2d at 524 (citations omitted). In fact, the decision making rights even of formally adjudicated incompetents receive more judicial solicitude than those of pregnant or birthing women. See, e.g., People v. Medina, 705 P.2d 961 (Colo. 1985). 141 445 S.W.2d 145. 142 29 Conn. Supp. 368, 289 A.2d 386.

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in utero143 indicates a trend toward full legal status for the fetus. They maintain that the determinative issue in such cases has been the fetus’ biologically independent existence. In this view, the courts have replaced the traditional birth requirement for tortious liability with a new viability “line” that recognizes the fetus’ genetic individuality144 and its possible capacity for survival be­ fore full term delivery.145 The assertion that a theory of biological separability underlies the judicial relaxation of the earlier harsh ban against recovery for fetal death or prenatal injuries146ignores the influence of policy considerations of compensation and deterrence.147 There is an explicit trend by courts and commentators alike toward acknowl­ edgment that these decisions are geared toward compensation for the prospective parents’ lo ss.148 Courts have conditioned recov­ ery for prenatal torts upon live birth, so that the right to recover runs not to a fetus but to a bom, independent person.149

B . The R ig h t o f M ea n in g fu l C h oice

Individual rights o f reproductive choice provide a more ana­ lytically satsifying way to conceptualize recovery for prenatal torts and wrongful fetal death cases.150 These cases protect re143 Robertson, Procreative Liberty, supra note 12, at 439-42; Shaw, supra note 8, at 95-104; King, supra note 22, at 1660-62. 144 King, supra note 22, at 1660. 145 Id. at 1661; Robertson, Procreative Liberty, supra note 12, at 441-42. 146 In Dietrich v. City of Northampton, 138 Mass. 14 (1884), Justice Holmes barred recovery for a negligently-caused stillbirth on the basis that the fetus was part of the woman’s body rather than a separate legal personality at the time the injury occurred. The more recent majority trend has followed Bonbrest v. Kotz, 65 F. Supp. 138 (D.D.C. 1946) (held that a viable fetus should be recognized as a separate legal entity with an individual cause of action for prenatal tort that vested upon live birth). 147 W. K eeton , D. D obbs, R. Keeton & D. Owen , P rosser and K eeton on T orts § 55, at 379-80 (W. Keeton ed. 5th ed. 1984). ,4i Dunn v. Roseway, 333 N.W.2d 830 (Iowa 1983); Pilpel, The Collateral Legal Con­ sequences o f Adopting a Constitutional Amendment on Abortion, 5 F am. Planning/ P opulation R ep . 44, 47 (1976). 149 Pilpel, supra note 148, at 47. 150 Statutory and doctrinal development involving pregnancy and childbirth are difficult, not only because of the current antagonism over women’s rights, but also because human experience of these realities is so varied. The same individual or family may, at different

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productive choice by establishing a duty on prospective parents, within a forseeable ambit of risk, not to tortiously interfere with their reproductive capacity, a vital aspect of their health. Suits brought by children for prenatal injuries or by parents under wrongful death statutes are often the only way to vindicate those rights since reproductive injuries often manifest themselves in the children of those affected well after the parents themselves are permitted to sue.151 This approach not only reconciles the tort and feticide cases with the abortion right, but it also protects the complementary right to parent implicit in R o e itself.152 Thus invocations of the prenatal tort and fetal death cases as a basis for licensing physical invasions or imposing harsh re­ straints on pregnant women are inappropriate. Those cases stand for the safeguarding, not the elimination, of rights of reproductive choice. The woman’s insulation from civil and criminal liability derives more from the meaning and geography of pregnancy itself than from dependence on any doctrine of parental immunity.153 The pregnant woman necessarily has a different set of rights in relationship to the fetus than do others, different even from312* points in their lives, experience pregnancy as a carefully planned and joyously assumed task or as an accident. Decision making in such an arena is intensely personal. For some, the attempt to impose one’s own reproductive choices rather than deferring to God’s will or to “Natural Law” is seen as deeply violative of religious obligations and sensibilities; for others, the failure to make deliberate decisions about such weighty matters represents a profound spiritual or ethical offense. Each of these deeply held, intensely personal positions de­ serves constitutional respect and protection. Precisely because it is impossible to make smooth assumptions and generalizations about the legal import of reproductive events, the most useful conceptualization of the protectable interest at stake in the pregnancy and childbirth area is that of meaningful choice, the right to information and decision making itself. See B.W. H arrison, supra note 23, 40-41. 151 “The right to recover the often crushing burden of extraordinary expenses visited by an act of medical malpractice should not depend on the ‘wholly fortuituous [sic] circumstance of whether the parents are available to sue.’” Procanik v. Cillo, 97 N.J. 339, 352, 478 A.2d 755,762 (quoting Turpin v. Sortini, 31 Cal. 3d 320, 328, 643 P.2d 954, 965, 182 Cal. Rptr. 337, 348 (1982)). 132 See Right to Choose v. Byrne: Brief Amicus Curiae, 7 Women ’s Rts . L. Rep . 285, 293-96 (1982). 133 Advocates of civil liability for maternal “prenatal negligence” cite the erosion of the parental immunity doctrine as support for their postition. See> e.g,, Robertson, Procrea­ tive Liberty, supra note 12, at 439-42; Note, Parental Liability fo r Prenatal Injury, 14 Colum . J. of L. & Soc. Problems 47, 60-72 (1978); Note, Recovery for Prenatal Injuries: The Right o f a Child Against Its Mother, 10 Suffolk U. L. R ev. 582, 591-95 (1976). The notion that the pregnant woman’s liability to suit can be viewed as merely coextensive with that of the parents of bom children is far-fetched, requiring again that we ignore the very dramatic physical distinction created by pregnancy itself.

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that o f the man by whom she became pregnant.154 In the tort context, as with abortion, geography matters.155

C. L eg a l S tatu s o f the F etus R o e 's observation that United States law has never treated the

unborn as persons in the legal sense156 remains true today. While there have been several, highly publicized cases157 to the con­ trary, the overwhelming majority of United States courts follow the common law principle that the criminally-caused death of a fetus is not homicide unless there has been a live birth—that is, an existence, however momentary, independent of the mother.158 Deviations from this “born alive” rule159 have not proved persua­ sive to high courts of other jurisdictions and are subject to criticism.160 In cases involving prenatal torts, the right of recovery runs, not to a fetus, but to a born person suffering injuries that require compensation.161 Judicial recognition o f wrongful death claims 154 Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 71 (1976). 155

The abortion issue involves the resolution of the mother’s rights as against the child’s when the two are in conflict. Whatever may be the determination of the rights in that context, this special relation gives a third-party tortfeasor no com­ parable rights. Torts—Wrongful Death, supra note 5, at 746-47. 156Roe, 410 U.S. at 157-58, 162. 137 See, e.g., Fetus Ruled a *Person*in Auto Death Cases: *We*re Just Thrilled*—ProLifers, Boston Herald, Aug. 17, 1984, at 2. 138 See, e.g., State of Minnesota v. Soto, 378 N.W.2d 625 (Minn. 1985). 139 The “born alive’*rule emerged out of judges* attempts to forestall murder convictions in cases of stillbirth, or to avoid imposing harsh penalties in cases in which women had acted out of great emotional and physical distress. See P. H offer & N. H ull , Mur­ dering Mothers: I nfanticide in E ngland and N ew E ngland—1558-1803, at 6591 (1981). , 242-24«

The literature on how disability affects family life is, to be sure, replete with dis­ cussions o f stress; anger at unsupportive members o f the helping professions; dis­ tress caused by hostility from extended family, neighbors, and strangers; and frustra­ tion that many disability-related expenses are not covered by health insurance.44' 51 And it is a literature that increasingly tries to distinguish why—under what conditions— some families o f disabled children founder and others thrive. Contrary to the beliefs still

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much abroad in medicine, bioethics, and public health, recent literature does not suggest that, on balance, families raising children who have disabilities experience more stress and disruption than any other family.52

Implications for Professional Practice Reporting in 1997 on a 5-year study of how families affected by cystic fibrosis and sickle cell anemia viewed genetic testing technologies, Duster and Beeson learned to their surprise that the closer the relationship between the family member and the affected individual, the more uncomfortable the fam­ ily member was with the technology. [The] closer people are to som eone with genetic disease the more problematic and usually unacceptable genetic testing is as a strategy for dealing with the issues.. . . The e x p e rie n c e o f em o tio n a l c lo s e n e s s to someone with a genetic disease reduces, rather than increases, the acceptability o f selective abortion. A close relationship with an affected person appears to make it more difficult to evaluate the m eaning or worth o f that person’s existence solely in term s o f th e ir g en e tic d isease . F am ily m embers consistently affirm the value o f the person’s life in spite o f the disorders, and see value fo r th e ir fam ily in th eir experiences with (and) o f this member, and in m e e tin g the ch a lle n g e s the d ise a se poses.55(p4,)

This finding is consistent with other reports that parents of children with disabili­ ties generally reject the idea o f prenatal test­ ing and abortion of subsequent fetuses, even if those fetuses are found to carry the same disabling trait.54,55 Professionals charged with developing technologies, offering tests, and interpreting results should assess their current assump­ tions and practice on the basis of the literature on disability and family life generally and data about how such families perceive selec­ tive abortion. O f the many implications o f such data, the first is that familiarity with dis­ ability as one characteristic o f a child one loves changes the meaning o f disability for parents contemplating a subsequent birth. The disability, instead of being the child’s sole, or most salient, characteristic, becomes only one o f the child’s characteristics, along with appearance, aptitudes, temperament, interests, and quirks. The typical woman or couple dis­ cussing prenatal testing and possible preg­ nancy termination knows very little about the conditions for which testing is available, much less what these conditions might mean for the daily life of the child and the family. People who do not already have a child with a

disability and who are contemplating prenatal testing must learn considerably more than the names o f some typical impairments and the odds of their child’s having one. To provide ethical and responsible clini­ cal care for anyone concerned about repro­ duction, professionals themselves must know far more than they now do about life with dis­ ability; they must convey more information, and different information, than they now typ­ ically provide. Shown a film about the lives o f families raising children with Down syn­ drome, nurses and genetic counselors— but not parents—described the film as unrealistic and too positive a portrayal o f family life.56 Whether the clinician is a genetics profes­ sional or (as is increasingly the case) an obstetrician promoting prenatal diagnosis as routine care for pregnant women, the tone, timing, and content of the counseling process cry out for drastic overhaul. Many discussions of genetic counseling suggest that counselors (even graduates o f master’s-level genetic counseling programs, who now provide a minority o f the informa­ tion that surrounds the testing process and the decisions following results) are ill equipped by their own training and norms o f practice to provide any insights into disability in today’s society. Most graduate programs in genetic counseling do not include courses in the social implications of life with disability for children and families; do not include contact between counselor trainees and disabled chil­ dren and adults outside clinical settings; and do not expose counselors to the laws, disabil­ ity rights organizations, and peer support groups that constitute what is described as the disability rights and independent living movement. Often, if providers seek a “con­ sumer” perspective on genetic issues, they consult the Alliance o f Genetic Support Groups. This organization, however, has focused on genetic research and cure and has not concentrated on improving life for people with genetic disabilities; it is not currently allied in activity or ideology with the disabled community and the social paradigm o f dis­ ability. Reviews of medical school curricula suggest that medical students do not receive formal instruction on life with disability, which would remind them that the people with dis­ abilities they see in their offices have lives outside those offices. Until their own education is revamped, obstetricians, midwives, nurses, and genetics professionals cannot properly counsel pros­ pective parents. With broader exposure them­ selves, they would be far more likely to engage in discussions with their patients that would avoid problems such as those noted by Lippmann and Wilfond in a survey o f genetic counselors. These researchers found that

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counselors provided far more positive infor­ mation about Down syndrome and cystic fibrosis to parents already raising children diagnosed with those conditions than they did to prospective parents deciding whether to continue pregnancies in which the fetus had been found to have the condition. At the least, we must recognize that every description of a genetic disorder is a story that contains a message. The story is the vehicle through which complex and volumi­ nous information is reduced for the purposes o f co m m unication betw een health-care provider and health-care seeker. The message is shaped as the storyteller selects what to include and what to exclude to reduce the amount o f information.. . . Should we strive to tell the same story to families considering carrier testing and prenatal diagnosis and to families who receive a postnatal diagnosis? . . . Is telling the same story required if we are to provide sufficiently balanced inform­ ation to allow potential parents to make fully informed family-planning decisions?57

Lippman and Wilfond question the dis­ parity in information provided; I call for change to ensure that everyone obtaining testing or seeking information about genetic or prenatally diagnosable disability receives sufficient information about predictable dif­ ficulties, supports, and life events associated with a disabling condition to enable them to consider how a child’s disability would fit into their own hopes for parenthood. Such information for all prospective parents should include, at a minimum, a detailed description of the biological, cognitive, or psychological impairments associated with specific disabil­ ities, and what those impairments imply for day-to-day functioning; a discussion o f the laws governing education, entitlements to family support services, access to buildings and transportation, and financial assistance to disabled children and their families; and liter­ ature by family members of disabled children and by disabled people themselves: If prenatal testing indicates a disabling condition in the fetus, the following disabil­ ity-specific information should be^given to the prospective parents: information about services to benefit children with specific dis­ abilities in a particular area, and about which of these a child and family are likely to need immediately after birth; contact information for a parent-group representative; and contact information for a member o f a disability rights group or independent living center. In addition, the parents should be offered a visit with both a child and family and an adult liv­ ing with the diagnosed disability. Although some prospective parents will reject some or all o f this information and these contacts, responsible practice that is concerned with genuine informed decision making and true reproductive choice must

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include access to this information, timed so that prospective parents can assimilate gen­ eral ideas about life with disability before testing and obtain particular disability­ relevant information if they discover that their fetus carries a disabling trait. These ideas may appear unrealistic or unfeasible, but a growing number o f diverse voices sup­ port similar versions o f these reforms to encourage wise decision making. Statements by Little People o f America, the National Down Syndrome Congress, the National Institutes o f Health workshop, and the Hast­ ings Center Project on Prenatal Testing for Genetic Disability all urge versions o f these changes in the process o f helping people make childbearing decisions. 1 These proposals may be startling in the context o f counseling for genetically trans­ mitted or prenatally diagnosable disability, but they resonate with the recent discussion about childbearing for women infected with the HTV virus: The primary task o f the provider would be to engage the client in a meaningful discussion o f the implications of having a child and o f not having a child for herself, for the client’s family and for the child who would be bom. . . . Providers would assist clients in examining w hat c h ild b e a rin g m eans to them . . . . Providers also would assist clients in gaining an understanding o f the factual information relevant to decisions about childbearing . . . however, the conversation would cover a range o f topics that go far beyond what can be understood as the relevant medical facts, and th e d ire c tio n o f th e co n v e rsa tio n would vary depending on each person’s life circ u m sta n ces and p rio rities [em phasis added].6**45^

This counseling process for women with HIV who are considering motherhood demonstrates that information in itself is not sufficient. As Mary White, Arthur Caplan, and other commentators on genetic counsel­ ing have noted, the norm o f nondirective­ ness, even when followed, may leave people who are seeking help with difficult decisions feeling bewildered and abandoned 63,64 A long with others who have expressed growing concern about needed reforms in the conduct o f prenatal testing and counsel­ ing, I urge a serious conversation between prospective parents and clinicians about what the parents seek in childrearing and how a disabling condition in general or a specific type o f impairment would affect their hopes and expectations for the rewards o f parenthood. For some people, any mobil­ ity, sensory, cognitive, or health impairment may indeed lead to disappointment o f par­ ental hopes; for others, it may be far easier to imagine incorporating disability into family life without believing that the rest o f their lives will be blighted.

Ideally, such discussions will include mention o f the fact that every child inevitably differs from parental dreams, and that suc­ cessful parenting requires a mix o f shaping and influencing children and ruefully appre­ ciating the ways they pick and choose from what parents offer, som etim es rejecting tastes, activities, or values dear to the parents. If prospective parents cannot envision appre­ ciating the child who will depart in particular, known ways from the parents’ fantasy, are they truly ready to raise would-be athletes when they hate sports, classical violinists when they delight in the Grateful Dead? Test­ ing and abortion guarantee little about the child and the life parents create and nurture, and all parents and children will be harmed by inflated notions o f what parenting in an age o f genetic knowledge can bring in terms of fulfilled expectations. Public health professionals must do more than they have been doing to change the climate in which prenatal tests are offered. Think about what people would say if prena­ tal clinics contained pamphlets telling poor women or African American women that they should consider refraining from child­ bearing because their children could be simi­ larly poor and could endure discrimination or because they could be less healthy and more likely to find themselves imprisoned than members o f the middle class or than Whites. Public health is committed to ending such inequities, not to endorsing them, tolerating them, or asking prospective parents to live with them. Yet the current promotion of pre­ natal testing condones just such an approach to life with disability. Practitioners and policymakers can increase women’s and couples’ reproductive choice through testing and counseling, and they can expend energy and resources on changing the society in which families con­ sider raising disabled children. If families that include children with disabilities now spend more money and ingenuity on afterschool care for those children because they are denied entrance into existing programs attended by their peers and siblings,55 public health can join with others to ensure that existing programs include all children. The principle o f education for all, which is reforming public education for disabled children, must spread to incorporate those same children into the network o f services and supports that parents count on for other children. Such programs, like other institu­ tions, must change to fit the people who exist in the world, not claim that some peo­ ple should not exist because society is not prepared for them. We can fight to reform insurance practices that deny reimburse­ ment for diabetes test strips; special diets for

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474 Public Health Matters people with disabilities; household modifi­ cations that give disabled children freedom to explore their environment; and modifica­ tions o f equipment, games, and toys that enable disabled children to participate in activities comparable to those o f their peers. Public health can fight to end the catch-22 that removes subsidies for life-sustaining personal assistance services once disabled people enter the workforce, a policy that acts as a powerful disincentive to productiv­ ity and needlessly perpetuates poverty and dependence. Laws such as the Individuals with Dis­ abilities Education Act and the Americans with Disabilities Act chart a course o f inclu­ sion for disabled people o f all ages. In 1980, Gliedman and Roth, who pioneered the development o f the minority-group paradigm that infuses much of the critique o f current genetic technology, wrote a blueprint for the inclusive society that public health should strive to create: Suppose that somewhere in the world an advanced industrial society genuinely res­ p e c te d the needs and the hum anity o f handicapped people. W hat would a visitor from this country make o f the position o f the disabled individual in American life? . . . To beg in w ith, the trav e ler would take for granted that a market o f millions o f children and tens o f m illions o f adults would not be ignored. He would assum e that many industries catered to the special needs o f the handicapped. Some of these needs would be purely medical . . . but many would not be m edical. The visitor would expect to find industries producing everyday household and domestic appliances designed for the use of people with poor motor coordination.. . . He would anticipate a prolusion o f specialized and sometimes quite simple gadgets designed to enhance control of a handicapped person over his physical world— special hand tools, office supplies, can openers, eating utensils, and the like.. . . As he examined our newspapers, m ag­ azines, journals and books, as he watched our movies, television shows, and went to our theaters, he would look for many reports about handicap,. . . cartoon figures on children’s TV programs, and many characters in child­ ren’s stories who are handicapped. He would expect constantly to come across advertise­ m ents aim ed at handicapped people. He w ould expect to find m any handicapped people appearing in advertisem ents not specifically aimed at them. The traveler would explore our factories, believing that handicapped people were employed in proportion to their vast numbers. . . . He would walk the streets o f our towns and cities. And everyw here he w ent he would expect to see m ultitudes o f handi­ capped people going about their business, taking a holiday, passing an hour with ablebodied or handicapped friends, or simply being alone----He would explore our manmade environ­ ment, anticipating that provision was made for the handicapped in our cities and towns.

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. . . He would expect the tiniest minutiae o f our dwellings to reflect the vast numbers o f disabled people----He would assume that disabled individuals had their share o f elected and appointive offices. He would expect to find that the role played by the disabled as a special interest group at the local and national levels was fully com m ensurate w ith their great numben5.«0,,-,s>

Despite the strides o f the past few decades, our current society is far from the ideal de­ scribed by Gliedman and Roth, an ideal toward which the disability community strives. Medi­ cine, bioethics, and public health can put their efforts toward promoting such a society; with such efforts, disability could become nearly as easy to incorporate into die familial and social landscape as the other differences these pro­ fessions respect and affirm as ordinary parts of the human condition. Given that more than 50 million people in the US population have disabling traits and that prenatal tests may become increasingly available to detect more o f them, we are confronting the fact that tests may soon be available for characteristics that we have until now considered inevitable facts of human life, such as heart disease. In order to make testing and selecting for or against disability consonant with improving life for those who will inevitably be born with or acquire disabilities, our clini­ cal and policy establishments must commu­ nicate that it is as acceptable to live with a disability as it is to live without one and that society will support and appreciate everyone with the inevitable variety o f traits. We can assure prospective parents that they and their future child will be welcomed whether or not the child has a disability. If that professional message is conveyed, more prospective par­ ents may envision that their lives can be rewarding, whatever the characteristics o f the child they are raising. When our professions can envision such communication and the reality of incorporation and appreciation o f people with disabilities, prenatal technology can help people to make decisions without implying that only one decision is right. If the child with a disability is not a problem for the world, and the world is not a problem for the child, perhaps we can diminish our desire for prenatal testing and selective abortion and can comfortably welcome and support chil­ dren of all characteristics.

A c k n o w le d g m e n ts This article benefited from my involvement with the project on Prenatal Testing for Genetic Disability o f The H astings Center. M any thanks go to Betty Wolder Levin for giving me the opportunity to pre­ sent these views. Daniel Goldstein, Alison MacIn­ tyre, Lili Schwan-Rosenwald, M aggie Starr, Caro­ line Moon, Deborah Kent, Rosemary Agnew, Simone

Davion, andTaran Jeffries provided invaluable help in several phases of the work on this article under exceptionally difficult circumstances.

R e fe re n c e s 1. Wertz DC, Fletcher JC. Sex selection through prenatal diagnosis. In: Holmes HB, Purdy LM, eds. Feminist Perspectives in Medical Ethics. Bloomington: Indiana University Press; 1992: 240-253. 2. Schuklenk U, Stein E, Kerin J, Byne W. The ethics o f genetic research on sexual orientation. Hastings Center Rep. 1997;27(4):6—13. 3. M apping Our Genes. W ashington, DC: US Congress, Office of Technology Assessment; 1988. 4. Retsinas J. Impact o f prenatal technology on attitudes toward disabled infants. In: Wertz D. Research in the Sociology o f Healthcare. Westport, Conn: JAI Press; 1991:75-102. 5. Beaudet AL. Carrier screening for cystic fibro­ sis. Am J Hum Genet. 1990;47:603-605. 6. K upperm ann M, G o ld b erg JD, N ease RF, Washington AE. Who should be offered prena­ tal diagnosis? The thirty-five-year-old question. Am J Public Health. 1999;89:160-163. 7. Rothenberg KH, Thom pson EJ, eds. Women and Prenatal Testing: Facing the Challenges o f G enetic Technology. C olum bus: O hio State University Press; 1994. 8. Miringoff ML. The Social Costs o f Genetic Wel­ fare. New Brunswick, NJ: Rutgers University Press; 1991. 9. Hubbard R. The Politics o f Women's Biology. New Brunswick, NJ: Rutgers University Press; 1990:chap 12-14. 10. L ippm an A. P renatal g e n e tic te s tin g and screening: constructing needs and reinforcing inequities. Am J Law M ed. 1991; 1 7 (1 -2 ): 15-50. 11. Field MA. Killing “the handicapped”— before and after birth. Harvard Womens Law J. 1993; 16:79-138. 12. Fine M, Asch A. The question o f disability: no easy answ ers for the w o m en ’s m ovem ent. Reproductive Rights Newsletter. 1982;4(3): 19-20. 13. Minden S. Bom and unborn: the implications o f reproductive technologies for people with d isabilities. In: A rditti R, D uelli-K lein R, Mindin S, eds. Test-Tube Women: What Future fo r Motherhood? Boston, Mass: Pandora Press; 1984:298-312. 14. Finger, A. Past Due: Disability. Pregnancy and Birth. Seattle, Wash: Seal Press; 1987. 15. Kaplan D. Prenatal screening and diagnosis: the impact on persons with disabilities. In: Rothen­ berg KH, Thompson EJ, eds. Women and Pre­ natal Testing: Facing the Challenges o f Genetic Technology. Columbus: Ohio State University Press; 1994.49-61. 16. Asch A. Reproductive technology and disabil­ ity. In: Cohen S, Taub N. Reproductive Laws fo r the 1990s. Clifton, NJ: Humana Press; 1989: 69-124. 17. Asch A, G eller G. Fem inism , bioethics and genetics. In: Wolf S, ed. Feminism and B io­ ethics: Beyond Reproduction. New York, NY: Oxford University Press; 1996:318-350.

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Boorse C. Concepts of health. In: Van de Veer D, Regan T, eds. Health Care Ethics. Philadelphia, Pa: Temple University Press; 1987:359-393. Daniels NL. Just Health Care: Studies in Phi­ losophy and Health Policy. Cambridge, Eng­ land: Cambridge University Press; 1985. N ational Organization on D isability’s 1998 Harris Survey o f Americans With Disabilities. Available at: http://w w w .nod.org/press.htm l #poll. Accessed August 29, 1999. Schneider J, Conrad P. Having Epilepsy: The Experience and Control o f Illness. Philadelphia, Pa: Temple University Press; 1983. Brightman AJ. Ordinary Moments: The D is­ abled Experience. B altim ore, Md: Paul H. Brookes Publishing Co; 1984. Goffman E. Stigma: Notes on the Management o f Spoiled Identity. Englewood Cliffs, NJ: Pren­ tice-Hall; 1963. Gartner A, Joe T. Images o f the Disabled, Dis­ abling Images. New York, NY: Praeger; 1987. Hockenberry J. Moving Violations: War Zones, Wheelchairs, and D eclarations o f In depen­ dence. New York, NY: Hyperion; 1996. Russel M. Beyond Ramps: Disability at the End o f the Social Contract. Monroe, Me: Common Courage Press; 1998. Bickenbach JE. Physical Disability and Social Policy. Toronto, Ontario: University o f Toronto Press; 1993. Am ericans with Disabilities Act (Pub L No. 101-336,1990, § 2). Watson JD. President’s essay: genes and poli­ tics. A nnual R ep o rt C old Springs H arbor. 1996:1-20. Shaw MW. Presidential address: to be or not to be, that is the question. Am J Human Genetics. 1984;36:1-9. Feinberg J. The child’s right to an open future. In: Aiken W, LaFollette H, eds. Whose Child? Children s Rights, Parental Authority, and State Power. Totowa, NJ: Rowm an & L ittlefield; 1980:124-153. Green R. Prenatal autonomy and the obligation not to harm one’s child genetically. J Law Med Ethics. 1996;25( L):5—16. Davis DS. genetic dilem m as and the ch ild ’s right to an open future. H astings Cent Rep. 1997;27(2):7-15. Purdy L. Loving future people. In: Callahan J, ed. Reproduction, Ethics and the Law. Bloom­ ington: Indiana University Press; 1995:300-327. Ray C, West J. S ocial, sexual and personal implications o f paraplegia. Paraplegia. 1984; 22:75-86. Saiga! S, Feeny D, Rosenbaum P, Furlong W, Burrows E, Stoskopf B. Self-perceived health statu s and health-related q uality o f life o f extremely low-birth-weight infants at adoles­ cence. JAMA. 1996;276:453-459.

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37. Tyson JE, B royles RS. P rogress in asse ss­ ing th e lo n g -te rm o u tc o m e o f e x tre m e ly low -birth-w eight infants. JAM A. 1996;276: 492-493. 38. Turnbull HR, Turnbull AP, eds. Parents Speak Out: Then and Now. Columbus, Ohio: Charles E. Merrill Publishing Co; 1985. 39. Wertz DC, Fletcher JC. A critique o f some fem­ inist challenges to prenatal diagnosis. J Womens Health. 1993;2:173-188. 40. B otkin J. Fetal privacy and co nfidentiality. Hastings Cent Rep. I995;25(3):32-39. 41. Wright BA. Attitudes and the fundamental neg­ ative bias: conditions and correlates. In: Yuker HE, ed. Attitudes Toward Persons With Disabili­ ties. New York, NY: Springer, 1988:3-21. 42. W right BA. P hysical D isability: A P yschoS ocial Approach. New York, NY: H arper & Row; 1983. 43. Winner E. Gifted Children: Myths and Reali­ ties. New York, NY: Basic Books; 1996. 44. Massie R, Massie S. Journey. New York, NY: Alfred A. Knopf; 1975. 45. Berube M. Life As We Know It: A Father, a Fam­ ily and an Exceptional Child. New York, NY: Pantheon; 19%. 46. B eck M. E xp e ctin g A dam : A True S to ry o f Birth, Rebirth and Everyday Magic. New York, NY: Times Books/Random House; 1999. 47. Turnbull AP, Patterson JM, Behr SK, Murphy DL, Marquis JG, Blue-Banning J, eds. Cognitive Coping, Families, and Disability. Baltim ore, Md: Paul H. Brookes Publishing Co; 1993. 48. Taanila A, Kokkonen J, Jarvelin MK. The long­ term effects o f children’s early-onset disability on marital relationships. Dev M ed Child Neu­ rol. 1996;38:567-577. 49. Van Riper M, Ryff C, Pridham K. Parental and family well-being in families o f children with Down syndrome: a comparative study. Res Nurs Health. 1992;15:227-235. 50. Walker LS, Ford MB, Donald WD. Cystic Fibro­ sis and family stress: effects o f age and severity of illness. Pediatrics. 1987;79:239-246. 51. Lipsky DK. A parental perspective on stress and coping. Am J Orthopsychiatry. 1985;55: 614-617. 52. Ferguson P, Gartner A, Lipsky DK. Experience o f disabilities in families: a synthesis o f research and parent narratives. In Parens E, Asch A, eds. Prental Genetic Testing and the Disability Rights Critique. Washington, DC: Georgetown Univer­ sity Press. In press. 53. Duster T, Beeson D. Pathways and Barriers to G enetic T esting and Screening: M olecular Genetics Meets the "High R isk" Family. Final report. W ashington, DC: US Dept o f Energy; October 1997.

54. Wertz DC. How parents o f affected children view selective abortion. In: Holm es HB, ed. Issues in Reproductive Technology. New York, NY: New York University Press; 1992:161-189. 55. Evers-Kiebooms G, Denayer L, van den Berghe H. A child with cystic fibrosis, II: subsequent family planning decisions, reproduction and use o f prenatal diagnosis. C lin Genet. 1990;37: 207-215. 56. Cooley WC, Graham ES, M oeschler JB, Gra­ ham JM. R eactions o f m others and m edical professionals to a film about Down syndrome. Am J D is Child. 1990;144:1112-1116. 57. Lippman A, Wilfond B. Twice-told tales: stories about genetic disorders. Am J Human Genet. 1992;51:936-937. 58. Little People o f America, Position Statement on Genetic Discoveries in Dwarfism. Available at: http://www2.shore.net/~dkennedy/dwarfism_g enetics.html. Accessed September 3, 1999. 59. National Down Syndrome Congress. Position Statement on Prenatal Testing and Eugenics: Families' Rights and Needs. Prepared for and approved by the Professional Advisory Commit­ tee. August 1994. Available at: http://members. carol.net/~ndsc/eugenics.html. Accessed Sep­ tember 17, 1999. 60. Appendix: Reproductive genetic testing: impact on women. National Institutes o f Health work­ shop statement. In: Rothenberg KH, Thompson EJ, eds. Women and Prenatal Testing: Facing the Challenges o f Genetic Technology. Columbus: Ohio State University Press; 1994:295-300. 61. Parens E, Asch A. The disability rights critique o f prenatal genetic testing: reflections and rec­ om m endations. Hastings C ent Rep. 1999;29 (5, suppl):Sl-S22. 62. Faden RR, K ass N E, A c u ff KL, et al. HIV infection and childbearing: a proposal for pub­ lic policy and clinical practice. In: Faden R, Kass N, eds. H IV Aids and Childbearing: Pub­ lic Policy, Private Lives. New York, NY: Oxford University Press; 19%:447-461. 63. Caplan AL. Neutrality is not morality. In: Bar­ tels D, Leroy B, Caplan AL, eds. Prescribing Our Futures: Ethical Challenges in G enetic Counseling. New York, NY: Aldine De Gruyter, 1993. 64. White MT. Making responsible decisions: an interpretive ethic for genetic decisionmaking. Hastings Cent Rep. 1999;29:14-21. 65. Freedman RI, Lichfield L, Warfield ME. Bal­ ancing work and family: perspectives o f parents of the children with developmental disabilities. Fam Soc J Contemp Hum Serv. October 1995: 507-514. 66. Gliedman J, Roth W. The Unexpected Minority: Handicapped Children in America. New York, NY: Harcourt Brace Jovanovich; 1980.

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http://taylorandfra nci s.com

[23] Erik Parens and A drienne Asch

The D isability Rights Critique o f Prenatal Genetic Testing: Reflections and Recommendations

The international project to sequence the human genome was undertaken in the expectation that knowing the sequence will offer new ways to understand and treat disease and disability. If researchers can identify the sequences of genes that code for the body’s building blocks, then, it is hoped, they can identify and correct the sequences associated with disease and disability. Thus far, researchers have enjoyed only minimal success in using gene therapy to correct such conditions, and no researcher has yet even attem pted to use gene therapy to correct genetic impairm ents in a fetus. Rather, the discovery of abnormal or incorrect sequences has led primarily to the development of genetic tests that can reveal w hether a person, embryo, or (in the usual case) a fetus carries an abnormality or “m utation” associated with disease or disability. It is now possible to test for gene mutations associated with some 400 conditions, from those universally viewed as severe, such as Tay-Sachs, to those that many might describe as relatively minor, such as polydactyly (a trait involving an extra little finger). The num ber and variety of conditions for which tests are available grow almost daily.1 Today we test for one trait at a time. In the future, however, with advances in biochip technology, it will be possible to test simultaneously for as many traits as one would like. In principle, we will be able to test for any trait we wish that has been associated with any given allele. N ot only will the cost of such testing likely decrease as the diagnostic technology advances, but advances in the technology will make it possible to do the testing earlier in the pregnancy. One such technology will isolate the very small num ber of fetal cells that circulate in the m aternal blood. Insofar as these earlier tests will be perform ed on fetal cells obtained from the m other’s blood (rather than from the amniotic sac

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or chorionic villus) they will be noninvasive. Thus it will be possible to do many more tests, at once, and with less cost to the pregnant woman in time, inconvenience, risk, or dollars, than is now the case.2 As the ease of testing increases, so does the perception within both the medical and broader communities that prenatal testing is a logical extension of good prenatal care: the idea is that prenatal testing helps prospective parents have healthy babies. O n the one hand, this perception is quite reasonable. Though no researcher has yet even attem pted to correct a genetic im pairm ent with in-utero gene therapy, increasingly there are nongenetic approaches to such impairments. At the time of this writing, m ore than fifty fetuses have undergone in-utero surgery to repair neural tube impairments (myleomeningoceles).3 Moreover, negative (or reassuring) prenatal test results will reduce the anxiety felt by many prospective parents, and this in itself can be construed as part of good prenatal care. O n the other hand, as long as in-utero interven­ tions remain relatively rare, and as long as the num ber of people seeking prenatal genetic inform ation to prepare for the birth of a child with a disability remains small, prospective parents will use positive prenatal test results primarily as the basis of a decision to abort fetuses that carry mutations associated with disease an d /o r disability. Thus, there is a sense in which prenatal testing is not simply a logical extension of the idea of good prenatal care. Logical extension or no, using prenatal tests to prevent the birth of babies with disabilities seems to be self-evidently good to many people. Even if the testing will not help bring a healthy baby to term this time, it gives prospective parents a chance to try again to conceive. To others, however, prenatal testing looks rather different. If one thinks for even a m om ent about the history of our society’s treatm ent of people with disabilities, it is not difficult to appreciate why people identified with the disability rights movem ent might regard such testing as dangerous. For the m em bers of this movement, including people with and without disabilities and both issue-focused and disabilityfocused groups, living with disabling traits need not be detrim ental either to an individual’s prospects of leading a worthwhile life, or to the families in which they grow up, or to society at large. Although the movement has no one position on prenatal diagnosis, many adherents of the disability rights m ovement believe that public support for prenatal diagnosis and abortion based on disability contravenes the m ovem ent’s basic philosophy and goals.

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This docum ent, the product of two years of discussions by a diverse group drawn from within and outside the disability rights movement, sets out the context within which the disability critique of prenatal diagnosis and abortion is located, and then frames, elaborates, and considers possible responses to that critique. It finds two broad claims: simply put, that prenatal genetic testing followed by selective abortion is morally problem atic, and that it is driven by misinformation. The docum ent then explores the prospects for distinguishing between accept­ able and unacceptable testing and draws out of the ongoing debate recom m endations to guide professional providers of genetic testing through this difficult terrain.

The Context: W hat Frames the Discussion A H isto ry o f O u trig h t D iscrim ination A g a in st a n d U n exa m in ed A ttitu d e s a b o u t People w ith D isabilities We will not here review our nation’s record of pervasive and invidious discrimination, which is only partly ameliorated by the passage of laws like the Individuals with Disabilities Education Act (IDEA) and the Americans with Disabilities Act (ADA). The history of discrimination against people with disabilities, including episodes of infanticide and compulsory sterilization, is long, ugly, and well docum ented.4 If Americans agree on the morality of little else, they agree that discrimination, including discrimination against people with disabilities, is evil. And m ost of us tend to be confident that we do not participate in such evil. But that confidence is illusory. Even with such im portant steps as the passage of the ADA and IDEA, discrimination is far from over. People with disabilities are still often treated as inferior to nondisa­ bled people. As disability studies scholar Lennard Davis has pointed out, even the m ost educated of Americans, professors who make a living by w riting about the nature of discriminatory practices and who decry discrimination against women, people of color, and other m inori­ ties, leave their attitudes toward people with disabilities largely unexam­ ined. According to Davis, in the writings of these literary theorists, while “others” whose bodies are norm al become vivid, others whose bodies are abnormal remain invisible.5 O f course, it is not just practitioners of fashionable literary theory who sometimes harbor unexamined and discriminatory attitudes toward people with disabilities. The bioethics and medical literatures of the

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last decade also reveal misinformation and stereotypic thinking about what disability means for individuals, families, and society. Many clini­ cians and bioethicists take it for granted that health status is mostly responsible for the reduced life chances of people with a disability, largely ignoring the role of societal factors such as educational and employment discrimination. Furtherm ore, these clinicians and bioethi­ cists often discount data indicating that people with disabilities and their families do not view their lives in solely or even predominantly negative term s;6 instead, they may insist that such data reflect a denial of reality or an exceptional ability to cope with problem s.7 People who make policy concerning the dissemination of genetic information have reached a consensus that the purpose of prenatal testing is to enhance reproductive choice for women and families— not to decrease the num ber of children with disabilities who are born. Some have acknowledged, however, that there is a tension between the goals of enhancing reproductive choice and preventing the births of children who would have disabilities. W riting about screening programs for cystic fibrosis in the pages of the American Journal of Human Genetics, medical geneticist A. L. Beaudet observed: “Although some would argue that the success of the program should be judged solely by the effectiveness of the educational programs (that is, whether screenees understood the information), it is clear that prevention of CF is also, at some level, a measure of a screening program , since few would advocate expanding the substantial resources involved if very few families wish to avoid the disease.”8 Beaudet acknowledges that, in tension with the genetic professional’s stated goal of educating individuals (without any investment in the particular decision those individuals might reach), those who pay for such education do so in part with a view to reducing the num ber of— and costs associated with— children born with cys­ tic fibrosis. Indeed, the profession of genetic counseling is based on a deep com m itm ent to helping clients discover what course of action, upon reflection, is best for them. Some evidence suggests, however, that when disabilities are involved, both trained genetic counselors and others who deliver genetic information do not always live up to that commitment. A recent study designed to understand the experience of mothers who received a prenatal diagnosis of Down syndrome and chose to continue the pregnancy found problematic attitudes toward people with disabilities, evidenced in the way that medical professionals spoke to those prospective mothers. According to Helm, Miranda, and Chedd,

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one of the m others who received a diagnosis of Down syndrome reported the following exchange: Obstetrician: You have to move quickly. There is a doctor at [Hospital X] who does late-term abortions.

Mother: No, I told you Tm not going to have an abortion. Obstetrician: Talk to your husband. You might want to think about it .9

Because Helm, Miranda, and Chedd only provide this portion of a longer exchange, the rest of us cannot confidently interpret the exchange they report. Advising a patient to discuss a major life decision with her spouse is not prim a facie problematic, much less discriminatory. According to their interpretation, however, these words reveal the physician’s unwillingness or inability to respect this wom an’s already stated decision to continue the pregnancy with the fetus carrying a disabling trait. The reported exchange provides no evidence that this obstetrician understands the ways in which many families welcome and nourish— and are nourished by— children with Down syndrome. As research has shown, obstetricians may be m ore likely than genetic counselors to urge particular actions upon their patients.10 Helm, Mi­ randa, and Chedd’s study also reports, however, that some genetic counselors reacted negatively to wom en who intended to bear and raise children with Down syndrome. A woman who was told that the fetus she was carrying would have Down syndrome reported the following: “[The genetic counselor] treated m e as though I couldn’t accept this news, although I told her I could. She asked, ‘W hat are you going to say to people when they ask you how you could bring a child like this into the world?’ ”n To say nothing of this counselor’s failure to discuss the w om an’s decision w ithout judging it, her words suggest that she has not thought deeply about what disabilities mean for individuals who live with them and for their families. At least from what we learn of her from Helm, Miranda, and Chedd, she does not seem to appreciate that welcoming a child with Down syndrome into a family is not a decision that needs to be defended; she does not seem to appreciate that parental attitudes differ, that traits that m atter a great deal to one couple may seem inconsequential to another. Such exchanges are proba­ bly not rare exceptions; similar examples can be found in other discus­ sions of genetic counseling practices in the prenatal testing situation.12 It is im portant to rem em ber, however, that many genetic counselors and physicians work extrem ely hard to live up to the values of inform ed consent and nondirectiveness, and many of them are not only aware of

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but share the concerns voiced by the disability rights community. For example, at the New England Medical Center, women whose fetuses are diagnosed with Down syndrome are routinely scheduled to m eet with a pediatric medical geneticist and a nurse clinician who specializes in the care of pediatric genetic patients. These women are scheduled to m eet with pediatricians who specialize in genetics rather than obstetri­ cians because pediatric geneticists understand better how Down syn­ drom e influences the lives of children and their families. According to project m em ber Diana Bianchi, who practices at the New England Medical Center, every attem pt is made to introduce the pregnant woman and her partner to families who are raising infants, children, a n d /o r young adults with Down syndrome. She reports that in her practice, only 62 percent of women who discover they are carrying a fetus with Down syndrome decide to have abortions. That rate of abortion upon a positive finding is believed to be relatively low. Disability critics point to such facts to suggest that when prospective parents obtain m ore accurate information about what life with disability is like, many realize that parenting a child who has a disability can be as gratifying as parenting a child who does not. The disability critique proceeds from the view that discrimination results when people in one group fail to imagine that people in some “other” group lead lives as rich and complex as their own. The disability rights critics believe that everyone from literary theorists to bioethicists to obstetricians and genetic counselors are susceptible to such failures of imagination. Moreover, they think that the desire of prospective parents to avoid raising children with disabilities may depend on that same failure. A P lu ra lity o f D isabling Traits a n d a P lu ra lity o f A ttitu d e s tow ard P ren a ta l D iagnosis As one begins to reflect on the meaning of using prenatal diagnosis to detect disabling traits, it is im portant to notice that the class of “disabling traits” is exceedingly heterogeneous. Prenatal diagnosis can now detect conditions as different as Lesch-Nyhan syndrome and ectrodactyly (a trait involving a partial fusion of the bones of the fingers and toes). Further, not only are the traits heterogeneous, but so are percep­ tions of their significance an d /o r seriousness. Nancy Press’s research reveals that some generalizations can be made about what people take to be “serious”: for example, m others considering prenatal testing are most fearful of conditions like Lesch-Nyhan, which results in early and

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painful death.13 But as the infamous Bree Walker Lampley case indicates, there is debate about the seriousness of ectrodactyly. In 1991, Bree Walker Lampley, a television newswoman in Los Angeles who had ectrodactyly, discovered that the fetus she was carrying had the trait and, when asked, made it known that she had no interest in term inating for such a m inor trait; some suggested that it was “irresponsible” to bring a child into the world with such a serious tra it.14 Indeed, the research of Dorothy C. W ertz and colleagues suggests that even genetics professionals have very different ideas of what is and what is not “seri­ ous ”,s In one of W ertzs surveys, cleft lip/palate, neurofibromatosis, hereditary deafness, insulin-dependent diabetes, Huntington disease, cystic fibrosis, sickle cell anemia, Down syndrome, and manic depres­ sion were deemed serious by some professionals and not serious by others.16 A similar plurality of views exists within the disability community. Many groups representing people with disabilities, such as the National Down Syndrome Congress and Little People of America, have position statements affirming the value of life with disability for individuals and families.17 However, there is considerable nuance and disagreement among groups, and in fact within some groups. This complexity is suggested by attitudes within the membership of Little People of America. Many of those who live with achondroplasia are concerned that prenatal testing, which can identify heterozygotes (that is, fetuses that will develop into long-lived people with achondroplasia), will be used to obliterate the Little People of America community. In fact, some m em bers of that community might use the technology to select for the trait. Nevertheless, many couples who are heterozygous for achondroplasia would like to use prenatal testing to identify fetuses that are homozygous for the allele associated with achondroplasia. Homozy­ gous achondroplasia is a uniform ly fatal condition, and they would like to spare themselves the experience of bearing a child who will soon die. Adding to the complexity, discussions at the 1997 m eeting of the Society for Disability Studies made it clear that some people with disabilities would use prenatal testing to selectively abort a fetus with the trait they themselves carry— and some people who would not abort a fetus carrying their own disability might abort a fetus if it carried a trait incompatible with their own understanding of a life they want for themselves and their child. A similar diversity of views toward prenatal testing and abortion can be found among parents raising a child with a disability. Many such

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parents do not use prenatal diagnosis to determ ine whether their present fetus is affected.18 The reasons for this are no doubt many; to some, the trait has come to be unim portant or irrelevant. Some may refuse it on the ground that using the technology would say something hurtful to or about their existing child. O ther parents of children with disabilities decide to use these technologies. We point to the plurality of traits and attitudes toward testing not to suggest that the terrain is too complex to be amenable to policy response. N or do we think that public policy should be made by taking polls. The point is simply that people com m itted to ending discrimination and improving life for people who have disabilities are not monolithic on the prenatal testing issue, any m ore than all feminists are monolithic on a host of “w om en’s issues” or than m em bers of racial minorities are monolithic in their stance toward affirmative action or other practices that affect them. Such lack of unanimity does not negate the concerns that thoughtful people have brought to the attention of the bioethics and genetics communities. But a reasonable policy response must avoid simplifying the facts; it m ust take such complexities into account. H e a lth Care in a C hanging E nvironm ent Prenatal diagnosis has for the past few decades been offered by genetics specialists and some specially trained obstetricians or physicians in maternal-fetal medicine. Today prenatal diagnosis is often perform ed by obstetricians, who may or may not offer genetic counseling prior to performing a test. Obstetricians are expected to obtain consent for the diagnostic procedure, but there is debate among professionals about what constitutes sufficient consent for a procedure that will likely end with a pregnancy term ination if a condition is identified. Again, some studies suggest that in getting consent for testing, many obstetricians seem to be more directive than the ethic of board-certified genetic counselors perm its.19 Although genetic counseling can be perform ed by physicians, nurses, or social workers, typically it is perform ed by m aster’s degree-level professionals educated in genetic principles and short-term psychosocial counseling. A professional corps of around 1,500 genetic counselors has existed for a quarter century in the United States, about 50 percent of whom provide prenatal counseling full time; another 300 or so provide prenatal counseling part time. In some regions, trained subspecialists perform prenatal diagnosis after genetic counseling, but increasingly obstetricians perform prenatal testing with minimal pretest counseling.

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Board-certified genetic counselors emphasize the likelihood of car­ rying a fetus with a disabling trait based on the age and family history of the prospective parents. The counseling often includes discussion of how testing is perform ed, what it can detect (including descriptions of chromosomes and genes), and what the information may mean for an affected child. Currently, the ideal process entails an exploration of the prospective parents’ views about family and children, a discussion of available economic and social resources, and an exploration of any experience prospective parents may have of people who live with the conditions being tested for. Anecdotal evidence and the few studies that have evaluated prenatal counseling suggest, however, this sort of indepth discussion is rare.20 Most genetic counseling takes place (if it does) before an invasive test like amniocentesis. The presum ption is that m ost people who attend prenatal counseling sessions will choose to undergo testing. Those who decline testing are typically not challenged by the counselor on that decision— although the setting lends itself to the assumption that individ­ uals are there to get tests rather than to make decisions about w hether to get tested. O ften patients have been referred by physicians and do not understand that prenatal testing is an option that, in light of their values, beliefs, and needs, they may not want to use. Unfortunately, a health care system that emphasizes cutting costs m ore than truly in­ formed decision making would likely encourage testing and discourage counseling. The latter is tim e consuming, not readily reimbursable by third-party payers, and can lead to fewer procedures and m ore births of children with costly medical needs. In the future, computer-assisted education technologies and videos should be very helpful in communicating inform ation— especially about predisposition or presym ptom atic testing— that once was communicated by counselors. But again, in a health care delivery system ever m ore intent on keeping down costs, things are likely to get worse rather than better when it comes to fostering the dialogue and the counselor-patient relationship that ideally accompany prenatal testing. Improved access to prenatal counseling will com pete with other demands on resources, and probably will lose out. It is likely, however, that the need for counselors who help people think through what to do with prenatal information will continue to grow. No one should rest easy with the hope that either alternative educational methods or alternative providers (physicians, nurses, or social workers) alone will be sufficient to m eet the need on the horizon.

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Reproductive L ib erty The proliferation of prenatal genetic testing has also occurred against the background of the controversy about abortion. Prenatal testing for genetic disability elicits unexpected responses from both sides of the abortion debate: many of those who are uneasy with abortion based on a prenatal finding of a disabling trait are pro-choice. And many who in general are against the right to abortion nonetheless approve of abortions perform ed on a fetus carrying a disabling trait. Virtually all the major work in the disability critique of prenatal testing emerges from those who are also com m itted to a pro-choice, feminist agenda: Adrienne Asch, Marsha Saxton, Anne Finger, and Deborah Kaplan, for example.21 O ther pro-choice feminists, including Ruth Hubbard, Abby Lippman, Carole Browner, and Nancy Press, draw on the disability critique to question the impact of prenatal testing.22 Like these scholars, our working group’s reflections proceed from the premise that women (and men) have the right to determ ine when and how many children they will have; within the first two trim esters of pregnancy, abortion is a legally and morally defensible means of exercis­ ing that right. W hat is new about prenatal testing is that it enables prospective parents to some extent to determ ine not only when and how many but also what kind of children they will have. W ith the exception of revealing the sex of the fetus, current prenatal testing is used to detect traits considered medically disabling— characteristics deemed undesirable de­ partures from species-typical functioning. In the future it may be increasingly possible to select for traits we do value. That, however, is not the possibility that has motivated the disability critique; the motivation for the disability critique is the reality of using prenatal testing and selective abortion to avoid bringing to term fetuses that carry disabling traits. Thus, the issue we examined concerns a special way of using abortion: namely, to select against disabling traits.

Understanding and Evaluating the D isability Rights Critique The disability rights critique of prenatal diagnosis and selective abortion advances three claims. Critics contend that: (1) Continuing, persistent, and pervasive discrimination constitutes the major problem o f having a disability for people them selves and for

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their families and communities. Rather than improving the medical or social situation of today’s or tomorrow’s disabled citizens, prenatal diagnosis reinforces the medical model that disability itself, not societal discrimina­ tion against people with disabilities, is the problem to be solved. (2) In rejecting an otherwise desired child because they believe that the child’s disability will diminish their parental experience, parents suggest that they are unwilling to accept any significant departure from the parental dreams that a child’s characteristics might occasion. (3) When prospective parents select against a fetus because of pre­ dicted disability, they are making an unfortunate, often misinformed decision that a disabled child will not fulfill what most people seek in child rearing, namely, “to give ourselves to a new being who starts out with the best we can give, and who will enrich us, gladden others, contribute to the world, and make us proud.”23 In these several contentions can be discerned two broad claims: that prenatal genetic testing followed by selective abortion is morally prob­ lematic, and that it is driven by m isinformation. P ren a ta l Testing Is M orally P roblem atic Selective abortion is morally problem atic, according to the disability critique, for two reasons. First, selective abortion expresses negative or discriminatory attitudes not merely about a disabling trait, but about those who carry it. Second, it signals an intolerance of diversity not merely in the society but in the family, and ultimately it could harm parental attitudes toward children. The expressivist argum ent. The argum ent that selective abortion expresses discriminatory attitudes has been called the expressivist argu­ m en t.24 Its central claim is that prenatal tests to select against disabling traits express a hurtful attitude about and send a hurtful message to people who live with those same traits. In the late 1980s, Adrienne Asch stated the concern this way: “Do not disparage the lives of existing and future disabled people by trying to screen for and prevent the birth of babies with their characteristics.”25 More recently, she has clarified what the hurtful or disparaging message is: As with discrimination more generally, with prenatal diagnosis, a single trait stands in for the whole, the trait obliterates the whole. With both discrimination and prenatal diagnosis, nobody finds out about the rest. The tests send the message that there’s no need to find out about the rest.26

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Indeed, many people with disabilities, who daily experience being seen past because of some single trait they bear, worry that prenatal testing repeats and reinforces that same tendency toward letting the part stand in for the whole. Prenatal testing seems to be m ore of the discriminatory same: a single trait stands in for the whole (potential) person. Knowledge of the single trait is enough to w arrant the abortion of an otherwise wanted fetus. On Asch’s m ore recent formulation, the test sends the hurtful message that people are reducible to a single, perceived-to-be-undesirable trait. This observation about letting the part stand in for the whole is surely enormously im portant. In everyday life, traits do often stand in for the whole, and people do get looked past because of them. Indeed, one form of the expressivist argument has been regarded rather highly in another context. Many people who are concerned about supporting w om ens rights have argued that prenatal sex selection is morally prob­ lematic because it embodies and reinforces discriminatory attitudes toward w om en.27 The sex trait is allowed to obliterate the whole, as if the parents were saying, “We don’t want to find out about ‘the rest’ of this fetus; we don’t want a girl.” Marsha Saxton has put the expressivist argument this way: The message at the heart o f widespread selective abortion on the basis o f prenatal diagnosis is the greatest insult: som e o f us are “too flawed” in our very D N A to exist; w e are unworthy o f being born. . . . [Fjighting for this issue, our right and worthiness to be born, is the fundamental challenge to disability oppression; it underpins our m ost basic claim to justice and equality— w e are indeed worthy o f being born, w orth the help and expense, and we know it!28

And as Nancy Press has argued, by developing and offering tests to detect some characteristics and not others, the professional community is expressing the view that some characteristics, but not all, w arrant the attention of prospective parents.29 For several reasons, however, there is disagreement about the m erit of the expressivist argument as a basis for any public policy regarding prenatal diagnosis of disability. Individual women and families have a host of motives and reasons for seeking out genetic information, and as James Lindemann Nelson and Eva Feder Kittay argue, it is impossible to conclude just what “message” is being sent by any one decision to obtain prenatal testing.30 Acts (and the messages they convey) rarely have either a single motivation or meaning.

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Some prospective parents no doubt have wholly negative attitudes toward what they imagine a life with a disability would be like for them and their child; others may believe that life could be rich for the child but suspect that their own lives would be compromised. O thers who have disabilities perhaps see passing on their disabling trait as passing on a p art of life that for them has been negative. Parents of one child with a disability may believe that they don’t have the emotional or financial resources for another. The point is that the meaning of prenatal testing for would-be parents is not clear or singular. In any case, those sympathetic to at least some forms of prenatal testing point out that prospective parents do not decide about testing to hurt existing disabled people but to im plem ent their own familial goals. In that sense, there is no “message” being sent at all. To many in the disability rights movement, however, regardless of the parental motive to avoid the birth of a child who will have a disability, the parent may still be letting a part stand in for the whole. That prospective parents do not intend to send a hurtful message does not speak to the fact that many people with disabilities receive such a message and are pained by it. A second criticism of the expressivist argument is that it calls into question the morality of virtually all abortions. The argument presumes that we can distinguish betw een aborting “any” fetus and a “particular” fetus that has a disability— what Adrienne Asch has called the “anyparticular distinction.” According to Asch, m ost abortions reflect a decision not to bring any fetus to term at this time; selective abortions involve a decision not to bring this particular fetus to term because of its traits. Pro-choice individuals within and outside the disability community agree that it is morally defensible for a woman to decide, for example, that she doesn’t want any child at a given time because she thinks she’s too young to m other well, or because it would thw art her life plan, or because she has all the children she wants to raise. The question is w hether that decision is morally different from a decision to abort an otherwise-wan ted fetus. But it is not clear that the distinction is adequate. Sometimes the decision to abort “any” fetus can be recast as a decision to abort a “particular” fetus. James Lindemann Nelson, for example, argues that if parents of three children chose to end a pregnancy that would have produced a fourth child, such parents would not be making a statem ent about the worthwhileness of other families with four children, or about the w orth of fourth-born children as human beings.31 Rather, they would

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be deciding what would be right for their particular situation. If, as Asch and others have argued, prenatal testing is morally suspect because it lets a trait stand in for the whole potential person, precisely the same argument would apply to aborting a fetus because it was the fourth child. The trait of being fourth-born makes the prospective parents ignore every other aspect in which that fetus could become a child that would be a blessing to its family and community. N elsons example of the potential fourth-born child suggests one reason to doubt the m erit of the any-particular distinction; he thinks that the disability critics have failed to explain why traits like being fourth-born could be a legitimate basis for an abortion while disabling traits could not. A third criticism of the expressivist argument is that it presumes selective abortion based on prenatal testing is morally problematic in a way that other means of preventing disability are not. Such other means include, for example, taking folic acid to reduce the likelihood of spina bifida or eschewing medication that is known to stunt the growth or harm the organs or limbs of a developing fetus. Such acts (or refraining from such acts) on the part of the pregnant woman are designed to protect the health of the developing fetus. Disability critics hold, however, that abortion does not protect the developing fetus from anything. It prevents disability by simply killing the fetus. Proponents of this disability critique hold a strong pro-choice position. Their objection is only to a certain way of using abortion. But those from the mainstream pro-choice community think of selective abortion in different term s. They do not see an im portant moral difference between selective abortion and other modes of preventing disability, in large part because they do see an im portant moral distinction between a born child with a disabling trait and an embryo or fetus with a disabling trait. They argue that parents of all born children have an obligation to love and care for those children— regardless of their traits. They also argue, however, that the pregnant woman and her partner are not “parents” before the child is born. Just as a woman or couple may decide during the first two trim esters of any pregnancy that becoming a parent to a first child, or to any child, is not in accord with their life plans, so may they make the same decision on the ground that the fetus has disabling traits. The woman may term inate the pregnancy and try again to become pregnant with a fetus that has not been identified as carrying a disabling trait. In this view, if it is reasonable to prevent disability in a developing child by adhering to a particular lifestyle, and taking specified medications or refraining from taking others, it is equally

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acceptable to opt for abortion to prevent the birth of a child with a significant disability.32 Even if expressivist arguments will not dissuade all people from using tests in making reproductive decisions for their own lives, policies that would in any way penalize those who continue pregnancies in spite of knowing that their child will live with a disabling trait must be avoided. Those prospective parents who either forego prenatal testing or decide that they want to continue a pregnancy despite the detection of a disabling trait should not have to contend with losing medical services or benefits for their child, nor feel obliged to justify their decisions. Further, the availability of prenatal testing in no way reduces our societal obligations to those people who are born with or acquire disabilities. Even if prenatal diagnosis says nothing to or about existing or future disabled people, we should as a society vigorously enforce antidiscrimination laws and improve services and supports for disabled people and their families. The p a re n ta l a ttitu d e a rg u m e n t. The second argument that prenatal testing is morally problematic we call the “parental attitude argument.” According to this argument, using prenatal tests to select against some traits indicates a problematic conception of and attitude toward parenthood. Part of the argument is that prenatal testing is rooted in a “fantasy and fallacy” that “parents can guarantee or create perfection” for their children.33 If parents were to understand what they really should seek in parenting, then they would see how relatively unim portant are the particular traits of their children. The parental attitude argument also involves the thought that in the context of prenatal testing, a part— a disability— stands in for the whole— a person. The prospective parent who wants to avoid raising a child with a diagnosable disability forgets that along with the disabling trait come other traits, many of which are likely to be as enjoyable, pride-giving, positive (and as problematic, annoying, and complicated) as any other child’s traits. If prospective parents imagine that disability precludes everything else that could be wonderful about the child, they are likely acting on misinformation and stereotypes. The prospective parent has made biology destiny in the way that critics of the medical model of disability consistently resist. According to the parental attitude argument, prospective parents should keep in mind that the disabling trait is only one of a fetus’s characteristics. The activity of appreciating and nurturing the particular

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child one has is what the critics of selection view as the essence of good parenting. Loving and nurturing a child entails appreciating, enjoy­ ing, and developing as best one can the characteristics of the child one has, not turning the child into someone she is not or lamenting what she is not. If we were to notice that it is a fantasy and fallacy to think that parents can guarantee or create perfection for their child, and if we were to recognize what is really im portant about the experience of parenting, we would see that we should be concerned with certain attitudes toward parenting, not with “disabling” traits in our children. Good parents will care about raising whatever child they receive and about the relationship they will develop, not about the traits the child bears. In short, what bothers those wary of prenatal diagnosis is what might be called “the selective mentality.” The attention to particular traits indicates a morally troubling conception of parenthood, a preoccu­ pation with what is trivial and an ignorance of what is profound. Those who connect acceptance of disability to what is desirable in any parent-child relationship will w orry that our attitudes toward parenthood and ultimately toward each other are changing as a result of technologies like prenatal diagnosis.34 Do these technologies lead us, one might ask, toward the commodification of children, toward thinking about them and treating them as products rather than as “gifts” or “ends in diemselves”? Is it making us as a society less resilient in the face of the inevitable risks that our children face, and less willing to acknowledge the essential fragility of our species? W hen m em bers of our project are confronted with, for example, sex selection or with the possibility of selecting for non-health-related traits like sexual orientation, concerns about the selective mentality come quickly to our lips. Indeed, those who want to reject the parental attitude argument in the context of disabling traits m ust recognize that they are criticizing an argument that they themselves may well want to use in the context of non-healthrelated traits. Certainly, many w orry about the cumulative effect of individual choices, about the technologization of reproduction, and about a decreasing cultural ability or willingness to accept the reality of uncontrollable events. These concerns trouble even those who profess to be comfortable with genetic testing and selective abortion. Nonetheless, many find significant problems with the parental atti­ tude argument. One of the m ost im portant is that it makes what William Ruddick calls the “maternalist assumption,” namely, that “a woman who wants a child should want any child she gets.”35 Ruddick acknowledges that many women do hold “m aternalist” conceptions of pregnancy and

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m otherhood, out of which that assumption grows. But he points out that there are other legitimate conceptions of pregnancy and m otherhood that do not depend on or give rise to the same assumption. He suggests that some prospective parents may legitimately adopt a “projectivist” or “fam iliar conception of parenthood, and that either of these views is compatible with trying to ensure that any child they raise has character­ istics that accord with these parental goals. In the projectivist parent’s understanding of child rearing, the child is a part of her parental projects, and, within limits, parents may legitimately undertake to ensure that a child starts out with the requisites for fulfilling these parental hopes and aims. Ruddick is not claiming that projectivist parents could ignore a child’s manifested com m itm ents to things beyond the parents’ life plans, but he is saying that, for example, the parent passionate about music may legitimately select against a future child whose deafness would make a love of some forms of music impossible. If a hearing child turns out to be tone deaf and enthusiastic about rock collecting and bird watching but not music, and if the parent views these activities as inimical to her parental values or projects, she need not support them , or (within limits) allow other people to do so. According to Ruddick, the “familial” conception of parenthood highlights a parent’s vision of her child as herself a parent or sibling— a participant in a nuclear and extended family that gives central meaning to life. For example, parents whose dreams of child rearing include envisioning their own child as a parent would be acting consistently with their conception of parenthood if they decided not to raise a boy with cystic fibrosis, whose sterility and shortened life span might pre­ clude either biological or adoptive parenthood. A child of such a parent might, of course, reject family life in favor of solitude or communal adult companionship, but in using available technology to avoid raising a child who would never be able to fulfill a deeply cherished parental dream, the parent is acting in accordance with a legitimate conception of parenthood. Although Ruddick is not alone in thinking that a selective mentality may be compatible with praiseworthy parenting, many share the disability com m unity’s w orry that prenatal testing threatens our attitudes toward children, parenthood, and ultimately ourselves. Certainly, it would be to the good if we thought m ore deeply about our attitudes. If we want to be parents, why do we want to be parents? W hat do we hope being parents will bring for our children-to-be and for ourselves? And prospective parents would benefit from grappling with those questions

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in the context of prenatal diagnosis. However, such concerns could not undergird specific policies regarding prenatal testing for disabling traits.

Prenatal Testing Is Based on Misinformation The second major claim of the disability critique is that prenatal testing depends on a misunderstanding of what life with disability is like for children with disabilities and their families. Connected with this claim is the question whether disability is one more form of “neutral” human variation, or whether it is different from variations usually thought of as nondisabling traits, such as eye color, skin color, or musicality. There are many widely accepted beliefs about what life with disability is like for children and their families. Most of these beliefs are not based on data. They include assumptions that people with disabilities lead lives of relentless agony and frustration and that most marriages break up under the strain of having a child with a disability. Recent studies suggest, for example, that many members of the health professions view childhood disability as predominantly negative for children and their families, in contrast to what research on the life satisfaction of people with disabilities and their families has actually shown.36 One strand of this project, then, involved wrestling with what to make of conflicting perceptions about how people with disabilities and their families experi­ ence life. Three disability researchers in the Hastings Center group— Philip M. Ferguson, Alan Gartner, and Dorothy K. Lipsky— analyzed empirical data on the impact of children with disabilities on families.37 Their review, surprising to many, concludes that the adaptational profiles of families that have a child with a disability basically resemble those of families that do not. According to Ferguson, Gartner, and Lipsky s reading of the data, families that include disabled children fare on average no better or worse than families in general. Some families founder, others flourish. Ferguson, Gartner, and Lipsky do not deny that families are often distressed upon first learning that their child has a disability. And they acknowledge that families with children who evince significantly chal­ lenging behavior experience more disruption than do other families. But recent research on raising a child with a disability offers happier news for families than many in our society have been led to expect. In the words of one leading family researcher, “The most recent literature suggests that families of children with handicaps [sic] exhibit variability

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comparable to the general population with respect to im portant out­ comes such as parent stress, . . . family functioning, . . . and marital satisfaction .”38 Studies of family adaptation have begun to recognize the prevalence of positive outcomes in many families .39 indeed, one recent study found that parents of disabled adolescents reported m ore posi­ tive perceptions of their children than do parents of nondisabled adolescents .40 In a 1995 study intended to learn how a child’s disability affected the work lives of dual-career families, the authors found that the needs and concerns of families with and w ithout children with disabilities were “strikingly similar.” They did, however, observe: W hat seem s to distinguish families o f children w ith disabilities from other working families is the intensity and com plexity o f the arrangements required to balance w ork and hom e responsibilities successfully. For exam ­ ple, parents o f children w ith disabilities, particularly those w ith serious m edical or behavioral problem s, find it m ore difficult to locate appropriate, affordable child care. . . . Similarly, these families are m ore dependent upon health insurance policies w ith com prehensive coverage.41

This same study reminds us of a point that both Ruddick and Kittay made: a child’s disability may sometimes alter the customary parentchild life cycle, in which parents gradually relinquish daily guidance and caretaking and— if they are fortunate— see their children take on adult productive and caretaking roles. Depending on the im pairm ent and on the social arrangements that parents help a growing child con­ struct, some people with disabilities may require their parents’ help through adulthood in securing shelter, social support, and safety. Increas­ ingly, adults with disabilities such as muscular dystrophy, spina bifida, cystic fibrosis, Down syndrome, and other conditions do not stay “eternal children,” as they were once thought to do. Nonetheless, some, albeit a small, portion of the population of disabled people will be more vulnerable for longer than others and m ore in need of what Kittay (borrowing from Sara Ruddick) described as “attentive, protective love .”42 Although it is im portant to demolish the myth that disability entails relentless agony for the child and family, there is still considerable disagreement about what conclusions to draw from the literature on the family impact of a child with disability. In the view of the disability community, this literature suggests that prenatal testing to select against disabling traits is misguided in the sense that it is based on misinforma-

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tion. That is, if prospective parents could see that families with children who have disabilities fare much better than the myth would have it, then parents would be less enthusiastic about the technology. However, recognizing that there are erroneous beliefs that need to be dispelled may not show that the desire for prenatal testing stems from misinformation alone. The first problem with the misinformation argument has to do with the difference between retrospective and prospective judgments. It is one tiling to look back on a stressful but ultimately rewarding experience and say, T m glad I did that.” It is another to look forward to the possibility of a stressful and perhaps ultimately rewarding experience and say, “I’m glad to give it a try.” To appreciate that many families respond well to stress does not commit one to thinking that it would be a mistake for families to try to avoid it. It may be true that, as one of the studies of working families points out, the concerns of working parents with disabled children very much resemble the concerns of any working parent— ensuring that children are safe, happy, stimulated, and well cared for at home, at school, and in after-school activities. But that study also acknowledges that working parents of children with special medical or behavioral needs find that meeting those needs takes m ore time, ingenuity, and energy than they think would have to be spent on the needs of nondisabled children. To appreciate that many families emerge stronger, wiser, and even better as a result of such an experience may not suggest that it is unreasonable or morally problematic to try to avert it. As Mary Ann Baily put it, child rearing is already like m ountain climbing. That I want to climb Mount Rainier doesn’t commit me to wanting to climb Everest. I appreciate that the rewards of climbing Everest might be extraordinary, beyond my wildest dreams, but I’d settle for Rainier.43 The disability researchers and theorists did not persuade everyone in the project group that raising a child with a disability is not more demanding than raising a child without this condition. As a specific type of life challenge, raising a child who has a disability may provide one individual of a particular aptitude or orientation with a life experience of great reward and fulfillment, perhaps with a positive transformation. For a different individual, who possesses a different character or aptitude, the overall experience may be negative. Parents may examine themselves and conclude that they are not choosing against a child’s specific traits; they may be making an honest and inform ed acceptance of their own character and goals .44

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D isa b ility in Society Perhaps the m ost fundamental and irreconcilable disagreement over the misinformation argum ent has to do with just what having a disability is “really” like for people themselves and for their families. Just how m uch of the problem of disability is socially constructed? Is it reasonable to say that in a differently constructed social environm ent, w hat are now disabling traits would becom e “neutral” characteristics? Undoubtedly, m ore of the problem of disability is socially con­ structed than many people generally believe. But does that imply that having a characteristic like cystic fibrosis or spina bifida is of no m ore consequence than being left-handed or being a man who is five feet, three inches tall? According to the disability rights critique of prenatal testing, if people with disabilities were fully integrated into society, then there would be no need for the testing. In the world they seek to create, if a given health status turned out to be a handicap, that would be because of societal, not personal, deficits; the appropriate response would be to change society so that the person could live a full life with a range of talents, capacities, and difficulties that exist for everyone. In a society that welcomed the disabled as well as the nondisabled, there would be no reason to prevent the births of people with traits now called disabling. In this project, those sympathetic to at least some forms of prenatal testing were struck by the fact that, for reasons that seem to be complex, m em bers of the disability com m unity speak at different times in different modes about the nature of disability. Sometimes, m em bers of that com m unity are clear about the fact that disabling traits have a “biological reality” or are not neutral. Adrienne Asch writes, “The inability to move w ithout mechanical aid, to see, to hear, or to learn is not inherently neutral. Disability itself limits some options.”45 At other times, how ­ ever— and this is the m ode usually emphasized in critiques of prenatal testing— those in the disability rights m ovem ent speak as if those traits indeed are inherently neutral. Thus, Deborah Kent writes: “I premised my life on the conviction that blindness was a neutral characteristic .,>46 In this other m ode, the disability community argument often is that, different from what prospective parents imagine, these so-called disa­ bling traits are not, to coin a term , “disvaluable” in themselves; they are disvaluable because of the way they are socially constructed. Nora Groce s w ork illustrates the point about how social arrange­ m ents shape w hether a characteristic is disabling.47 In M artha’s Vineyard

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in the nineteenth century, Groce argues, being unable to hear was not disabling because everyone spoke sign language. G roce’s work establishes that much of what is difficult about having a disability stems from manifold facets of society, from architecture to education to aesthetic preferences. In choosing how to construct our societies, we do, as Allen Buchanan puts it, “choose who will be disabled .”48 We could choose differently than we have, and if we were to choose differently, w hat’s disabling about what we now call disabilities would be largely eliminated. Plainly, then, the social constructionist argument is powerful. The objec­ tion concerns, rather, what appears to be a correlative claim of the disability position: that so-called disabling traits are neither disabling nor “disvaluable,” but neutral. Trying to delineate, understand, and come to consensus over this claim is perhaps the most contentious and difficult part of thinking about prenatal testing in the context of the disability critique. It is w orth restating what Asch, Saxton, Lipsky, and others define as the “neutrality” of disability. Adherents of the disability critique acknowledge that some characteristics now labeled disabilities are easier to incorporate into today’s society, or into a reconstructed society, than are others. Thus, no one would deny that disabling traits— departures from speciestypical functioning— foreclose some options, or that some disabilities foreclose m ore options than others. A child with Down syndrome may never climb Mount Rainier because his strength, agility, and stamina may preclude it; he may also never read philosophy because he does not have the skills to decipher abstract material. Granting that people who can climb mountains and read abstract papers derive enjoyment and meaning from such activities, then being foreclosed from them, not by one’s own choice, is regrettable. The lack of possibility is widely seen as disvaluable. In addition, these lacks of capacity stem from the characteristics of the individual who is not strong enough or agile enough to climb, or who is unable by any teaching now known to us to grasp complex abstract discourse. In that sense, disability community critics acknowledge that these facets of some disabilities are “real”— inherent in the characteristic itself— and not an artifact of any interaction with the environment. Even if all traits are to some extent “socially con­ structed,” that is irrelevant to the fact that the existence of these traits forecloses for those who have them the opportunity to engage in some highly desirable and valuable activities; not being able to engage in those activities is disvaluable.

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Disability community critics of the medical model of disability acknowledge that they would be going too far if they claimed that society should not value activities that some of its m em bers cannot engage in; it is harmless to value the capacity of sight that perm its people to behold R em brandt’s masterpieces, sunsets, or the faces of family m em bers and friends. It is not offensive to prize intellectual accomplishment, athletic prowess, or the ability to appreciate visual beauty, and to regret that not everyone we know can enjoy them . To the extent that spina bifida, Down syndrome, blindness, or cystic fibrosis currently preclude people from undertaking some parts of life that people who do not have those traits might experience, the disability critique acknowledges that disability puts some limits on the “open future ”49 people seek for themselves and their children. As Bonnie Steinbock argues, if we really thought disability “neutral,” we would not work as we do to maintain, restore, and prom ote health in ourselves and others. We use medicine in the hope that it will cure or ameliorate illness and disability. We urge pregnant women to refrain from activities that risk harming the fetus. If we thought that disabilities were “neutral,” then we could tell women who smoke or drink during pregnancy to rest easy, for developmental delay, low birth weight, and fetal alcohol syndrome would all be just “neutral variations,” of no consequence to the future child.so W hile disability community critics acknowledge that some disabili­ ties foreclose some opportunities, they also hold that calling attention to the foreclosure obscures two im portant points. The first is that rather than dwell on the extent to which opportunities to engage in some activities are truncated, we should concentrate on finding ways for people with disabilities to enjoy alternative modes of those same activities. Philip M. Ferguson puts it this way: The point is n ot so m uch whether . . . a blind person cannot enjoy a Rembrandt . . . but w hether social arrangements can be im agined that allow blind people to have intense aesthetic experiences. . . . People in wheelchairs may n ot be able to climb mountains, but how hard is it to create a society w here the barriers are rem oved to their experiences o f physical exhilaration? . . . Som eone w ith D ow n syndrome may not be able to experience the exquisite joy o f reading bioethics papers and debating ethical theory, but . . . that person can experience the joy of diinking hard about som ething and reflecting on what he or she really believes. . . . The challenge is to create the society that w ill allow as

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Part One: Overview and Context o f the Project many different paths as possible to the qualities o f life that make us all part o f the human com m unity.31

The second fundamental point is that rather than concentrate on the truncation or loss of some opportunities, our society generally— and prospective parents in particular— should concentrate on the nearly infinite range of remaining opportunities. Indeed, every life course necessarily closes off some opportunities in the pursuit of others. Thus, while the disability critics of prenatal diagnosis acknowledge that disabil­ ity is likely to entail some amount of physical, psychological, social, and economic hardship, they hold that when viewed alongside any other life, on balance, life is no worse for people who have disabilities than it is for people who do not. No parent should assume that disability ensures a worse life for a child, one with m ore suffering and less quality, than will be had by those children with whom she or he will grow up. The claim then is that overall, there is no m ore stress in raising a child with a disability than in raising any other child, even if at some times there is m ore stress, or different stress. In that sense, the disability community claims that disability is on balance neutral. Even here, however, many find that the term s “neutral” and “norm al” are either inaccurate characterizations of disability or are being used in confusing ways. Specifically, some worry that these term s are used sometimes only to describe or evaluate traits and at other times to describe or evaluate persons. E valuations o f Traits versus E valuations o f Persons As already m entioned, the disability community itself sometimes speaks about the descriptive and evaluative senses in which disabling traits are not neutral, not normal. Legislation like the ADA could not exist without recognition that in some sense disabling traits are neither neutral nor normal. Indeed, the societal provision of special resources and services to people with disabilities depends on noticing the descrip­ tive and evaluative senses in which disabling traits are not neutral, and how the needs of the people who live with them are, descriptively speaking, not normal. Yet the recognition of the obligation to provide those special resources is rooted in a com m itm ent to the fundamental idea that the people living with those traits are, morally speaking, “norm al”; the people bearing the traits are evaluatively norm al in the sense of deserving the norm al respect due equally to all persons. Unequal or special funding expresses a com m itm ent to m oral equality. Recogniz-

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ing the non-neutrality of the trait and the “ab-normality” of the person’s needs is necessary for expressing the com m itm ent to moral equality and equal opportunity. There is nothing paradoxical about appreciating the descriptive sense in which people with disabling traits are abnormal while also appreciating the evaluative or moral sense in which they are norm al. Some who are sympathetic to prenatal testing worry that people in the disability community (as well as others) often conflate descriptive claims about traits and evaluative or moral claims about persons, as for example when Deborah Kent, who is blind, writes: When I was growing up people called my parents “wonderful.” They were praised for raising me “like a normal child” As far as 1 could tell, they were like most of the other parents in my neighborhood, sometimes wonderful and sometimes very annoying. And from my point of view 1 wasn’t like a normal child— I was normal.52 W hat does Kent mean when she says that she “was norm al”? As a descriptive claim, it is not reasonable to say that the trait of blindness is norm al. Statistically speaking, it is not. Also, as an evaluative claim, insofar as the trait can make it impossible to enjoy some wonderful opportunities, it does not seem reasonable to say that the trait is neutral. The trait may indeed seem neutral and insignificant when viewed in the context of the whole person; but that is a claim about the person, not the trait. On the view of those sympathetic to testing, the descriptive and evaluative claims about the trait do not bear a necessary logical relation to evaluative claims about the person who bears it. As an evaluative or moral claim about the person, it makes perfect sense to say that a person who is blind is norm al; she is norm al in the sense that she deserves the norm al, usual, equal respect that all human be­ ings deserve. But if it is easy to notice the difference between the descriptive and evaluative claims about traits and the evaluative claims about persons, why do people in the disability community (and others) keep slipping between the two? Erik Parens suggests that there may be an im portant reason for this seemingly imprecise slipping. Discrimination against people with disabilities often involves a tendency to allow the part to stand in for the whole; Parens’s suggestion is that m embers of the disability community sometimes succumb to a similar, equally problem ­ atic error. The majority community sometimes uses the trait to deny the moral significance of the person; the disability community sometimes

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uses the moral significance of the person to deny the significance of the trait. The majority community slips from an observation about a trait to a claim about a person; the disability community slips from an observation about a person to a claim about a trait. At im portant m om ents, both groups fail to distinguish evaluations of traits from evaluations of persons. While such slippage may be easily com m itted in both communities, and particularly understandable on the part of die disability community, it may be equally counterproductive in both. In the end, for all of die project group s disagreements about the appropriateness of employing selective abortion to avoid raising a child with a so-called disabling trait, and about the aptness of the distinction between aborting any fetus versus aborting a particular fetus with a disability, at least these disagreements forced the group to grapple with what many think is disvaluable or undesirable about these traits. Albeit uneasily, the majority of the working group seems to think that disabling traits are disvaluable insofar as they constrain or limit some opportuni­ ties. To say diat a disability is disvaluable is only to say diat, in the world we now inhabit and in the world we can imagine living in any time soon, to have a given trait would make it impossible or very difficult to engage in some activities that most people would want themselves or their children to have the option of engaging in. For this reason, dien, the majority seems uneasily to think that traits are disvalu­ able insofar as they preclude what many find precious. This view was held “uneasily” because many are keenly aware of how limited our ability is to imagine alternative social constructions— as well as of the extent to which traits once thought unreconstructable are now thought to be nearly infinitely plastic. We are keenly aware of the extent to which the trait that is sex was constructed in the past in arbitrary and pernicious ways, as well as of past arguments that sex could not be constructed m uch differently. And we recognize how paltry our ability is to imagine what the experience of others is like. Few of us would have believed before the project meetings began that conjoined twins would report feeling about their lives pretty much like people with “norm al” bodies rep o rt feeling about theirs .53 It is im portant to rem em ber that the disability community arguments are not intended to justify wholesale restrictions on prenatal testing for genetic disability. Rather, they are intended to make prospective parents pause and think about what they are doing and to challenge professionals to help parents better examine their decisions. They are intended to help make our decisions thoughtful and inform ed, not thoughtless and

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automatic. In his book about his son who has Down syndrome, Michael Berube attem pts to steer a path much like the one ultimately adopted here. He writes: I’m . . . n ot sure w hether I can have any advice for prospective parents w ho are contem plating what course o f action to take w hen they discover they w ill bear a “disabled” child. O bviously I can’t and d o n ’t advocate abortion o f fetuses w ith D ow n syndrom e; indeed, the only argument I have is that such decisions should not be autom atic.s+

To some, the advice that such decisions shouldn’t be automatic may seem wishy-washy and disheartening. But to those who, like Hannah Arendt, think that evil can arise from thoughtlessness, it seems neither.

Recommendations to Professional Providers These reflections lead to a question that defied our efforts at consen­ sus: Is there a helpful and rational way to distinguish, in light of the needs and interests of families, between tests that providers should routinely offer and those they should not? From the beginning of this project, it was agreed that using tests for conditions like Tay-Sachs is reasonable. Families have a morally defensible interest in avoiding the stress and sorrow associated with having a child who has a uniformly fatal condition such as this. And at least in the beginning, many also agreed that it would be unreasonable for medical professionals to offer tests for non-health-related traits such as, say, eye color. Many agreed that medical resources should not be used to help individuals satisfy narcissism or gain advantage. Further, many agreed, at least initially, that whereas prenatal testing to avoid disability arguably is consistent with the goals of medicine, prenatal testing to produce advantage is not. As James Lindemann Nelson points out, just as m ost reject what might be called the unconditional demand to welcome the prospect of a child with Tay-Sachs, so m ost reject what might be called the unconditional demand for the so-called perfect child .55 A desire for what has no conditions or constraints seems to be at work in both, and in both seems unreasonable. If one thinks there are reasons to draw lines between reasonable and unreasonable tests, then the question becomes: How many and how clearly can and should such lines be drawn? Jeffrey R. Botkin has made one of the m ost sophisticated attem pts to draw lines .56 To undergird that attem pt, Botkin offers the general principle that when inquiring

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about the traits of the fetus, parents should be able to get information “designed to prevent harms to parents that are approximately the same magnitude as the harms of an unwanted pregnancy” (p. 36). The reason­ ing goes somediing like this: we assume that the prospective parent’s conception of the harm associated with an unwanted pregnancy is realistic and appropriate. And we recognize that beyond the abortion itself, no other scarce medical resources, such as prenatal testing and genetic counseling, are required. However, according to Botkin, we should worry that the prospective parent’s conception of the harm associated with some disabling traits is neither realistic nor appropriate. “The disappointment parents may feel [in circumstances where the condition is minor] is real, but disappointment from unrealistic or inappropriate expectations need not be considered a harm w orth p re­ venting” (p. 37). That is, we should develop criteria to help determ ine when the harm associated with a disabling trait is realistic and appropriate enough to warrant using m edicine’s resources to prevent it. Botkin offers four criteria to help distinguish conditions serious enough to warrant using those resources: the severity of condition, the age of onset, the probability that the genotype will manifest as disease, and the probability that the condition will occur in those without specific risk factors. For example, on Botkin’s account, conditions such as hemophilia, Down syndrome, cystic fibrosis, and muscular dystrophy produce enough harm or burden for the family to warrant the use of the resources and the act of abortion. Among the conditions that are not serious enough to w arrant the use and act are most cases of asthma (which can be effectively treated), Marfan syndrome (which has “limited impact on the life o f the child and family in term s of effort, time, and financial resources” [p. 38]), Huntington disease (since “adult onset conditions do not constitute a burden to parents on the same magnitude as an unwanted child” [p. 38]), and schizophrenia (where a genotype may be a necessary but not sufficient cause for the disease). Yet, however sophisticated Botkin’s attem pt may be to distinguish for policy purposes between serious and m inor disabling traits, at least two sorts of objection can be raised to any such attem pt. On the one hand, Dorothy W ertz’s research shows that even among genetics professionals, there is deep disagreement about what constitutes a “seri­ ous” genetic trait .57 In her view, therefore, Botkin’s first and arguably m ost im portant criterion w on’t work for public policy purposes. On the other hand, proponents of disability rights object to attem pting such precise distinctions, for several reasons. First, enlisting medical

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professionals to list the conditions approved for tests and exclude others as “not serious enough or burdensome enough” turns individual, private, parental decisions into socially supported ones. Also, it increases the likelihood that an explicitly devaluing message will be sent about people whose conditions are listed as “serious enough to avoid.” Indeed, disability critics are horrified at the thought of officially identifying “bad” and “less bad” disabilities. Such lines would pit some members of the disability community against others. Some m em bers of the community would end up on the right side of the tracks, others on the wrong. To convey that disability is one characteristic (a norm al, neutral form of human variation) the disability community may tolerate considerable parental autonomy to select against traits— in fact, more than it would like. In this project, at least, in rejecting the idea of drawing lines, m em bers of the disability community came to occupy a position quite like the one occupied by proponents of parental autonomy. Ultimately, this preference that the decision be parental, not medical, prevented a consensus about one form of line drawing. In the absence of a line between serious and minor disabling traits, perhaps there could be a line between disabling traits and other sorts of non-health-related traits. For example, would it work, as a public policy compromise, to say that it is reasonable for prospective parents to think carefully about testing for any traits that might be covered under the first part of the ADA, but unreasonable for them to test for traits that are not covered? The first or “functional” part of the definition would state that a disability is a physical or mental im pairm ent that substantially limits one or m ore of the major life activities of an individ­ ual. The strength of this possibility is that such traits are associated with stresses that families might reasonably attem pt to avoid. Thus, the distinction m ight be serviceable, in spite of the contestability of the phrases “substantially limits” and “major life activity.” Several features of this approach to determ ining the difference between reasonable and unreasonable tests are w orth noting. First, it allows the people who will bear the consequences of the decision (that is, the prospective parents) to determ ine what disabling traits are sufficiently serious to w arrant abortion. Second, it retains a clear connection between medical resources and health status. Third, it is not consistent with testing for non-health-related traits such as sex, sexual orientation, eye color, height, or similar traits. However, our working group did not reach a consensus that it would be reasonable to offer tests only for traits covered under the

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ADA, for roughly the same reasons that it resisted distinguishing among disabling traits of different severity. At least three reasons were given. First, those representing a disability rights perspective argue that while in the best of all possible worlds it perhaps would not be harmful to draw such a line, it would be in this world of rampant discrimination against people with disabilities. Unpersuaded by the critiques of the expressivist argument, and wanting to characterize disability as a form of human variation as acceptable as any other, they believe that drawing lines, whether among disabling traits or between disabling traits and nondisabling traits, will send a hurtful message to and about people with disabilities. Second, as explained by Dorothy Wertz, even if our group could reach consensus about how to draw such a line, what happens in practice will be determ ined by the desires of consumers and the decisions of health care delivery systems responding to those desires. Third, drawing a line between traits covered under the ADA and those not covered would be paternalistic; that is, doing so would be to make decisions for prospective parents that are rightly their own. Each of these arguments has problems. Objections to the expressivist argument were explored above. The chief objection to the second argument is that it is really not so much a moral case against drawing lines as a prediction that such lines would fail. While ethical analysis has to take account of the facts and imagine how they will change, the point of such analysis is not to predict the future but to describe how the future ought to be— how it would be if our practices were more rational and just. An adequate response to the argument from paternalism would require analyzing what is at stake in selecting for desired traits, since the argument is rooted in the thought that parents should be free to choose whatever traits will be beneficial for their children. But our project did not systematically take up what is at stake in selecting for traits; thus, a response to that argument would be out of place here .58 For many in the project group, the refusal to accept any line drawing was a frustrating and disappointing result— as it will be for others. It will be disappointing to many in the mainstream medical community who would like to admit some but not all kinds of prenatal testing. And it will be disappointing to many proponents of disability rights, who while worried about increasing societal control over the characteristics of children, know that failing to distinguish acceptable from unacceptable testing will probably lead to m ore testing, to more attempts to screen out all sorts of attributes, and possibly to increasing intolerance of

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diversity in the human population and devaluing of adaptability to the unexpected in life. Nonetheless, our project group could not reach a consensus about drawing lines between reasonable and unreasonable tests— nor did we have the opportunity to discuss alternatives to line drawing in the provision of prenatal diagnostic services. Clearly, additional discussion and research are needed to achieve a balance between competing visions of how best to use this technology in clinical care. W hen public policy­ makers explore these issues in the future, we hope they will benefit from knowing in advance just how deep the disagreement can be about the wisdom of “drawing lines” in this context. G enetic Counseling a n d E ducating People a bout D isabilities While this document is the record of disagreement over the substan­ tive question about what traits may reasonably be tested for, on the procedural question about how prenatal tests are ideally offered and how the results of such tests are ideally discussed, there is consider­ able agreement. Perhaps most im portant, in accordance with the ethic of genetic counseling, all genetics professionals must help prospective parents give truly informed consent to receive testing and equally must help patients reach truly informed decisions about how to use test results. Based on respect for persons, and as articulated in the National Society of Genetic Counselors Code of Ethics ,59 genetic counselors are com m itted to help­ ing individuals understand genetic information and act on that inform a­ tion in accordance with their own values. Respect for the equality of persons and for the legitimate heterogeneity of their life projects is arguably one of the most substantive values available to us. There are prenatal testing programs that help prospective parents gather information about what life is like for families with children who have disabilities. Such programs have begun to foster the sort of truly informed consent that the disability community is calling for and that the ethic of genetic counselors aspires to. Yet some evidence suggests that there are still physicians and genetic counselors who, for example, display surprise or distress upon hearing that a woman wants to bring to term a fetus identified as having a disability. If genetics professionals and obstetrical providers are to help individuals make truly informed decisions, then they, like everybody else in the “majority” community, must identify and overcome biases against people with disabilities.

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The first, crucial step in helping patients achieve truly inform ed consent and make truly informed decisions is to give providers access to good information about what disability is really like for children with disabilities and for their families. Education about life with disability— as people who live with disabilities view it— is still too rarely offered to those who deliver genetic information. Indeed, according to one recent survey, many recent graduates of genetic counseling programs rep o rt that they think genetic counseling programs should highlight such education more than they do now .60 Disability must become an im portant topic in the training of anyone who offers prenatal genetic tests, whether that person is a genetic counselor, medical geneticist, obstetrician, nurse, or some other health care professional. For those who desire to prom ote such education ,61 the resources are already available, and indeed some programs in genetic counseling and in medical genetics currently avail themselves of those resources. Increasingly, thanks to the work of people like Marsha Saxton ,62 genetic counselors receive education about disability and thus can help prospective parents receive the same, whether by visiting a family with a child who has the identified trait, by meeting adults with the trait, or by obtaining information produced by support groups for people with the trait. In addition to this general point, we can offer some specific advice about the opportunities for presenting disability-relevant information to parents. There are three junctures at which health care providers could offer such information. The first is before a prenatal screening test. Increasingly, pregnant women first encounter prenatal diagnosis in the office of their obstetrician-gynecologist via the offer of a screening test (for example, triple m arker screening for neural tube defects and Down syndrome or carrier testing for cystic fibrosis). Currently, prenatal screening is too often presented as a part of routine care, the purpose of which is purportedly to ensure the health of the baby, rather than as a test for potential disabilities that parents might choose to avoid. As m ore and more disabilities can be detected prenatally, perhaps all that is possible at this first, earliest juncture is for prospective parents to receive accurate information about the purposes of screening and brief but balanced information about the disabilities being tested for. Such a discussion, aided by well-prepared educational materials, need not take much time and could begin to help prospective parents ask die fundamental questions they should be asking: Why do I want a prenatal test? Do I understand what I think I am trying to prevent? W hat do I know about spina bifida, Down syndrome, or whatever? Will

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having a child with one of these conditions prevent me from gaining what I want in having a child? As new media are developed, particular attention should be paid to helping prospective parents grapple with those questions. A second educational opportunity is in genetic counseling prior to amniocentesis. This opportunity arises for those women who requested a prenatal screening test (such as the triple screen) and received a positive result, and for those women (generally older than thirty-five) who may be referred directly for amniocentesis. During this session, the provider discusses with the patient whether she wants to undergo this invasive procedure. The pretest sessions may not, however, be ideal times to explore what life with disability is like. Project m em ber Barbara Bowles Biesecker put it this way: To make an inform ed decision about prenatal testing, clients need to understand what can and cannot be detected and what their options are if a condition is found. They also need to have their questions addressed and, as Mary W hite suggests, to engage in a dialogue about their values and beliefs. However, frequently in a prenatal setting there is lim ited tim e to explore the meaning o f a life w ith disability. Further, m ost prospective parents defend them selves em otionally against the anxiety-provoking thought that a random , unlikely condition could affect their fetus. As this strategy for coping w ith the norm al anxiety o f pregnancy is healthy and largely unconscious, it may not be effective for counselors to challenge it. Parents may neither want nor be able to explore their fears about the future health o f their fetus; indeed, they may resent being asked to engage in such a threatening ex ercise.63

However, if there is a positive result on the amniocentesis, then a further, posttest session should occur— a third opportunity for counsel­ ing. About the feasibility of providing disability-relevant information in die post-test genetic counseling, there is not yet a consensus. Diana Bianchi observed during one project meeting that “the post-test genetic counseling session is the ideal time to educate someone about the nature of disability. Most of the several hundred couples carrying a fetus with a chromosome abnormality that I have been involved with over the past twelve years of my genetics practice have welcomed inform ation— the m ore, the better— prior to making any decisions .”64 Bianchi thinks that only the reality of a positive test result can make m ost people think hard about what it would mean to welcome a child with disabilities

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into their families. Others think, however, that the post-test session can be “an unteachable m om ent .”65 Many prospective parents will be sufficiently distressed by a positive test result that they will not be able to absorb new information about disability. As tests are perform ed earlier, it may be that more time will be available to think about the decision, and thus that there will be greater opportunity to get to a teachable m om ent. But for now, the time between receiving the test result and making the decision whether to abort is short— and fraught with anxiety for the woman or prospective parents, even those who find that they are able to learn. If and at whatever point in the process clients indicate they want information about disability, they should receive it. The question then is what they need. According to the Down Syndrome Congress, prospec­ tive parents who learn that their fetus has a disabling trait need to receive: “(a) information that seeks to dispel common misconceptions about disability and present disability from the perspective of a person with a disability; (b) information on community-based services for children with disabilities and their families as well as on financial assis­ tance programs; (c) materials on special needs adoption; and (d) a summary of major laws protecting the civil rights of persons with disabilities. [Also,] people with disabilities and parents of people with disabilities should be available to talk with future parents .”66 It is crucial that prospective parents are offered both information about disability and the opportunity to explore the values, desires, fears, and dreams that enter into deciding what to do with prenatal genetic information. Equally crucial is that, in accordance with the ethic of genetic counseling, professionals who make such offers honor both acceptances and refusals of those offers. As Nancy Press and Carole Browner have argued, the offer of prenatal genetic testing is not neutral ;67 in that context it means that the one who offers the test thinks that a reasonable person might go down the path of testing and selective abortion. Offering the post-test opportunity to explore information about disability, as well as the feelings and values that arise in the context of a positive test result, would convey that such exploration could be an im portant and w orth­ while activity. In particular it would mean that the one who does the offering thinks that a reasonable person might not go down the path of selective abortion— even though when she accepted the test she tentatively thought she would. Yet just as providers in a pretest context must, in accordance with the ethic of genetic counseling, respect the

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decisions of those who do not want to receive testing at all, so must they respect the decisions of those who do not want to receive post­ test counseling. We strongly support providing such information about life with disability— although not because we think it will convince prospective parents to raise disabled children. It very well may convince them that that path is not the one they wish to travel. Much m ore research is needed into the m ost effective tools and counseling methods that will help prospective parents achieve truly informed decisions. Even though it is crucial to make sure that the professional training of those who provide genetic information includes education about the nature of disability, it may be that neither pre- nor post-test genetic counseling sessions are the best places to help prospective parents learn about the nature of disabilities and think about the meaning of parenthood. If not, then when can individuals engage in the sort of reflection about the nature of disability and parenthood that we think needs to take place if decisions are to be truly informed? It may be, as James Lindemann Nelson has argued, that the best opportunities to educate people about disability are well upstream of the counseling session. Perhaps our best hope is that good information about disability will perm eate our culture m ore thoroughly— that there will be more television and radio shows, m ore plays, m ore newspaper articles that accurately portray the lives of people with disabilities, and m ore books like B erubes Life As We Know It. Programs in genetic counseling, medical genetics, and obstetrics should integrate education about disability into their curricula.

Lives o f D ifferent Sorts People with disabilities are a recent contingent in the civil rights march that is arguably the greatest moral achievement of the twentieth century. We fail our children if we do not educate them about the nature of disability and the history of the disability rights movement. In the end, one of the m ost im portant points of agreem ent in this project is that ignorance about the nature of disability is widespread and that such ignorance is one of the primary sources of the discrimina­ tion suffered by people with disabilities. O ur outrage at that discrimina­ tion is rooted in our fundamental com m itm ent to the m oral equality of all persons. O ut of that same respect for persons grows our belief that prospective parents should have the liberty to make decisions about

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the uses to which they will put prenatal information about genetic disability. As those in the disability community have argued since they first launched their campaign to get medicine and bioethics to examine the assumptions behind prenatal diagnosis, those decisions will be truly informed— those exercises of liberty will be authentic— only when people in our society come to learn what disability really does and does not mean for individuals and their families. Aldiough the group as a whole does not accept every claim in the disability community's critique of prenatal testing, we do wholeheartedly endorse its central recommendation to reform how prenatal genetic information is communicated to prospective parents. Even with the best information about the meaning of disability to various individuals and families, and even if that information is made available to prospective parents many weeks before they must make any decisions about parent­ hood, many (perhaps most) will choose to forego raising a child with a disability. But if prospective parents comprehend what is possible given a disability, if they carefully ask themselves hard questions about what they want and will appreciate in a future child, then they and any future children they raise have a better chance for fulfillment and for mutual, rewarding family life. And if genetics professionals learn more about what raising disabled children can mean, rethink their approach to parents, and help those parents better imagine what a child’s disability might mean for their family, then some progress will be made in honoring the disability rights m ovem ent’s central message that our society must be able to value people and lives of many different sorts. Only as we take that message seriously can we be confident that our prenatal decisions will improve familial and communal life.

NOTES 1. Cynthia M. Powell, “The Current State o f Prenatal Genetic Testing in the U nited States,” in this volum e. 2. Thomas H. Murray, The Worth o f a Child (Berkeley and Los Angeles: University o f California Press, 1996), pp. 116—17. 3. Diana W. Bianchi, Tim othy M. C rom bleholm e, and Mary D ’A lton, Fetology: Diagnosis and Management o f the Fetal Patient (Blacklick, Ohio: McGraw Hill, forthcom ing). 4. See Alan Gartner and Tom Joe, eds., Images o f the Disabled: Disabling Images (N e w York: Praeger, 1987); Joseph Shapiro, No Pity (N e w York: Tim es

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Books, 1992); and Jane W est, ed ., The Americans with Disabilities Act: From Policy to Practice (N e w York: Milbank M emorial Fund, 1991).

5. Lennard J. Davis, Enforcing Normalcy: Disability , Decfness, and the Body (L ondon, N ew York: Verso, 1995).

6 . National Organization on Disability,

National Organization on Disability/

Louis Harris Survey o f Americans with Disabilities (N e w York: Louis Harris and

Associates, 1998). 7. J. E. Tyson and R. S. Broyles, “Progress in Assessing the Long-Term O utcom e o f Extrem ely Low Birthweight Infants J JAMA 276 (1996): 4 9 2 -9 3 ; and National Organization on Disability, Survey o f Americans with Disabilities. 8 . A. L. Beaudet, “Invited Editorial: Carrier Screening for Cystic Fibro­ sis,” American Journal o f Human Genetics 4 7 , no. 4 (1990): 6 0 3 - 0 5 , at 603. 9. David T. H elm , Sara Miranda, and N aom i A ngoff Chedd, “Prenatal Diagnosis o f D ow n Syndrome: M others’ Reflections on Supports N eed ed from Diagnosis to Birth,” Mental Retardation 36, no. 1 (1998): 5 5 - 6 1 , at 57. 10. B. A. Bernhardt et al., “Prenatal G enetic Testing: Content o f D iscus­ sions betw een O bstetric Providers and Pregnant W om en,” Obstetrics and Gynecology 91

(1998): 6 4 8 —55; and T. M. Marteau, J. Kidd, and M. Plenicar,

“Obstetricians Presenting A m niocentesis to Pregnant W omen: Practice O b ­ served,” Journal o f Reproductive Infant Psychology 11 (1993): 3—10. 11. H elm , Miranda, and Chedd, “Prenatal Diagnosis o f D ow n Syndrome,” p. 57. 12. Cara D unne and Catherine Warren, “Lethal Autonomy: The Malfunc­ tion o f the Informed C onsent M echanism w ithin the C ontext o f Prenatal Testing,” Issues in Law and Medicine 14, no. 2 (1998): 165—202; and T. Marteau, H. Drake, and M. Bobrow, “Counseling Following Diagnosis o f a Fetal A bnor­ mality: The D iffering Approaches o f Obstetricians, Clinical G eneticists, and G enetic N urses,” Journal o f Medical Genetics 31 (1994): 8 6 4 -6 7 . 13. Nancy Press et al. “Provisional N orm alcy and ‘Perfect Babies’: Preg­ nant W om en ’s A ttitudes toward Disability in the C ontext o f Prenatal Testing,” in Reproducing Reproduction: Kinship, Power, and Technological Innovation, ed. Sarah Franklin and H elena Ragone (Philadelphia: U niversity o f Pennsylvania Press, 1998), pp. 4 6 - 6 5 . 14. Aliza Kolker and B. M eredith Burke, Prenatal Testing: A Sociological Perspective (W estp ort, C onn.: Bergin and Garvey, 1994), p. 9.

15. Bartha M. Knoppers et al., “Defining ‘Serious’ D isorders in Relation to Genetics Services: W ho Should D ecide?” American Journal o f Human Genetics 57, no. 4, supplem ent (1995): A 296, abstract 1723. 16. D orothy W ertz, “W h at’s Missing from G enetic Counseling: A Survey o f 4 7 6 Counseling Sessions,” abstract, National Society o f Genetic C ounselors m eetings, O ctober 1998. 17. National D ow n Syndrome Congress, “Position Statement on Prenatal Testing and Eugenics: Fam ilies’ Rights and N eed s,” available at h ttp ://

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members.carol.net/ndsc/eugenics.html, and accessed in 1999; and Little Peo­ ple of America, “Position Statement on Genetic Discoveries in Dwarfism,” available at http: //w w w 2.shore.net/~dkennedy/dwarfism_genetics.html, and accessed in 1999. 18. Dorothy C. Wertz, “How Parents of Affected Children View Selective Abortion,” in Issues in Reproductive Technologies I, ed. H. Holmes (New York: Garland Publishers, 1992), pp. 161-92. 19. Bernhardt et al., “Prenatal Genetic Testing”; and Marteau, Kidd, and Plenicar, “Obstetricians Presenting Amniocentesis to Pregnant Women.” 20. Barbara Bowles Biesecker, “The Future of Genetic Counseling: An International Perspective,” Nature Genetics 22 (1999): 133—37, at 134. 21. Michelle Fine and Adrienne Asch, “The Question of Disability: No Easy Answers for the Women’s Movement,” Reproductive Rights Newsletter 4, no. 3 (1982): 19-20; Marsha Saxton, “Prenatal Screening and Discriminatory Attitudes about Disability,” in Embryos, Ethics and Women's Rights, ed. Elaine Hoffman Barucch, Amadeo E. D’Adamo, and Joni Seager (New York: Haworth Press, 1988); Anne Finger, Past Due: Disability Pregnancy, and Birth (Seattle, Wash.: Seal Press, 1987); and Deborah Kaplan, “Prenatal Screening and Diagno­ sis: The Impact on Persons with Disabilities,” in Women and Prenatal Testing: Facing the Challenges o f Genetic Testing, ed. Karen H. Rothenberg and Elizabeth J. Thomson (Columbus: Ohio State University Press, 1994), pp. 49—61. 22. Ruth Hubbard, The Politics o f Womens Biology (New Brunswick, N.J.: Rutgers University Press, 1990); Abby Lippman, “Prenatal Genetic Testing and Screening: Constructing Needs and Reinforcing Inequities,” American Journal o f Law and Medicine 17, nos. 1—2 (1991): 15—50; Carole Browner and Nancy Press, “The Production of Authoritative Knowledge in Prenatal Care,” Medical Anthropology Quarterly 10, no. 2 (1996): 141—56; and Martha A. Field, “Killing ‘The Handicapped’: Before and After Birth,” Harvard Womens Law Journal 16 (1993): 79-138. 23. Adrienne Asch, “Reproductive Technology and Disability,” in Reproduc­ tive Laws fo r the 1990's , ed. Sherrill Cohen and Nadine Taub (Clifton, N.J.: Humana Press, 1989), pp. 69—124, at 86. 24. Allen E. Buchanan, “Choosing Who Will Be Disabled: Genetic Inter­ vention and the Morality of Inclusion,” Social Philosophy and Policy 13 (1996): 18-46. 25. Asch, “Reproductive Technology and Disability,” p. 81. 26. Adrienne Asch, “Why I Haven’t Changed My Mind about Prenatal Diagnosis: Reflections and Refinements,” in this volume. 27. Dorothy C. Wertz and John C. Fletcher, “Sex Selection through Prenatal Diagnosis: A Feminist Critique,” in Feminist Perspectives in Medical Ethics, ed. Helen Bequaert Holms and Laura M. Purdy (Bloomington: Indiana University Press, 1992), pp. 240—53.

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28. Marsha Saxton, “Disability Rights and Selective Abortion,” in Abortion ed. Rickie Solinger (Berkeley and Los Angeles: University of California Press, 1997), pp. 374-95, at 391. 29. Nancy Press, “Assessing the Expressive Character of Prenatal Testing: The Choices Made or the Choices Made Available?,” in this volume. 30. Eva Feder Kittay with Leo Kittay, “On the Expressivity and Ediics of Selective Abortion for Disability: Conversations with My Son”; and James Lindemann Nelson, “The Meaning of the Act: Reflections on the Expressive Force of Reproductive Decision Making and Policies,” in this volume. 31. Nelson, “Meaning of the Act.” 32. Bonnie Steinbock, “Disability, Prenatal Testing, and Selective Abor­ tion,” in this volume. 33. Asch, “Reproductive Technology and Disability,” p. 88. 34. Murray, Worth o f a Child , pp. 115—41; and Adrienne Asch and Gail Geller, “Feminism, Bioethics, and Genetics,” in Feminism and Bioethics: Beyond Reproduction, ed. Susan M. Wolf (New York: Oxford University Press, 1996). 35. William Ruddick, “Ways to Limit Prenatal Testing,” in this volume. 36. J. A. Blier Blaymore et al., “Parents’ and Pediatricians’ Views of Individuals with Meningomyelocile,” Clinical Pediatrics 35, no. 3 (1996): 113— 17; M. L. Wollraich, G. N. Siperstein, and P. O ’Keefe, “Pediatricians’ Percep­ tions of Mentally Retarded Individuals,” Pediatrics 80, no. 5 (1987): 643—49. 37. Philip M. Ferguson, Alan Gartner, and Dorothy K. Lipsky, “The Experience of Disability in Families: A Synthesis of Research and Parent Narratives,” in this volume. 38. M. W. Krauss, “Child-Related and Parenting Stress: Similarities and Differences Between Mothers and Fathers of Children with Disabilities,” Ameri­ can Journal o f Mental Retardation 97 (1993): 393— 404. 39. D. A. Abbott and W. H. Meredith, “Strengths of Parents with Retarded Children,” Family Relations 35 (1986): 371—75; and A. P. Turnbull et al., eds., Cognitive Coping: Families and Disability (Baltimore, Md.: Paul H. Brookes, 1993). 40. J. P. Lehman and K. Roberto, “Comparison of Factors Influencing Mothers’ Perceptions about the Future of Their Adolescent Children With and Without Disabilities,” Mental Retardation 34 (1996): 27—38. 41. Ruth I. Freedman, Leon Litchfield, and Marjl Erickson Warfield, “Balancing Work and Family: Perspectives of Parents of Children with Develop­ mental Disabilities,” Families in Society: The Journal o f Contemporary Human Services (October 1995): 507-14, at 511. 42. Sara Ruddick, Maternal Thinking: Toward a Politics o f Peace (Boston: Beacon Press, 1989). 43. Mary Ann Baily, personal communication to authors, October 1997. 44. Caroline Moon, unpublished paper on file with Luce Program at Wellesley College, 1999. Wars: A HaI f Century o f Struggle, 19 5 0 —2000 ,

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45. Asch, “Reproductive Technology and Disability,” p. 73. 46. Deborah Kent, “Somewhere a Mockingbird,” in this volume. 47. Nora Ellen Groce, Everyone Here Spoke Sign Language: Hereditary Deafness on Martha's Vineyard (Cambridge, Mass.: Harvard University Press, 1985). 48. Buchanan, “Choosing Who Will Be Disabled.” 49. Dena S. Davis, “Genetic Dilemmas and the Child’s Right to an Open Future,” Hastings Center Report 27, no. 2 (1997): 7—15; Bonnie Steinbock and Ronald McClamrock, “When Is Birth Unfair to the Child?” Hastings Center Report 24, no. 6 (1994): 15-21; and Ronald Green, “Parental Autonomy and the Obligation Not to Harm One’s Child Genetically,”Jo urn al o f Law, Medicine Sl Ethics 25, no. 1 (1997): 5—16. 50. Steinbock, “Disability, Prenatal Testing, and Selective Abortion.” 51. Philip M. Ferguson, personal communication to authors, May 1998. 52. Kent, “Somewhere a Mockingbird.” 53. Alice Domurat Dreger, “The Limits of Individuality: Ritual and Sacri­ fice in die Lives and Medical Treatment of Conjoined Twins,” Studies in the History and Philosophy o f Science 29, no. 1 (1998): 1-29. 54. Michael Berube, L fe As We Know It: A Father, A Family, and An Exceptional Child (New York: Pantheon, 1996). 55. James Lindemann Nelson, personal communication to authors, Octo­ ber 1997. 56. Jeffrey Botkin, Fetal Privacy and Confidentiality,” Hastings Center Report 25, no. 5 (1995): 32—39. See also Mary Terrell White, “Making Responsible Decisions: An Interpretive Ethics for Genetic Decisionmaking,” Hastings Center Report 29, no. 1 (1999): 14—21. 57. Knoppers et al., “Defining ‘Serious’ Disorders in Relation to Genetics Services”; and Wertz, “What’s Missing from Genetic Counseling.” 58. See, however, Murray, Worth o f a Child; and Erik Parens, ed., Enhancing Human Traits: Ethical and Social Implications (Washington, D.C.: Georgetown University Press, 1998). 59. National Society for Genetic Counselors, “National Society for Ge­ netic Counselors Code of Ethics,” in Prescribing Our Future: Ethical Challenges in Genetic Counseling, ed. Dianne M. Bartels, Bonnie S. LeRoy, and Arthur L. Caplan (New York: Aldine de Gruyter, 1993), pp. 169-71. 60. J. Teicher et al., “Disability Awareness Training in die Graduate Genetic Counseling Training Program: A Survey of Recent Graduates,”Journal o f Genetic Counseling 1 (1998): 498. 61. Asch, “Reproductive Technology and Disability,” Appendix A, pp 108-17. 62. Marsha Saxton, “Disability Feminism Meets DNA: A Study of an Educational Model for Genetic Counseling Students on die Social and Ethical Issues of Selective Abortion (Ph.D. diss., Brandeis University, 1996). 63. Barbara Bowles Biesecker, personal communication to authors, May

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1999. On parents’ views of the future health of their fetus, see Barbara Bowles Biesecker and Theresa M. Marteau, “The Future of Genetic Counseling: An International Perspective,” Nature Genetics 22 (June 1999): 133—37. 64. Diana Bianchi, personal communication to authors, May 1999. 65. Lori B. Andrews et ah, Assessing Genetic Risks: Implications fo r Health Policy (Washington, D.C.: National Academy Press, 1994), p. 150. 66. National Down Syndrome Congress, “Position Statement on Prenatal Testing and Eugenics: Families’ Rights and Needs,” available at http://members carol.net/ndsc/eugenics.html, and accessed in 1997. 67. Nancy Press and Carole Browner, “Collective Silences, Collective Fictions: Flow Prenatal Diagnostic Testing Became Part of Routine Prenatal Care,” in Women and Prenatal Testing: Facing the Challenges o f Genetic Testing, ed. Karen FI. Rothenberg and Elizabeth J. Thomson (Columbus: Ohio State University Press, 1994), pp. 201—18.

Taylor & Francis Taylor & Francis Group

http://taylorandfra nci s.com

[24] A bortion, A utonomy and Prenatal D iagnosis E mily J a c k s o n London School o f Economics, U K

A bstract The principle of patient self-determination has assumed central importance in British medical law in recent years. This article considers whether this increasingly strong commitment to patient autonomy has any resonance for abortion law. In particular, this article explores the possibility that the priority currently accorded to autonomous decision making may be in tension with the Abortion A c ts requirement that a woman’s reasons for seeking to terminate her pregnancy be judged acceptable by two medical practitioners. Moreover, interest in the moral legitimacy of a w om ans reasons for wanting to terminate her pregnancy seems to be intensifying. Concerns arising from the increasing availability of precise prenatal tests have led to suggestions that access to abortion should be further restricted in order to prevent the cavalier use of abortion for reasons that might seem trivial or misguided. U sing abortion following prenatal diagnosis as an example, this article considers whether it is anomalous for the common law’s vigorous protection of an individual’s freedom to make irrational or morally objectionable choices about his or her medical treatment to coexist with demands for further restriction of the acceptable grounds for abortion.

I n t r o d u c t io n

N RECENT YEARS there have been several attempts to move beyond the unproductive moral and political gridlock that has tended to domi­ nate discussion of abortion (Dworkin, 1993; Robertson, 1994). Ronald Dworkin, for example, has suggested that with the exception of a small number of extremists, there is in fact broad agreement that while fetal life deserves respect, its protection cannot take priority over the rights of the pregnant woman (Dworkin, 1993). And D w orking formulation appears to be an accurate encapsulation of the position at common law, and possibly under the Human Rights Act 1998:1 namely that a fetus cannot be protected at the expense of the pregnant w om ans bodily autonomy. But if it is now settled law that a fetus is not a legal person ,2 and that its interests cannot

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trump those of the pregnant woman, then there may be some tension between developments in the common law and the Abortion Act 1967. Central to the Abortion Act 1967 is the requirement that a woman must be able to establish that an abortion is necessary in order to protect her health or that of her existing children, or to prevent the birth of a child who would suffer from severe abnormalities. A woman’s access to abortion is therefore conditional upon her reasons for wanting to terminate her pregnancy. In the parliamentary debates that led to the passing of the 1967 Act the chief strat­ egy of the reformers was to argue that abortion should be available where the birth of an unwanted child would jeopardize the health and well-being of the pregnant woman and her family (Sheldon, 1997a). The resulting legislation converted this argument in favour of legalization into a condition, so that a woman is not entitled to terminate her pregnancy unless she can establish that her health, or that of her children, would be injured by carrying an unwanted pregnancy to term. The idea that the legitimacy of an abortion depends upon its purpose still commands widespread support. And refinements in prenatal diagnostic tech­ niques have intensified concern that abortion could be used for reasons that some would consider to be trivial or grounded in prejudice. As I shall discuss below, there are those who would restrict the routine abortion of abnormal fetuses, and some feminists have advocated using the law in order to elimi­ nate sex-selective abortion (Holmes, 1995; Warren, 1999). Underlying these arguments is the assumption that a wom ans reasons for wanting to terminate her pregnancy are a matter of legitimate public interest and, furthermore, that a woman’s access to abortion should depend upon whether or not those reasons are acceptable. My argument is that judging a woman’s reasons for seeking to terminate a pregnancy may be inconsistent with the priority currently granted to the common law principle of self-determination. In recent years, the primacy of patient autonomy has emerged as a central theme within medical law, and it now seems uncontroversial that, in the context of a refusal of medical treat­ ment, [a] medical practitioner must comply with clear instructions given by an adult of sound mind as to the treatment to be given or not given .. . whether those instructions are rational or irrational? (my emphasis)

So an essential feature of this respect for a patient’s right of self-determination is that it extends to decisions of dubious moral quality. In this article I intend to consider whether the growing emphasis upon an individual’s right to make irrational choices about his or her medical treatment has any implications for the regulation of abortion. Is the right to make foolish or disturbing decisions confined to the refusal of medical treatment, or might it have a broader scope? The liberal conception of autonomy is not necessarily limited to a right to be free from unwanted intrusion, but instead is rooted in the idea that indi­ viduals should be able to pursue their own goals according to their own

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values, beliefs and desires. While some feminists have criticized the atomistic individual of liberal theory for being insufficiently attentive to the im port­ ance of connections with others (Gilligan, 1982; Wells, 1998; West, 1992), respect for autonomous decision making need not be incompatible with a recognition that an individual's social context inevitably informs and influ­ ences his or her choices. For example, as I shall explain below, the desire to terminate a particular pregnancy does not emerge in a vacuum, but instead may be shaped by a woman's social, economic and cultural circumstances. But while community values may affect an individual's decision making, the right of every adult to have a sphere of self-determination or self-government may be especially important for women who are deciding whether or not they want to carry a pregnancy to term. Recognizing the pregnant woman as the primary decision maker in relation to abortion does not necessitate an unqualified acceptance of conventional liberal theory's trenchant individualism. An argument from autonomy may fail to capture the rich network of relationships in which choices are made, but it may nevertheless offer a useful tool for the comparison of abortion law with the regulation of other sorts of medical treatment. In particular, given that induced abortion is an exclusively female medical procedure, it might be worth drawing attention to the conspicuous absence of a robust concept of autonomy (Sheldon and Thomson, 1998). It could be argued that protection of a pregnant woman's bodily autonomy should include her right to determine whether or not she has a baby. If in other contexts the law recognizes that safeguarding a patient's right to selfdetermination is incompatible with rigorous scrutiny of their reasons for making a particular decision, the Abortion Act's continued reliance upon professional assessment of the woman's motivation in seeking an abortion may begin to seem somewhat outdated. It might be supposed that one consequence of the growing prominence of the principle of patient self-determination would be diminishing interest in a woman's reasons for wanting to terminate her pregnancy. We might assume that the dominant language of self-government would displace judgements about the moral legitimacy of a woman’s decision to have an abortion. But the paradox I intend to explore in this article is that, on the contrary, there seems to be increasing controversy about the moral validity of abortion in certain circumstances: I shall concentrate upon abortion following prenatal diagnosis, although it is also noteworthy that selective reduction of multiple pregnancies has been the subject of fierce condemnation (Sheldon, 1997b). In recent years a series of judgements in the House of Lords and the Court of Appeal has both clarified and broadened the scope of a patient’s right to make decisions about her medical treatment. Simultaneously, concerns arising from the increasing availability of precise prenatal tests have led to suggestions that access to abortion should be further restricted in order to prevent the cavalier use of abortion (Gosden, 1999: xiv). As the human genome project is completed, the moral legitimacy of abortion following the prenatal detection of various genetic markers is likely to become the subject

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of even fiercer debate. As I shall explain in this article, it may seem anomal­ ous that the common law’s vigorous protection of an individual’s freedom to make irrational or morally objectionable choices about his or her medical treatment should coexist with demands for further restriction of the accept­ able grounds for abortion.

T he A bortion A ct 1967

Abortion is lawful in Scotland, England and Wales if two doctors believe in good faith that one of the four grounds in s. 1( 1) of the Abortion Act 1967 is satisfied. Unlike the abortion laws of many other countries, the grounds for abortion are vague: reasons like rape or incest are not specified. This ambi­ guity was undoubtedly deliberate. David Steel’s Abortion Bill initially con­ tained clauses allowing abortion where the pregnant woman was, for example, under the age of 16 or was pregnant as a result of rape, but these were opposed by the British Medical Association and the Royal College of Obstetricians and Gynaecologists. It was feared that a definitive list of circumstances in which abortion is legitimate would remove medical dis­ cretion, and might give women the impression that in certain instances abor­ tion would be an entitlement (Keown, 1988: 90). The 1967 Act does not then allow women to decide whether or not to ter­ minate an unwanted pregnancy. There is no right to an abortion, even if the grounds in the Act are plainly satisfied. Instead the statute legitimizes the doctors’ decision that an abortion would fulfill the s. 1(1) criteria. Moreover, the statute does not specify that the grounds have to actually be satisfied. A doctor could not be prosecuted for authorizing an abortion when the statu­ tory criteria did not exist. Instead the statute enshrines deference to medical opinion, and a prosecution could only be brought on the grounds that the doctors had not acted in good faith .4 In 1998 over 97 percent of all abortions were authorized under what has become known as the ‘social’ ground (Department of Health, 1999b), that is that the pregnancy has not exceeded its twenty fourth week and that the con­ tinuation of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family.

Given that pregnancy and childbirth are always more dangerous than abor­ tion, this requirement is easily satisfied. And under s. 1(2) the doctor is further directed to take account of the woman’s actual or reasonably fore­ seeable environment, which means that her social circumstances are clearly relevant to the assessment of her medical need. It could then be argued that the ‘social’ ground operates in practice to render every pregnancy lawfully terminable within the first 24 weeks, in which case it may be absurd to retain it as a qualifying condition. Yet despite the apparent ease with which this

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ground can be satisfied, it would not be true to say that this is effectively abortion on demand. There is an important obstacle to wom ens access to abortion, but it does not consist in the stipulation that pregnancy must be more injurious to health than termination. Instead, the limiting condition in s. 1(1 )(a) is the need to convince two doctors that abortion is indicated. Simi­ larly, the tiny percentage of abortions carried out under s. 1(1 )(d) depend upon two doctors agreeing that a particular fetal handicap is ‘serious5. There is no statutory checklist of qualifying conditions, or guidance as to what cri­ teria should be taken into account, so the assessment of ‘seriousness 5 again depends entirely upon the doctors 5discretion. While women who can pay for specialist abortion services will not encounter hostile medical practitioners, women who depend upon NHS funding may discover that their GP and/or their health authority is un­ cooperative, in which case the need to satisfy two doctors may be both onerous and time consuming. Additionally, there are women from ethnic minority groups or women who are poorly educated who may not have the knowledge or the confidence to seek a second opinion if their GP is obstruc­ tive. And women from rural areas faced with an unsympathetic doctor may not be able to find an alternative medical practitioner. The Abortion Act then operates to entrench deference to medical opinion with disproportionate practical impact upon the choices of disadvantaged women. It is not self-evident that doctors are best placed to decide whether or not a pregnancy should be terminated. Indeed we would find it offensive if doctors exercised this medical discretion and authorized an abortion when­ ever they encountered a pregnant woman whose mental or physical health they believed would be best served by termination, or whose fetus they judged to be suffering from a serious handicap. Instead we assume that doctors only decide that abortion is medically indicated after a request from a woman who has made the social decision that she does not wish to con­ tinue with her pregnancy. While a legal requirement that only qualified health care professionals should carry out surgical abortions makes sense, it is obvi­ ously wholly artificial to suggest that doctors are uniquely able to decide whether a woman should terminate her pregnancy. In 1967 the medicalization of abortion may have appeared to be a prag­ matically sensible way of neutralizing opposition to the legalization of abor­ tion. Those in favour of reform argued that women with unwanted pregnancies were facing an invidious choice between giving birth to a child for whom they would be unable to provide adequate care, or risking an illegal abortion. The recognition that the health of women and children was endangered by doctors 5inability to provide safe, legal abortion made it poss­ ible to justify progressive law reform on public health grounds. And because wealthy women were often able to find a doctor who was prepared to carry out an abortion privately, the illegality of abortion served to exacerbate existing health inequalities. Since the reformers presented abortion as a medical treatment that ought to be available to the caring medical prac­ titioner faced with a ‘desperate 5pregnant woman, it was probably inevitable

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that the legislation would represent the abortion decision as one to be taken by doctors in the best interests of their patients. And it could be argued that the Abortion Act simply contains a harmless legal fiction: in practice doctors do not actually make decisions about whether a particular pregnancy should be terminated, they usually simply give their approval for decisions that have already been taken. But the requirement that a woman must first satisfy two doctors that she has com­ pelling reasons to terminate her pregnancy is, I believe, significant. Although it is generally assumed that few women are denied access to abortion services, it is in fact impossible to tell how many woman, like the plaintiff in Saxby v Morgan,5 have been given misleading advice about their eligibility for abor­ tion (Law, 1994: 302). A woman who wants an abortion is wholly dependent upon the exercise of medical discretion. She must present her circumstances in the worst possible light in order to convince two medical practitioners that continuing the pregnancy would be injurious to her mental or physical health. H er need for the approbation of two doctors is, as I shall discuss in the next section, in sharp contrast to the common law’s respect for the indi­ vidual’s right to make irrational or foolish choices about his or her medical treatment.

P a t ie n t A u t o n o m y THE RIGHT TO REFUSE TREATMENT

It is increasingly recognized that ‘to fail to respect the autonomy of compe­ tent people is to inflict harm on them that is just as morally unacceptable as direct physical or mental harm’ (Doyal, 1998: 1000). And it is undoubtedly true that in the law few years ‘the “golden thread” of medical law has become the need to respect a patient’s right of self-determination or autonomy’ (Grubb, 1999: 59). In the early 1990s, there were several judicial statements which appeared to suggest that this common law right of self-determination could be restricted for competent pregnant women, especially in the later stages of pregnancy. For example in Re T (Adult: Refusal of Treatment)^ Lord Donaldson suggested a hypothetical exception to the principle of patient autonomy: the only possible qualification is a case in which the choice may lead to the death of a viable fetus, (at 102)

And in Re S (Adult)(Refusal of Medical Treatment)9Sir Stephen Brown relied upon Lord Donaldson’s caveat in Re T, and the American case of Re A C and, following a two-hour ex parte hearing, granted a declaration that a caesarean section could be lawfully performed without the consent of the pregnant woman. Sir Stephen Brown’s reliance upon Re A C was bizarre, because although there had been a trend towards non-consensual interventions in

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pregnancy in the United States,6in Re A C the District of Columbia Court of Appeals reasserted that a refusal of consent must be inviolable in virtually all cases. The decision in Re A C was that a caesarean section should not have been authorized on Angela Carder and that unless there were ‘truly extra­ ordinary or compelling reasons’, the pregnant wom ans wishes should always be determinative.7 In addition to its misreading of an American case, the decision in Re S also represented an extraordinary exception to the ordinary principles of English medical law. Given that it is not possible to force an individual to act against his or her wishes to save the life of another person, it seems anomalous that someone should be forced to submit to unwanted medical intervention in order to preserve a fetus before it achieves legal personhood. According to the decision in Re S’, a pregnant woman’s responsibilities to her fetus far exceed those owed by a mother to her children. And restrictions on the use of organs from cadavers mean that, nonsensically, a dead person would have a greater right of veto over unwanted surgical intrusion than a woman in labour .8 Although it seems incredible that the bodily integrity of a corpse should have more legal protection than that of a pregnant woman, it is clear that even if an organ transplant would save the life of an identifiable and suffering individual, respect for the wishes of a dead person must trump the doctor’s duty to act to preserve life. Unsurprisingly (Brown, 1994), Sir Stephen Brown’s decision in Re S has been widely criticized for both its substance and its procedural shortcomings (De Gama, 1993; Mair, 1996: 84; RCO G, 1996). And in St George's Health­ care N H S Trust v S the Court of Appeal expressed a clear and unambiguous commitment to a competent pregnant woman’s right of self-determination. The Court of Appeal were unequivocal that pregnancy . . . does not diminish (a woman’s) entitlement to decide whether or not to undergo medical treatment . . . H er right is not reduced or diminished merely because her decision to exercise it may appear morally repugnant, (at 957)

Following the decision in St George's it would be extremely difficult to justify forcing a competent adult woman to undergo a caesarean section without her consent. And a British Medical Authority spokesman has suggested that the fact that a woman has moral obligations to her fetus does not mean the health professionals or the courts can compel her to fulfil them. (Dyer, 1998)

Similarly, guidelines issued by the Royal College of Obstetricians and Gynaecologists instruct medical staff that It is inappropriate, and unlikely to be helpful or necessary, to invoke judicial intervention to overrule an informed and competent woman’s refusal of a pro­ posed medical treatment, even though her refusal might place her life and that of her fetus at risk. (RCOG, 1994: para. 5.12)

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And a recent Health Service Circular has expressly stated that a competent woman is entitled to make a decision that will lead to the death or serious handicap of her fetus, even if her choice is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. (Department of Health, 1999a, 6)

In relation to non-consensual caesarean sections, it should of course be acknowledged that this robust commitment to respecting an individual’s right to make her own decisions extends only to competent patients. A full con­ sideration of the defects in the courts’ treatment of women deemed incapable of consenting to obstetric intervention is outside the scope of this article. But it is important to recognize that given the relative ease with which it has been established that women in labour may have been rendered temporarily incompetent by the pain and stress of childbirth,9 it would be foolish to over­ state the practical importance of the decision in St George's. Its significance instead lies in its articulation of an extremely strong presumption in favour of patient autonomy, even where a choice may lead to the death of a viable fetus. The decision in St George's clearly indicates that, in relation to the com­ petent refusal of medical treatment, the death of a fetus is less important than the protection of patient autonomy. So while it may be true that the fetus should be treated with respect, at common law the pregnant woman’s wishes take priority over the protection of fetal life. But if the principle of selfdetermination requires an individual’s choice about her medical treatment to be respected even where her decision will end the life of a 36-week old fetus, is there some tension with the Abortion Act’s requirement that a woman’s reasons for seeking to terminate a pregnancy of much shorter gestation be judged acceptable by two medical practitioners?

PATIENT AUTONOMY AND ABORTION

There will be those who think that deciding to refuse an unwanted caesarean section is entirely different in kind from deciding to terminate an unwanted pregnancy, and that there is therefore no reason to be alarmed by any appar­ ent discrepancy between abortion law and the principle of patient self-determi­ nation. While both may be decisions that result directly in the death of a fetus, there are plainly several crucial differences between refusing surgical inter­ vention that would save a fetus’s life and seeking an abortion. My argument is not that the similarities in outcome and causation efface these differences, but rather that we should be concerned by the gulf between the overriding priority given to an individual’s autonomy in relation to refusal of treatment and the prevailing indifference towards autonomous decision making in relation to abortion. Are abortion and refusal of treatment sufficiently dissimilar that we

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can be untroubled by abortion law's continued insistence that a pregnant woman is not entitled to make her own decision according to her own values? According to the conventional liberal ‘harm principle5, an individual's freedom to act should be restricted only in so far as such restriction is neces­ sary to prevent harm to others. Any limitations on an individual's ability to make choices about his or her life must then be rigorously justified. It is perhaps interesting that unrestricted access to abortion is seldom presented as an essential adjunct of individual liberty. Instead there is broad acceptance or toleration of regulations that limit a woman's access to abortion. But what 'harm' would be caused if abortion was available upon request? Could it be argued that unrestricted access to abortion would ‘harm ’ the pregnant woman herself? Such paternalistic restrictions on individual freedom should be limited and tightly circumscribed, but they are not unprecendented: there are other medical decisions that individual patients are not entitled to take for themselves. For example, a patient cannot give a valid consent to female circumcision ,10 nor can he or she consent to the removal of an organ for payment .11 There is insufficient space here to consider the legitimacy or otherwise of such provisions, but there is an obvious difference between these restrictions and the limits upon access to abortion. Prohibi­ tions on organ sale or female circumcision derive principally from concerns about whether or not an apparent consent to be circumcised, or to sell an organ, would genuinely reflect the individual’s will. Abortion legislation, on the other hand, does not call into question the validity of a woman's consent to abortion. Instead, it simply provides that her consent must be considered inadequate without the subsequent approval of two medical practitioners. My argument then is that the current abortion legislation is rooted in a pater­ nalistic attitude to women with unwanted pregnancies which may have rep­ resented a sensible strategy for legalization in 1967, but which may now be in tension with the development of the common law principle of patient autonomy. If restrictions upon abortion cannot be justified by paternalistic protection for the pregnant women, could it be argued that they are instead needed in order to prevent harm to others? Since it seems clear that the wishes of a com­ petent adult woman must take priority over the protection of fetal life, it would be difficult to argue that harm to the fetus itself justifies the limits on abortion. Similarly, it is not self-evident that society in general would be ‘harmed’ by the ready availability of abortion: as we have seen, the decision in St George's appears to indicate that the moral repugnance of an individual's choice should not be a sufficient reason for restricting her autonomy. It is not then the outcome, that is the death of a fetus, that distinguishes abortion from the patient's right to refuse a caesarean section. Instead, the distinctive ‘harm’ that would be caused by unrestricted access to abortion has to be located in the differences in intention, and in the means of death. So in St George's, S did not intend to end her fetus’s life: her intention was to refuse medical intervention. And if S’s refusal had been respected and her fetus had died, the death would have been caused by an omission rather than by any

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deliberate action by health care professionals. In contrast, a woman who has an abortion intends to end her fetus’s life, and is assisted by the positive action of medical practitioners. The difference between intentionally acting to end life and failing to save it is, of course, critical. English medical law has relied upon this act/omission distinction in order to draw a line between lawful and unlawful conduct where the consequence is the death of a patient .12 Doctors, it is argued, must not end life but they ‘need not strive officiously to keep alive’. The act/omis­ sion boundary undoubtedly has intuitive appeal: the obligation not to harm people does seem more compelling than an obligation to benefit people. And it might be argued that the distinction between killing and letting die derives from first principles of medical ethics: Ranaan Gillon has said that ‘it seems entirely plausible that we owe non-maleficence, but not beneficence to every­ body’ (1985: 81). But the apparent clarity and moral simplicity of the act/omission distinc­ tion may be misleading. Certainly in relation to decisions about withdraw­ ing medical treatment, reliance upon the difference between acts and omissions has led to some dubious and perhaps arbitrary distinctions (Glover, 1977:116). And while a duty of non-maleficence may be considered central to ethical medical practice, it is not the only or even the most im port­ ant principle, respect for patients’ self-determination, dignity and bodily autonomy may be equally valuable (Gillon, 1985). A doctor’s duty to ‘above all, do no harm’ is not necessarily satisfied by refusing a woman an abortion because he or she considers the woman’s reasons for wanting a termination trivial or misguided. Forcing a woman to carry, deliver and bear responsi­ bility for a child that she does not want could be characterized as a poten­ tially harmful interference with her interest in making significant decisions about her life according to her own values. A duty of non-maleficence then simply begs the question: what does it mean to do harm? The usefulness of the act/omission distinction with respect to fetal life is further undermined by the fact that it is of course lawful to deliberately end fetal life in accordance with the Abortion Act. So the arguments from first principles of medical ethics which result in a clear and absolute rule against deliberately acting to end a person’s life do not necessarily apply to fetuses. Abortion is the most common surgical operation for women of reproductive age (Department of Health, 1999b; Lattimer, 1998: 59; Law, 1994: 281), and it has been estimated that between 35 and 40 percent of all women will have at least one abortion during their lives (Furedi, 1998:161). Deliberately acting to end fetal life is then a routine medical procedure. If it is accepted that a fetus is not a legal person, and that its life may be ended by deliberate and positive action, it is not clear that the act/omission distinction demands that an abortion should only take place if a woman can satisfy two doctors that her reasons are adequate. There are, of course, those who would argue that the moral difference between acting to end fetal life and failing to save it means that access to abor­ tion should be strictly limited and confined to circumstances where there are

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good reasons for termination. My argument is simply that it is not selfevident that the adequacy of a woman’s reasons for wanting to terminate her pregnancy needs to be policed externally by medical professionals. Especi­ ally in the light of the priority currently given to respecting an individual’s irrational or misguided choices, it is not obvious that the act/omission dis­ tinction precludes allowing a woman’s own values and goals to determine whether or not she has an abortion. But the act/omission distinction is not the only way in which abortion can be distinguished from the right to refuse a caesarean section. It could also be argued that the protection of medical discretion means that a pregnant woman cannot insist upon the performance of a particular operation, whereas she should be able to refuse an unwanted one. This would effec­ tively limit patient self-determination to a right of refusal, rather than a broader general right to make positive decisions about one’s medical care.13 Scarce resources and the inevitability of rationing are often cited as reasons to reject the very concept of a ‘right’ to any particular treatment (Ikonomidis and Singer, 1999: 524; Morgan, 1996). But since the average abortion costs less than £300 (British Pregnancy Advisory Service, 1999), and the health care provided during an average pregnancy costs nearly £2000 (Audit C om ­ mission, 1997), there can be no economic justification for limiting access to abortion. A related argument is that doctors are not mere technicians whose duty is simply to comply with any request for medical treatment; consequently a patient should not be able to force a doctor to perform an operation contrary to his or her clinical judgement. Yet choosing whether or not to terminate an unwanted pregnancy is, as we have seen, seldom a clinical decision. There are a few rare instances where an abortion is necessary to save a patient’s life, in which case the decision to operate is indubitably informed by a doctor’s clini­ cal expertise. But in the vast majority of cases it is implausible to suggest that the decision to terminate a pregnancy is one where the doctor’s clinical judge­ ment must determine the course of action. A doctor’s willingness or reluc­ tance to perform an abortion on a particular woman derives instead from his or her moral judgement about the legitimacy of abortion. A conscientious objection clause in the statute is then sufficient to prevent doctors being forced to act contrary to their moral or ethical values. And in relation to the management of childbirth, there is an increasing emphasis upon women’s rights to make positive choices about the pro­ cedures to be followed (Cumberledge, 1993), even where their choice may conflict with medical advice and impose an additional economic burden upon the health service. A pregnant wom an’s active involvement in the drawing up of a birth plan, specifying in advance her preferred management of delivery, is now widely accepted to be good clinical practice. These prefer­ ences are not confined to advance refusals of unwanted intervention but extend to positive requests for particular sorts of obstetric care. If pregnant women might be entitled to make positive choices about the management of their labour according to their own convictions (Amu et al., 1998; Drife,

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1997; Paterson-Brown, 1998), it seems inconsistent to predicate women’s access to abortion upon professional approval of their reasoning. A further objection to my analogy might be that the bodily integrity of a pregnant woman is more severely jeopardized by the involuntary perform­ ance of an invasive operation than it is by the refusal of an abortion. And it is of course true that the performance of an operation without the consent of a competent patient may be both a tort and a crime, whereas denying a woman an abortion would only be unlawful if the woman’s life were in danger. So it may be right to describe a forced caesarean as a more serious legal wrong than forcing a woman to carry an unwanted pregnancy, or go through an unwanted delivery. But the fact that compelling a woman to carry a pregnancy to term is not regarded as an important derogation from the overriding right of patients to make their own decisions about their medical treatment may reflect a network of assumptions about the naturalness of maternity, rather than some objective assessment of its relative intrusiveness. Pregnancy, especially in its later stages, is a uniquely invasive experience. For many women labour is exceptionally gruelling and painful, and unless the baby is immediately given up for adoption, carrying a pregnancy to term will result in the onerous and enduring responsibilities of parenthood. In so far as a non-consensual operation is illegitimate because it interferes with a person’s right to make decisions about his or her life, requiring a pregnant woman to carry an unwanted pregnancy to term may be similarly disruptive. Oddly then, a pregnant woman in labour is treated as a patient with full rights of self-determination, even where this may lead to the death of her fetus. But a pregnant woman who has decided to terminate her pregnancy is seldom described as a ‘patient’: instead she is a woman whose potentially illegal act can be legitimized by the beneficent exercise of medical discretion. She has no right to make this particular decision about her medical treatment despite the fact that it is a firmly established legal principle that the choices of competent, adult patients must be respected even if they are foolish, mis­ guided or immoral. Furthermore, as I shall discuss below, the presumption that the law can be used in order to distinguish between sufficient and insufficient reasons for abortion is assuming even greater importance in the light of refinements in prenatal diagnostic techniques. The widely expressed fear that the ready availability of extensive information about the developing fetus could lead to the routine use of selective abortion (Gosden, 1999: 90) takes for granted the legitimacy of scrutinizing a woman’s reasons for terminating a pregnancy. Given increasing disquiet about the instrumental use of prenatal screening and abortion, it may be particularly important to affirm the primacy of the common law principle of patient autonomy, and its relevance for women seeking to terminate their pregnancies. As John Harris has argued, we should be prepared to accept both some degree of offence and some social disadvantages as a price we should be willing to pay in order to protect freedom of choice in matters of procreation. (Harris, 1999: 90)

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Technological developments mean that it is possible to carry out prenatal tests at increasingly early stages in pregnancy, when termination is a simple and straightforward procedure. And as the humane genome project approaches completion it is becoming possible to detect an increasing number of abnor­ malities by identifying whether a fetus possesses the relevant genetic indi­ cators. Although some genetic tests can help to prevent the birth of a child who would suffer a short and painful life, others may identify a predisposition to certain adult-onset diseases, or even to particular behavioural traits or physi­ cal features. Routine identification of a growing number of fetal characteristics inevitably raises the possibility of abortion for reasons that some people may consider misguided or trivial (Modell and Modell, 1992: 189). First, I shall consider the argument that increasing recourse to prenatal genetic screening raises the spectre of a new sort of eugenics. Unlike the statesponsored eugenic programmes of the first half of the 20th century, there are those who believe that the breadth and accuracy of prenatal information mean that private eugenic decisions are emerging as a regular feature of preg­ nancy. According to some commentators, the negative consequences for dis­ abled people of routine prenatal testing and abortion outweigh the potential benefits of disease prevention. While I shall acknowledge that it may not be sensible to regard prenatal genetic diagnosis as the solution to illness or hand­ icap, I shall argue that this does not mean that individual women’s access to information about their fetus or to subsequent abortion should be restricted. Second I shall consider abortion on the grounds of fetal sex. In some coun­ tries, amniocentesis and ultrasound are frequently used in order to give women the option of aborting fetuses that are found to be the 'wrong’ sex. Unsurprisingly sex-specific abortions are widely perceived to be ethically problematic, and there has been legislation restricting access to sex-determi­ nation tests, and to abortion on the grounds of fetal sex. But I intend to argue that unease about sex-selective abortion does not justify derogating from the basic principle that a competent adult ought to be entitled to make her own decisions about what happens to her body.

FETAL A B N O R M A L IT Y

There is a growing body of opinion that questions the legitimacy of abortion in cases of fetal abnormality. Those opposed to prenatal screening and abor­ tion often cite the legacy of Nazi policies which used a medical model of disease prevention in order to justify the elimination of ‘defective’ individuals and, as Jonathan Glover points out, ‘if a policy can be described as eugenic, that is enough for most people to rule it out at once’ (1999: 102). A recent Birth Control Trust/MORI poll found a sharp decline in support for abortion where there was a risk of handicap (Furedi, 1998: 166). Dis­ approval of abortion for fetal abnormality was particularly marked in the

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young, and in a follow-up study, Ellie Lee and Jenny Davey found that only 11.4 percent of young people thought that D ow ns syndrome was an accept­ able reason for termination (Lee and Davey, 1998: 21). This forms an inter­ esting contrast with a survey of geneticists in the USA, 85 percent of whom supported abortion for Down’s syndrome (Wertz, 1997: 335). In this section I explore and reject three arguments often put forward by those who regard abortion for fetal abnormality as morally suspect. I intend to suggest that their arguments are misguided, but more significantly that a strong commitment to the principle of patient self-determination may render them irrelevant. First, one recurrent objection to abortion on the grounds of fetal ab­ normality is that it presupposes a crisp separation between normal and abnormal human development (Cunningham-Burley, 1998). When the human genome is mapped everyone will be able to identify ‘abnormalities’ in their genotype (Skene, 1998: 2). If there is no bright-line boundary between a normal and an abnormal human genome, it might be difficult to formulate a universal and objective definition of abnormality. It has therefore been argued that if the line between abnormality and normal human variability is not self-executing, the decision to have an abortion following a particular prenatal diagnosis may be socially constructed in the same way as it is where a test reveals that the fetus is the ‘wrong’ sex (Gericke, 1990: 932). Whereas, as I shall discuss below, requests for sex-selective abortion often emerge from an economic, cultural and religious context in which daughters are less valu­ able than sons, the decision to terminate an ‘abnormal’ fetus may reflect dominant social or medical assumptions about a particular disability. A further strand to this argument is the suggestion that offering a particu­ lar prenatal test if there is no possibility of treatment may convey a tacit message that termination is the only responsible choice. For example, amnio­ centesis or chorionic villus sampling is routinely offered to women over the age of 35. Both carry an increased risk of miscarriage which would not be worth taking unless termination would be contemplated in the event of a positive diagnosis (Adler et al., 1991). Given the widespread tendency to defer to medical advice, if a doctor suggests that a woman should take such a test, there may appear to be an unspoken presumption in favour of ter­ mination for the identified abnormality (Tomlinson, 1998: 551). But while it is true that a woman’s decision to abort a fetus after a particular prenatal diagnosis will be influenced by both society’s attitude to the dis­ ability, and by her doctor’s advice, this does not automatically render her decision morally suspect. To recognize the significance of context in the decision-making process is descriptively accurate but does not, in my opinion, undermine the legitimacy of a particular choice. To suggest that a woman’s desire for an abortion is only worthy of respect if it is unmediated by external influences is unrealistic and would in practice invalidate most individuals’ decisions about their medical treatment. A second objection to abortion on the grounds of abnormality is that it has broad social consequences for the disabled (Field, 1993). Just as some feminists have suggested that sex-selective abortion devalues all women,

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some disabled people have argued that the routine abortion of fetuses with their disability sends a clear message that they should ‘not have been born’ (Field, 1993: 115). This argument is a clearly a rhetorically powerful one, but it relies upon some belief in the moral equivalence of a fetus and a person. Disability should not be a relevant reason for choosing between people, but if one accepts that a fetus does not have legal personality, rules that prohibit discrimination cannot apply in utero (Harris, 1998: 215). A related argument emphasizes the practical disadvantages in regarding termination as the ‘cure’ for certain diseases. One of the primary goals of con­ temporary obstetrics is to produce optimally healthy babies (Miringoff, 1991: 53). Since fetal gene therapy is currently impossible, prenatal genetic testing can only serve this purpose by facilitating the termination of fetuses with ‘abnormal’ genes. It has been argued that disease is then tackled by selection rather than by research into treatment and cures (Cao, 1991). Furthermore, by reducing the numbers, and hence the visibility of people with disabilities, it has been suggested that there may be less pressure to provide practical assistance and to investigate new treatments (Malinowski, 1994: 1468). Since it is obviously much cheaper to detect a fetal abnormality and terminate the pregnancy than it is to provide medical treatment and care for someone born with a genetic disease, there are those who believe that prenatal diagnosis could be used routinely in order to reduce the long-term costs to the state of certain diseases (Knoppers and Laberge, 1991: 48). It is not clear that restricting prenatal diagnosis or abortion would necess­ arily improve the lives of disabled people, but even if these arguments were to be accepted, they could not, in my opinion, provide a legitimate justifi­ cation for requiring a particular woman to go through pregnancy and child­ birth against her wishes. Forcing a woman to continue an unwanted pregnancy to term in order to achieve a shift in social attitudes or in scien­ tific priorities would represent a marked exception to the current trend in medical law of treating patient autonomy as the overriding consideration. Indeed in relation to a refusal or treatment, it is well established that the possibility that harm may result if a competent adult patient exercises her right to self-determination does not offer a sufficient reason to infringe her autonomy. For example, a competent adult Jehovah’s witness is entitled to refuse a life-saving blood transfusion, even if her decision would cause direct and foreseeable harm to her dependents. Third, it has been suggested that developments in prenatal screening tech­ nologies may create new standards of perfection. Daniel Callahan has argued that behind the human horror at genetic defectiveness lurks, one must suppose, an image of the perfect human being. The very language of ‘defect’, ‘abnormality’, ‘disease’ and ‘risk’ presupposes such an image, a kind of prototype of perfec­ tion. (quoted in Miringoff, 1991: 53)

Furthermore, it has been pointed out that wealthier women undergo more prenatal testing, and that this is the case even where there is no charge for

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screening services (Lippman, 1991). It has therefore been argued that certain diseases may increasingly correlate with socioeconomic status, leading to the creation of a'biological underclass'(Nelkin andTancredi, 1994:176). Genetic privilege, it has been suggested, could be added to the many advantages already enjoyed by children born to financially secure parents (Kitcher, 1997: 125). It has even been contended that diseases and disabilities which used to be simply unfortunate facts of nature could, as a result of routine prenatal testing, be regarded increasingly as matters of voluntary choice.14 While there may be some merit in pointing out the existence of ethical dilemmas immanent in the expansion of prenatal screening, potential prob­ lems are not necessarily best addressed through restrictive regulation. Limit­ ing access to prenatal tests, or to abortion after a positive result is unlikely to transform attitudes to disability. Most diseases and disabilities are not the result of genetic abnormalities, but are instead caused by poverty, accidents, war or exposure to environmental hazards (Helium, 1993: 127; Wertz, 1997: 339). Hardly any illnesses or abnormalities could plausibly be eliminated by genetic screening, and in my opinion, the most compelling danger inherent in the expansion of prenatal testing is the widely held misapprehension that genetic knowledge will provide miraculous solutions to disease and disabil­ ity. For a very few diseases, such as Huntington's disease, identification of an abnormal gene does provide a decisive diagnosis (Lippman, 1991). Because Huntington's disease is monogenic, that is it is caused only by this abnormal gene, eliminating it is conceivable (Kitcher, 1997). If all fetuses with the genetic mutation that causes Huntington's disease were to be aborted and no babies were born with the relevant gene, it could not be passed on to the next generation and would disappear. H untington’s disease is therefore often cited by those who want to suggest the revolutionary possibilities of prenatal genetic screening. It is, nevertheless, exceptional (Cook-Deegan, 1991). Single-gene disorders are extremely rare, and they are the only ones that are susceptible to a simple genetic ‘solution’. Most diseases can be the result of the interaction between several genes, and/or the interaction between the genotype and the environ­ ment, or they may be triggered by purely environmental factors. Although genetic markers for certain cancers have been identified, 95 percent of people who develop colon or breast cancer do not have the particular genetic muta­ tion thought to confer an increased risk (Kitcher, 1997: 62). Conversely, those who have the relevant genetic marker do not necessarily develop cancer as a result. Prenatal screening for a genetic predisposition to certain cancers would have limited impact upon their population-wide incidence. In spite of the ambiguity offered by most genetic tests, as Philip Kitcher explains, there is an inordinate interest in the possibility of genetic solutions to common human problems: unfortunately, as is clear from recent discussions of a biological basis for sex roles, sexual orientation, criminality and sex differences in intelligence, many people

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have a credulous fondness for stories that oversimplify complex phenomena. (Kitcher, 1997: 152)

Most human characteristics are not susceptible to simple causal explanations, but their appeal is considerable (Watts, 1999). Mental retardation, for example, may be the result of a genetic disease, environmental factors such as poor nutrition, lack of prenatal and postnatal care, inadequate education, or a combination of genetic susceptibility and environment. Addressing one possible genetic cause by aborting fetuses with the genetic mutation respons­ ible for fragile X syndrome individualizes the problem of mental disability and diverts attention from more complicated and expensive solutions to poverty and childhood deprivation. Moreover, since only 6 percent of people with learning disabilities actually suffer from fragile X syndrome, the poten­ tial of genetic screening is necessarily limited. Reducing poverty levels would radically alter the physical and mental health of the population to an extent unimaginable through genetic testing. But tackling causes of illness such as endemic poverty will never have the seductive appeal of a genetic solution to disability or disease (Brooks, 1998). I would suggest that it is right to point out the practical limitations of pre­ natal diagnosis as a disease-prevention strategy, but that the inevitable imper­ fection of genetic knowledge does not mean that access to it should be restricted nor that abortion after an inexact diagnosis should be prohibited. The fact that a pregnancy is unwanted as a result of incomplete information does not, in my opinion, provide a legitimate reason to compel a woman to carry that pregnancy to term. Instead of representing grounds for their restriction, the lack of precision in the results of prenatal genetic tests indi­ cates a need for sensitive and intelligible medical advice. Until recently it was only possible to diagnose existing fetal handicap. After a conventional diagnosis of fetal abnormality, the decision may be emotionally fraught, but it is comparatively simple to understand: if this pregnancy were to be carried to term, the resulting child would have the identified disability. But where the prenatal test reveals an abnormal gene, it does not necessarily mean the development of a disabling condition. Preg­ nant women may then be warned that, if carried to term, there would be some statistical risk that the resulting child would suffer from a particular abnor­ mality. In addition to the imprecision of genetic risk, tests may not be able to predict the severity of any disability, and the age of onset may be similarly unknowable (Tomlinson, 1998: 559). Given the complexity, uncertainty and novelty of genetic diagnosis it is almost impossible to digest and evaluate without professional assistance (Low et al., 1998; Skene, 1998; Warnock, 1998). After a prenatal test that reveals a genetic abnormality, most pregnant women will be guided by medical advice. And non-directive counselling which lays out the options available to prospective parents is often regarded as an essential adjunct of genetic testing (Modell, 1994). But Robert Wachbroit and David Wassermen have argued that, ‘in the context of genetic counselling,

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value neutrality is impossible’ (1995: 103). Indeed it has been suggested that currently health professionals are not following a policy of non-directiveness in genetic counselling, and furthermore that those being counselled may actu­ ally prefer to receive some directive advice (Michie et al., 1997). But while it may be implausible and even undesirable to expect medical advice to be entirely neutral, non-directive counselling in other areas of health care prac­ tice usually rests upon the assumption that the person being counselled will ultimately make his or her own choice in the light of the information given. In the context of HIV testing, the ethical probity of pretest counselling would be rightly challenged if the final decision about whether or not to be tested actu­ ally rested with the individuals medical practitioner. So in the context of coun­ selling after prenatal diagnosis, it would seem obvious that the decision to have an abortion must belong to the pregnant woman rather than her doctor. But, as I have explained, under the Abortion Act this is not the case and the abor­ tion decision belongs, in law, to two medical practitioners. The lack of respect for patient autonomy embodied in s. 1( 1) of the Abor­ tion Act is usually obscured because the doctors’ decision-making role is con­ fined to the approval of a choice that the pregnant woman has already made. But because a woman who has undergone prenatal genetic testing may need professional advice in order to decide whether or not to terminate her preg­ nancy, the legal requirement that two medical practitioners sanction her decision may expose more starkly an absence of patient control over the abortion decision.

SEX S E L E C T IO N

As a result of technological developments it is becoming possible to identify the sex of a fetus increasingly early in pregnancy. If fetal sex can be identified at 12 weeks (Gosden, 1999: 151), sex-selective abortion is a relatively simple procedure. Without the limits of technology serving as a practical obstacle to the routine use of sex-selective termination, there have been suggestions that restrictive legislation might be needed (Danis, 1995). In this section I examine the translation of prevailing unease about sex-selective abortion into legis­ lative prohibition. The sex of a fetus may be widely believed to be a ‘bad’ or an ‘insufficient’ reason for abortion (Modell and Modell, 1992: 187), but I intend to argue that this does not justify using the law to control access to sex-determination tests or abortion services. As Judge LJ argued in St George's Healthcare N H S Trust v S, the autonomy of each individual requires continuing protection . . . particularly when the motive for interfering with it is readily understandable, and indeed to many would appear commendable, (at 953)

Although sex-selective abortion is a relatively new phenomenon, attempts to determine and control the sex of one’s offspring have always existed.

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Anaxagoras, a Greek philosopher alive in 500 BC, recommended tying off the left testicle prior to sexual intercourse to guarantee male children (Danis, 1995: 220). Aristotle advised women to lie on their right side after intercourse in the belief that males develop in the right side of the uterus (Danis, 1995: 224). Other early techniques included the consumption of lion’s blood, vig­ orous copulation and biting the woman’s ear during intercourse (Jones, 1993: 193). Although these primitive sex-selection methods were superstitious and ineffective, there were other practices that guaranteed the presence of more boys than girls in the population. Female infanticide has been practiced for centuries in countries such as India where daughters are an economic and a social burden (Weiss, 1996). A more subtle cause of the population imbalance is the greater care for, and interest in, male children (Weiss, 1996). In India, for example, there are gender differentials between food allocation and access to clothing and medical care, especially during the first few years of life. As a result the mortality rate for girls between one and four years of age is three times that for boys (Bhlakrishnan, 1994: 274; Wallerstein, 1998: 1546). In the 1950s scientists discovered that centrifugal forces could operate to separate androgenic and gynegenic sperm (Jones, 1993:196). A woman could then be artificially inseminated with androgenic sperm, significantly increas­ ing the chance that her fetus would be male (Jones, 1993). And with the development of in vitro fertilization techniques and pre-implantation diag­ nosis, doctors are able to implant only embryos of the desired sex. Both sperm separation and pre-implantation sex selection are complicated pro­ cedures necessitating specialist medical services. Moreover, pre-implantation diagnosis is regulated by the Human Fertilisation and Embryology Auth­ ority and is only permitted for therapeutic reasons. It is clearly much more straightforward to determine fetal gender through amniocentesis or ultra­ sound and terminate the pregnancy if it is the ‘wrong’ sex. Although preference for sons may not be confined to South Asian coun­ tries (Cherry, 1995: 171; Gosden, 1999: 71), in China, Vietnam and parts of India and Pakistan it is extremely common (Weiss, 1996: 113). There is a complex network of reasons why boys may be perceived to be more valuable than girls. For example, some religious practices specifically exclude women, and a family may need a son in order to participate fully in Confucian ances­ tor worship (Hoa et al., 1996). In India married women leave their family home in order to live with their husband’s family and, despite its illegality, they must often bring some form of dowry (Rajan, 1996). Men can earn more, inherit property, have access to their wife’s dowry and are expected to support their parents through old age. Sons then represent a net gain to a family and daughters a net loss (Das Gupta, 1987). Moreover, a wife’s purpose is to provide sons, and a woman who repeatedly gives birth to daughters is regarded as a failure (Agnes, 1995:177; Das Gupta, 1987: 94). In China, popu­ lation control policies limiting the number of children in each family have intensified the desire for male children. Couples with a daughter are now per­ mitted to have one more child, but if the second child is also female, the

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couple are not allowed to 'keep trying’. As a result there is a strong demand for sex-selective abortion services, especially during second pregnancies (Rigdon, 1996: 551). It has been suggested that any gender imbalance that resulted from per­ mitting sex selection would be inevitably ‘self-correcting’ (Robertson, 1996: 459), since [t]he next generation would put a premium on producing children of the gender required to remove the imbalance. (Harris, 1998: 192)

This argument, although logical, is clearly misguided: there has been a gender imbalance in some countries for centuries, and it has not ‘self-corrected’ because its roots are too deeply culturally entrenched. In India in the 19th century it was reported that the Ranas caste had had no adult daughters for more than 100 years (Gosden, 1999: 149). There is a shortage of women in parts of China and N orthern India (CRLP, 1995; Mudur, 1999), but this does not increase women’s status or the ‘premium’ put upon the birth of girls in these societies. Sex-specific abortion, which invariably results in the termination of female fetuses, raises a complicated dilemma for feminists who may be in favour of liberal abortion laws, but may also feel uncomfortable about a pregnancy being defined as unwanted because it would lead to the creation of a girl (Cherry, 1995: 166). Termination of female fetuses generally exists as a result of pervasive cultural devaluation of women, so it is unsurprising that many feminists should think that this is a ‘bad’ reason to terminate a pregnancy. But, as I shall argue below, it does not necessarily follow that sex-selective abortions should be prohibited. Yet pressure to pass legislation outlawing termination on the grounds of sex preference is mounting. The 1994 United Nations Cairo Conference on Population and Development urged countries to prohibit prenatal sex selec­ tion (Danis, 1995: 259), and throughout the world there have been attempts to make abortion on the grounds of sex unlawful. Despite its relative infre­ quency in the United States, a few states do specifically prohibit sex-selective abortion .15 In India, legislative activity has concentrated upon restricting access to prenatal diagnosis techniques (Agnes, 1995:183), and under the PreNatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act 1994 it is illegal to advertise or perform sex-determination tests (Rajan, 1996: 8). Although some would argue that such legislation has a valuable symbolic function (Rajan, 1996: 11), its practical impact has been limited. In the first five years of its operation, there have been no convictions under the Indian statute (Mudur, 1999: 401). I would argue that there are two reasons why using the law to restrict pre­ natal sex selection is unlikely to be effective. First, if the desire for sexdetermination tests and abortion is strong, banning them will not remove the demand for such services. Instead, as has happened in India, prohibition inevitably results in a flourishing black market in testing and abortion

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(Menon, 1993; Mudur, 1999). In India the results of the test are invariably given orally, and without written evidence it has proved impossible for enforcement agencies to bring actions under the statute (Mudur, 1999: 401). Second, women whose reason for abortion has been deemed unlawful will often be able to find a lawful reason for the same abortion. In the same way as British women who want abortions must fit their ‘reasons’ into the legis­ lative framework of the Abortion Act 1967 by stressing the risks to their physical or mental well-being, so women who wish to abort female fetuses may give reasons that satisfy the terms of the relevant legislation. Sex-selective abortion may be a particularly emotive symbol of entrenched sex inequality, but it makes little sense to tackle sex-selective abortion in iso­ lation from the other social, economic and legal practices that devalue women’s lives (Bhlakrishnan, 1994: 276). For example, in India banning diag­ nostic techniques has not reduced the preference for sons, which is deter­ mined not by the availability of prenatal tests but by the inheritance system, the payment of dowry and wage differentials. Restricting access to infor­ mation that is so economically and socially valuable will not make that infor­ mation disappear: it will simply make it more expensive and the resulting abortions less safe (Bhlakrishnan, 1994: 279; Rajan, 1996: 10). It is the legal, cultural and religious significance of information, rather than its existence, that is the problem. Sex-selective abortion represents a powerful example of the implausibility of separating reproductive choices from the web of social networks within which decisions must be taken. But recognizing that a preference may be socially constructed does not necessarily mean that it should be ignored. The decision to abort a fetus because it is female may only be comprehensible in the light of a deeply embedded cultural and economic preference for sons, but that does not make an individual woman’s choice less real or compelling. O f course there may be circumstances in which a woman’s consent to a sexselective abortion has been obtained by duress or undue influence, and so could not be said to be her own decision. And, given the precarious econ­ omic and social circumstances of many of the women seeking sex-selective abortions, separating real from coerced decisions may sometimes be extremely difficult. But where a competent adult woman has made her own decision that she wishes to terminate a particular pregnancy, restricting her access to abortion may be incompatible with a strong commitment to the principle of self-determination.

C

o n c l u s io n

Recent developments in the common law appear to show a remarkable judicial consensus on the overriding importance of an individual’s right to make his or her own medical decisions. And one of the most significant features of this principle of patient self-determination is that it extends to decisions that might be regarded as foolish, irrational or immoral. This is in

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direct and stark contrast to the abortion legislation which makes access conditional upon two doctors’ approval of a woman’s reasons for wanting to terminate her pregnancy. Rapid expansion in the breadth and availability of information about the developing fetus has led to increasing disquiet about abortion after prenatal diagnosis. Demands for the regulation of abortion in such circumstances pre­ suppose that it is both possible and legitimate to draw a line between con­ ditions or characteristics that do or do not provide adequate justification for abortion. Indeed, opinion polls showing growing disapproval of abortion for fetal abnormality demonstrate that a woman’s reasons for abortion are gener­ ally regarded as a matter of public interest and debate. But one could imagine that public opinion might also strongly disapprove of S.’s decision to refuse a caesarean section. Nevertheless the Court of Appeal was adamant that S.’s right to make her own decision about her medical treatment was not dimin­ ished by its ‘repugnance’. If the law’s profound disinterest in the moral reprehensibility of a competent adult patient’s decisions about her treatment extends to decisions that will inevitably cause the death of a full-term fetus, the Abortion Act’s continued reliance upon a qualitative assessment of the woman’s reasons for wanting to terminate her pregnancy seems both anomal­ ous and illegitimate. N otes 1.

2.

3.

W h ile A rticle 2 o f the E u rop ean C o n v e n tio n states that ‘e v e r y o n e ’s right to life shall be p r o tected b y la w ’, it is u n lik e ly that th is w ill be in terp reted to give the fetu s a righ t to life. In Paton v United Kingdom [1980] 3 E H R R 408, the E u r o ­ pean C o m m iss io n o f H u m a n R igh ts stated , at 415: ‘T h e “life ” o f th e fo e tu s is in tim a tely c o n n e c te d w ith , and ca n n o t be regarded in iso la tio n from , the life o f the p regn an t w o m a n . If article 2 w ere h eld to cover the fo e tu s and its p r o te c tio n u n d er th is article w ere, in th e ab sen ce o f a n y express lim ita tio n , seen as ab so lu te, an a b o r tio n w o u ld have to be con sid ered as p ro h ib ite d even w h ere th e c o n tin u a n ce o f the p reg n a n cy w o u ld in v o lv e a serio u s risk to the life o f th e p regn an t w o m a n . T h is w o u ld m ean that th e “u n b o rn life ” o f the fo e tu s w o u ld be regarded as b ein g o f a h igh er valu e than the life o f the p regn an t w o m a n ’. In su m m a rizin g th e d e c isio n o f th e C o m m is­ sio n in Paton , B a lco m b e LJ in Re F (in utero) [1988] Fam . 122 said that ‘o n its true co n str u c tio n article 2 is apt o n ly to ap p ly to p erso n s already b o rn and ca n n o t ap p ly to a fo e tu s ’ (at 142). In th is article I in ten d to con cen trate u p o n the c o m m o n law, and I shall n o t d iscu ss the H u m a n R igh ts A c t 1998 in an y detail. T h e reason for this o m issio n is that th e te n sio n b e tw e en A rticle 2 (th e righ t to life) and A rticle 8 (th e righ t to p rivacy) is b etter d iscu ssed w ith in th e c o n te x t o f rights ju risp ru d en ce, w h ic h is b e y o n d th e sc o p e o f th is article. In Paton v Trustees o f the BPAS [1979] Q B 276, Sir G eo rg e B aker P (at 279) said ‘T h e fo e tu s can n o t, in E n g lish law, in m y view , have an y righ t o f its o w n at least u n til it is b orn and has a separate ex isten ce from the m o th er’. C o n fir m ed in In Re F (in utero) [1988] Fam . 122; Burton v Islington H A [1993] Q B 204; Attorney General's Reference (No. 3 o f 1994) [1998] A C 245. Sir T h o m a s B in gh am M R in th e C o u r t o f A p p ea l ju d g m en t in Airedale N H S Trust v Bland [1993] A C 789 at 808.

541

Abortion J a c k s o n : A b o r t io n , A u t o n o m y

4.

5.

6.

7.

8. 9.

10. 11. 12.

and

P ren a ta l D ia g n o sis

489

In A v Smith [1974] 1 A ll E R 376, th e o n ly rep o rted case in v o lv in g p r o se c u tio n u n d er the A b o r tio n A c t 1967, th e e v id en ce in d ica ted th at th e d o c to r had failed to carry o u t an intern al e x a m in a tio n and had m ad e n o in q u iries in to her p er­ so n a l situ a tio n . T h ere w as a c o n flic t o f e v id en ce o n w h eth er th e d o c to r w h o gave th e se c o n d o p in io n had ex a m in ed th e p atien t. T h e d o c to r w a s c o n v icte d o n th e basis that he had n o t attem p ted to b alan ce th e risks o f p r e g n a n cy and term in a tion . In Saxby v Morgan [1997] 8 M ed L R 293 a w o m a n w h o w a n ted to term in ate her p reg n a n cy w as to ld b y her d o c to r that h er p r e g n a n c y w a s to o far advan ced. In fact sh e w a s o n ly b e tw e e n 18 and 19 w e e k s p regn an t, clearly w ith in th e tim e lim its in th e A b o r tio n A c t. H e r a ctio n in n e g lig e n c e failed b ecau se it w a s o u t o f tim e. M o st o f th em p erfo rm ed o n w o m e n fr o m e th n ic m in o r itie s (G allagher, 1987). W h ile th is d ifferen ce can be p a rtly ex p la in ed b y racial d iscrim in a tio n , it also reflects d ifferen ces b e tw e e n w o m e n 's e c o n o m ic circu m stan ces. A ll o f th e p a tien ts su b ject to n o n -c o n se n s u a l in te rv e n tio n s w e re b e in g treated in p u b lic h o sp ita ls. It g o e s w ith o u t sa y in g that d o c to r s w o u ld b e less lik e ly to seek co u rt a u th o riz a tio n for treatm en t again st th e w is h e s o f a fe e -p a y in g clien t. It m ig h t be in terestin g to c o n sid e r th at Re A C , th e first d e c is io n to reassert th e p rim a cy o f p a tien t a u to n o m y , in v o lv e d a w h ite m id d le -cla ss w o m a n . It is u n lik e ly that S’s situ a tio n c o u ld have b e e n d istin g u ish e d fro m A n g ela C arder's as ‘tru ly extraord in ary or c o m p e llin g ' sin ce A n g e la C arder's p o s itio n w a s d esp era tely seriou s. She w as in th e late stages o f can cer and d ied tw o days after the caesarean section ; th e ch ild d ied w ith in t w o h o u rs o f th e o p era tio n . H er d eath certificate listed th e caesarean se c tio n as a fa cto r that c o n tr ib u te d to her death. In th e G eo r g e W a sh in g to n U n iv e r s ity M ed ica l C en ter's se ttlem e n t w ith A n g ela C arder's p aren ts, th e h o sp ita l a d m in istrator C h ristin St A n d re stated that ‘w e str o n g ly b e lie v e that d ifficu lt m ed ica l d e c is io n s sh o u ld be m ad e w ith in th e d o c to r /p a tie n t rela tio n sh ip and n o t b y th e cou rts' (q u o ted in G allagher, 1995: 360). A n g ela C arder's case w a s su b s e q u e n tly d ram atized o n L A Law , b u t in th e te le v is io n v e r s io n th e b a b y su rv iv es (P o llitt, 1995: 170). T h e H u m a n T issu e A c t 1961 s. 1. In Re M B it w a s su g g ested th at te m p o ra r y fa ctors ‘in c lu d in g pan ic b r o u g h t o n b y fear' c o u ld c o m p le te ly ero d e capacity. In N orfolk and Norwich N H S Trust v Wy a lth o u g h W w a s n o t su fferin g fr o m a m en tal d isord er, it w a s h eld th at th e p ain and e m o tio n a l stress o f la b o u r p r e v en ted th e w o m a n fr o m w e ig h in g th e in fo r m a tio n in th e b alan ce and arriving at a c h o ice . T h is h earin g w a s in terru p ted so that J o h n so n J c o u ld hear Rochdale Healthcare N H S Trust v C , a sim ilar a p p lica tio n in resp ect o f an o th er p a tien t in w h ic h , after a tw o -m in u te ex parte h earin g, d esp ite h avin g n o p sy ch ia tric e v id en ce as to h er capacity, J o h n so n J. o v erru led h er o b stetr icia n ’s fin d in g o f c o m p e te n c e . S o a lth o u g h th e o n ly h ea lth ­ care p ro fe ssio n a l w h o had b e e n c o n su lte d said that C 's c o m p e te n c e w a s n o t in q u e s tio n and that sh e w as in fact fu lly c o m p e te n t, J o h n so n J again h eld th at as a resu lt o f th e pain and e m o tio n a l stress o f labou r, sh e w a s n o t capable o f w e ig h ­ in g up th e in fo r m a tio n sh e w a s given . A d d itio n a lly J o h n so n J in d icated th at the c o u rt has th e p o w e r at c o m m o n la w to a u th o riz e th e u se o f reason ab le fo r ce in ord er to carry o u t a caesarean se c tio n . P r o h ib itio n o f F em ale C ir c u m c isio n A c t 1985. H u m a n O rg a n T ransplants A c t 1989. In Airedale N H S Trust v Bland [1993] A C 789, L ord G o ff said ‘I m u st h o w e v e r stress, at this p o in t, that th e la w d raw s a cru cial d istin c tio n b e tw e en cases in w h ic h a d o c to r d ecid es n o t to p r o v id e , o r to c o n tin u e to p ro v id e, for his p atien t trea tm en t o f care w h ic h c o u ld or m ig h t p r o lo n g h is life, and th o s e in w h ic h h e

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13.

14. 15.

So c ia l & L eg a l Stu d ies 9 ( 4 )

d ecid es, for exam p le b y a d m in isterin g a leth al drug, activ ely to bring his p a tie n t’s life to an e n d ’ (at 865). Sir T h o m a s B in g h a m ’s su g g estio n th at ‘[a] m ed ical p ra ctition er m u st c o m p ly w ith clear in stru ctio n s g iven b y an adu lt o f so u n d m in d as to th e treatm ent to be g iv e n ’ appears to e n d o rse a righ t to p a tien t a u to n o m y m o re ex ten siv e than a m ere righ t o f v e to (Airedale N H S Trust v Bland, [1993] A C 789 at 808). T h ere is n o t space here to c o n sid e r th e o b v io u s insu ran ce im p lica tio n s o f this su g g estio n . A P en n sy lv a n ia statu te states that ‘n o a b o rtio n . . . so u g h t so le ly becau se o f the sex o f th e u n b o r n ch ild shall be d e e m ed a n ecessa ry a b o r tio n ’ 18 P A C o n s. Stat. A n n . §3204(a)1983. A n d a statu te in Illin o is p ro h ib its a b o rtion s p erform ed ‘w ith k n o w le d g e that the p regn an t w o m a n is seek in g th e ab o rtio n so le ly on a cco u n t o f the sex o f th e fe tu s ’ 111 A n n . State. C h . 720 para 5 1 0 /8 1993.

C

a ses

C

it e d

Airedale N H S Trust v Bland [1993] A C 789. Attorney General's Reference (No. 3 o f 1994) [1998] A C 245. Burton v Islington H A [1993] Q B 204. Re A C [1990] 573 A 2d 1235. R e ] (A minor)(Medical Treatment) [1991] F am 33. Re F (in utero) [1988] F am 122. Re M B (An Adult: Medical Treatment) [1997] 2 F L R 426. Re S (Adult)(Refusal o f Medical Treatment)[\997>\ F am 123. Re T (Adult: Refusal o f Treatment) [1993] F am 95. Norfolk and Norwich N H S Trust v W [1996] 2 F L R 613. Patón v Trustees o f the BPAS; [1979] Q B 276. Patón v United Kingdom [1980] 3 E H R R 408. Rochdale Healthcare N H S Trust v C [1997] 1 F C R 274. St George's Healthcare N H S Trust v S [1998] 3 W L R 936. Saxby v Morgan [1997] 8 M ed L R 293.

R eferen c es A d ler, N a n cy , Susan K ey es and P atricia R o b e r tso n (1991) ‘P sy c h o lo g ic a l Issu es in N e w R ep ro d u ctiv e T ech n o lo g ies: P reg n a n cy In d u cin g T e c h n o lo g y and D ia g ­ n o stic S creen in g’, pp. 1 1 1 -3 3 in J u d ith R o d in and A ila C o llin s (eds) Women

and N ew Reproductive Technologies: Medicaly Psychological Legal and Ethical Dilemmas. H illsd a le , N J: L aw ren ce E rlb aum . A g n es, F lavia (1995) State , Gender and the Rhetoric o f Law Reform. B om b ay: R esearch C en tre for W o m e n ’s Stu d ies. A m u , O lu b u so la , Sasha R ajendran and Ib rah im B olaji (1998) ‘M aternal C h o ic e A lo n e sh o u ld n o t D e ter m in e M e th o d o f D e liv e r y ’, British Medical Journal 317: 4 6 3 -5 . A u d it C o m m iss io n (1997) First Class Delivery: Improving Maternity Services in England and Wales. A b in g d o n : A u d it C o m m is s io n P u b lication s. B h lak rish n an , R ad hika (1994) ‘T h e S ocial C o n te x t o f S e x -S e lec tio n and th e P o litics o f A b o r tio n in In d ia’, pp . 2 6 7 - 8 6 in G ita Sen and R ach el S n o w (ed s) Power and Decision: The Social Control o f Reproduction. C a m b rid ge, M A : H arvard U n i ­ v e rsity Press. B ritish P regn an cy A d v is o r y Service (1 9 9 9 ) Pricelist o f Services. L on d o n : B PA S.

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543 and

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B r o o k s, A le x (1998) ‘M en ta lly 111 P atien ts N e e d P r o te c tio n fr o m In ap p rop riate G en etic T estin g ’, British Medical Journal 316: 903. B r o w n , S tep h en (1994) ‘M atters o f L ife and D ea th : T h e L a w and M e d ic in e ’, MedicoLegal Journal 62: 5 2 -6 1 . C a o , A n to n io (1991) ‘A n ten a ta l D ia g n o s is o f B -th a la ssem ia in S ard in ia’, p p . 7 2 - 7 in Z. B a n k o w sk i and A . M . K ap ron (ed s) Genetics , Ethics and Human Values: Human Genome Mapping , Genetic Screening and Gene Therapy, Proceedings o f the X X IV th C I O M S Round Table Conference. G en eva: C IO M S . C en tre fo r R e p r o d u ctiv e L a w and P o lic y (C R L P ) (1 9 9 5 ) VIomen o f the World: Laws and Policies Affecting their Reproductive Lives. N e w Y ork: C R L P . C o o k -D e e g a n , R o b er t M u llan (19 9 1 ) ‘P u b lic P o lic y Im p lic a tio n s o f the H u m a n G e n o m e P ro je ct’, p p . 5 6 -7 1 in Z . B a n k o w s k i and A . M . K ap ron (ed s) G enet­

ics, Ethics and Human Values: Human Genome Mapping, Genetic Screening and Gene Therapy, Proceedings o f the X X IV th C IO M S Round Table Confer­ ence. G en eva: C IO M S . C h erry, A p ril (1995) ‘A F em in ist U n d e r s ta n d in g o f S e x -se lec tiv e A b o rtio n : S o le ly a M atter o f C h o ic e ? ’, Wisconsin Women's Law Journal 10: 1 6 1 -2 2 3 . C u m b erled g e, J. (1 9 9 3 ) Changing Childbirth. L o n d o n : HMSO. C u n n in g h a m -B u rley , Sarah (1 9 9 8 ) ‘U n d e rsta n d in g D is a b ility ’, Progress in Reproduc­ tion 2: 1 0 -1 1 . D a n is, J o d i (1 995), ‘Sexism and “T h e S u p erflu ou s F e m a le ”: A r g u m e n ts fo r R eg u latin g P re-Im p la n ta tio n Sex S e lec tio n ’, Harvard Women's Law Journal 18: 2 1 9 -6 4 . D a s G u p ta , M o n ica (1 9 8 7 ) ‘Selectiv e D isc r im in a tio n A g a in st F em ale C h ild re n in R ural P unjab In d ia ’, Population and D evelopm ent Review 13: 9 0 - 5 . D e G am a, K ath erin e (1993) ‘A B rave N e w W orld ? R ig h ts D is c o u r s e and th e P o litics o f R e p r o d u ctiv e A u t o n o m y ’, pp . 1 1 4 -3 0 in A . B o tto m le y and J. C o n a g h a n (ed s) Feminist Theory and Legal Strategy. O x fo rd : B la ck w e ll. D e p a r tm en t o f H e a lth (1999a) Consent to Treatment: Summary o f Legal Rulings H S C 1 9 9 9 /0 3 1 19 F eb ru ary 1999. D e p a r tm en t o f H e a lth (1 9 9 9 b ) Abortion Statistics 1998. L o n d o n : H M S O . D o y a l, L en (1998) ‘In fo rm ed C o n se n t: A R e sp o n se to R e ce n t C o r r e sp o n d e n c e ’, British Medical Journal 316: 1 0 0 0 -1 . D r ife , Jam es (1997) ‘M a tern ity Services: T h e A u d it C o m m is s io n R e p o r ts’, British Medical Journal 314: 844. D w o r k in , R o n a ld (1993) Life's Dominion: A n Argum ent about Abortion and Euthanasia. L o n d o n : H a rp er C o llin s. D y e r, C lare (1 9 9 8 ) ‘T rusts F ace D a m a g es after F o rc in g W o m e n to have C a esarean s’, British Medical Journal 316: 1477. F ie ld , M artha (1993) ‘K illin g th e H a n d ic a p p ed - B e fo re and A fte r B irth ’, Harvard Women's Law Journal 16: 7 9 -1 3 8 . F u red i, A n n (1998) ‘W ro n g b u t the R ig h t T h in g to D o : P u b lic O p in io n and A b o r ­ tio n ’, pp . 1 5 9 -7 1 in E llie L ee (ed .) Abortion Law and Politics Today. L o n d o n : M acm illan . G allagher, Janet (1987) ‘Prenatal In v a sio n s and In terv en tio n s: W h a t’s W ro n g w ith F etal R ig h ts? ’, Harvard Women's Law Journal 10: 9 -4 1 . G allagher, Janet (1 9 9 5 ) ‘C o lle c tiv e B ad Faith: “P r o te c tin g th e F e tu s ’” , pp . 3 4 3 -7 9 in J. C allah an (ed .) Reproduction, Ethics and the Law: Feminist Responses. B lo o m in g to n : In d ian a U n iv e r sity P ress. G erick e, G . (1990) ‘T h e R o le o f H u m a n G e n e tic s in S o ciety : Im p lic a tio n s fo r L egal In v o lv e m e n t’, Medicine and Law 9: 9 3 0 -8 . G illigan , C arol (1982) In a Different Voice. C am b rid ge, M A : H arvard U n iv e r sity Press. G illo n , R anaan (1985) Philosophical Medical Ethics. C h ich ester: W iley. G lo v er, J on ath an (1 9 7 7 ) Causing Death and Saving Lives. L o n d o n : P en g u in .

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G lover, J o n ath an (1999) ‘E u g en ics and H u m a n R ig h ts’, p p .1 0 1 -2 4 in J. B u r ley (ed.) The Genetic Revolution and Human Rights. O x fo rd : O x fo rd U n iv e r sity Press. G o sd e n , R o g er (1999) Designer Babies , The Brave N ew World o f Reproductive Tech­ nology. L on d on : G o lla n c z . G ru b b , A n d r e w (1999) ‘C o m m e n ta r y ’, Medical Law Review 7: 5 9 -6 1 . Harris, John (1998) Clones , Genes and Immortality: Ethics and the Genetic Revol­

ution. Oxford: Oxford University Press. H arris, J o h n (1999) ‘C lo n e s, G en es and H u m a n R ig h ts’, pp . 6 1 -9 4 in J. B u rley (ed.) The Genetic Revolution and Human Rights. O x fo rd : O x fo r d U n iv e r sity P ress. Helium, Anne (1993) ‘N ew Reproductive Technologies in an Ecological Perspective’, pp. 1 2 5 -3 5 in A. Helium (ed.) Birth Law. Oxford: Oxford University Press. H o a , H . T., N . V. T oan, A . J o h a n sso n , V. T. H o a , B. H o je r and L. A . P ersso n (1996) ‘C h ild sp acin g and tw o ch ild p o lic y in p ractice in rural V ietnam : cross sectio n a l su rv e y ’, British Medical Journal 313: 1 1 1 3 -1 6 . H o lm e s , H e le n B eq u aert (1995) ‘C h o o s in g C h ild r e n ’s Sex: C h a llen ges to F em in ist E th ic s’, pp . 1 4 8 -7 7 in J. C allah an (ed .) Reproduction , Ethics and the Law: Feminist Responses. B lo o m in g to n and In d ian ap olis: In diana U n iv e r sity Press. Ik o n o m id is, S h aron and P eter Sin ger (1 9 9 9 ) ‘A u to n o m y , L iberalism and A d v a n ce C are P la n n in g ’, Journal o f Medical Ethics 25: 5 2 2 -7 . J o n es, O w e n (1993) ‘R e p r o d u ctiv e A u t o n o m y and E v o lu tio n a r y B io lo g y : A R e g u ­ la to ry F ra m ew o rk for T ra it-S electio n T e c h n o lo g ie s’, American Journal o f Law and Medicine 19: 1 8 7 -2 3 1 . Keown, John (1988) Abortion , Doctors and the Law: Some Aspects o f the Legal

regulation o f Abortion in England from 1803-1982. Cambridge: Cambridge

University Press. K itcher, P h ilip (1997) The Lives to Come: The Genetic Revolution and Human Possi­ bilities. L o n d o n , P en gu in . K n o p p ers, Bartha M aria and C la u d e L aberge (1991) ‘T h e Social G eo g r a p h y o f H u m a n G e n o m e M a p p in g ’, pp . 3 9 -5 5 in Z. B a n k o w sk i and A .M . K ap ron (eds) Genetics , Ethics and Human Values: Human Genome Mappings Genetic

Screening and Gene TherapyyProceedings o f the X X IV th C IO M S Round Table Conference. G eneva: C IO M S . Lattim er, M axin e (1998) ‘D o m in a n t Id eas V ersus W o m e n ’s R eality: H e g e m o n ic D i s ­ co u rse in B ritish A b o r tio n L a w ’, p p . 5 9 -7 5 in E llie L ee (ed.) Abortion Law and Politics Today. L on d on : M acm illan . Law , S ylv ia (1994) ‘S ilen t N o M ore: P h y sic ia n s’ L egal and E thical O b lig a tio n s to P atien ts S eek in g A b o r tio n s ’, N ew York University Review o f Law and Social Change 21: 2 7 9 -3 2 1 . L ee, E llie and Jen n y D a v e y (1998) Attitudes to Abortion fo r Fetal Abnormality. C a n ­ terbury: P r o -C h o ic e F oru m . Lippman, A b b y (1991) ‘Prenatal Genetic Testing and Screening: Constructing Needs and Reinforcing Inequities’, American Journal o f Law and Medicine 17: 1 5 -5 0 . L o w , L a w ren ce, S u zan n e K in g and T o m W ilk ie (1998) ‘G en etic D isc r im in a tio n in L ife Insurance: E m p irical E v id en ce fr o m a C r o ss S ection al Su rvey o f G en etic S u p p ort G ro u p s in the U n ite d K in g d o m ’, British Medical Journal 317: 1 6 3 2 -5 . M air, Jane (1996) ‘M a tern a l/F o eta l C o n flic t: D e fin e d or D e fu s e d ’, pp. 7 9 -9 7 in S. M cL ean (ed .) Contemporary Issues in Law , Medicine and Ethics. A ld ersh o t: D a rtm o u th . M a lin o w sk i, M ich ael (1994) ‘C o m in g in to B eing: Law , E th ics and the P ractice o f P re­ natal G en etic S creen in g’, Hastings Law Journal 45: 1 4 3 5 -5 2 6 . M en o n , N . (1993), ‘A b o r tio n and th e Law: Q u e stio n s fo r F em in ism ’, Canadian Journal o f Women and Law 6: 1 0 3 -1 8 . M ich ie, S., F. B ron , M . B o b r o w and T. M . M arteau (1997) ‘N o n d ire c tiv e n e ss in G en etic

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C o u n sellin g: A n E m pirical S tu d y ’, American Journal o f Human Genetics 60: 4 0 -7 . M irin g o ff, M a rq u e-L u isa (1991) The Social Costs o f Genetic Welfare. N e w B ru n sw ick : R u tgers U n iv e r sity Press. M o d ell, B ern a d ette and M ich ael M o d e ll (1 9 9 2 ) Towards a Healthy Baby: Congenital Disorders and the N ew Genetics in Primary H ealth Care. O x fo rd : O x fo r d U n i ­ v e rsity Press. M o d e ll, B ern ad ette (1994) ‘Screen in g fo r F etal A b n o r m a litie s’, pp. 2 1 5 -2 4 in S. B e w le y and H . W ard (ed s) Ethics in Obstetrics and Gynaecology. L o n d o n : R C O G Press. M organ , D e r e k (1996) ‘H ea lth R ig h ts, E th ics and Justice: T h e O p p o r tu n ity C o s ts o f R h e to r ic ’, pp. 1 5 -2 7 in S. M cL ea n (ed .) Contemporary Issues in Law , Medicine and Ethics. A ld ersh o t: D a r tm o u th . M udur, G anap ati (1999) ‘In d ian M ed ica l A u th o r itie s A c t o n A n ten a ta l Sex S e le c tio n ’, British Medical Journal 319: 401. N e lk in , D o r o t h y and L a w ren ce T ancred i (1 9 9 4 ) Dangerous Diagnostics: The Social Power o f Biological Information. C h ica g o : C h ic a g o U n iv e r s ity Press. P a ter so n -B ro w n , Sara (1998) ‘S h o u ld D o c to r s P erfo rm an E lec tiv e C aesarean S ectio n o n R e q u est? ’, British Medical Journal 317: 4 6 2 -3 . P o llitt, K atha (1995) Reasonable Creatures: Essays on Women and Feminism. N e w York: V intage. Rajan, J u lie V. G . (1996) ‘W ill In d ia ’s B an o n P renatal Sex D e te r m in a tio n S lo w A b o r ­ tio n o f G irls? ’, Hinduism Today 18: 8 -1 6 . R ig d o n , Susan (1996) ‘A b o r tio n L a w and P ractice in C hin a: A n O v e r v ie w w ith C o m ­ p a riso n s w ith th e U n ite d S ta tes’, Social Science and Medicine 42: 5 4 3 -6 0 . R o b er tso n , J o h n (1994) Children o f Choice: Freedom and the N ew Reproductive Technologies. N e w Jersey: P rin c eto n U n iv e r s ity P ress. R o b er tso n , J o h n (1996) ‘G en etic S e lec tio n o f O ffsp r in g C h a ra cteristics’, Boston Uni­ versity Law Review 76: 4 2 1 -8 2 . R o y a l C o lle g e o f O b stetricia n s and G y n a e c o lo g is ts ( R C O G ) (1 9 9 4 ) A Consideration

o f the Law and Ethics in Relation to Court-Authorized Obstetric Intervention. L ondon: R C O G . R o y a l C o lle g e o f O b stetricia n s and G y n a e c o lo g ists ( R C O G ) (1 9 9 6 ) Supplement to A

Consideration o f the Law and Ethics in Relation to Court-Authorized O bstet­ ric Intervention. L o n d o n : R C O G . S h eld o n , Sally (1997a) Beyond Control: Medical Power and Abortion Law. L o n d o n : P lu to . S h eld o n , S ally (1 9 9 7 b ) ‘M u ltip le P re g n a n cy an d R e (p r o )d u ctiv e C h o ic e ’, Feminist Legal Studies 5: 9 9 -1 0 6 . S h eld o n , Sally and M ich ael T h o m s o n (19 9 8 ) ‘H e a lth C are L a w and F em in ism : A D e v e lo p in g R e la tio n sh ip ’, pp . 1 -1 3 in S. S h eld o n and M . T h o m s o n (ed s) Femin­ ist Perspectives on Health Care Law. L o n d o n : C a v en d ish . S k en e, L o a n e (1998) ‘P a tien ts’ R ig h ts or F a m ily R e sp o n sib ilitie s? T w o A p p r o a ch es to G en etic T e stin g ’, Medical Law Review 6: 1 -4 1 . T o m lin so n , S u zan n e (1998) ‘G en etic T estin g fo r C y s tic F ib rosis: A P erson al P er sp ec ­ tiv e ’, Harvard Journal o f Law and Technology 11: 5 5 1 -6 4 . W a ch b ro it, R o b ert and D a v id W asserm an (19 9 5 ) ‘P a tien t A u to n o m y and V alu eN e u tr a lity in N o n -D ir e c tiv e G e n e tic C o u n s e lin g ’, Stanford Law and Policy Review 6: 1 0 3 -1 1 . W allerstein , C laire (1998) ‘P ak istan L ags B e h in d in R e p r o d u ctiv e H e a lth ’, British Medical Journal 317: 1546. W a rn ock , M ary (1998) ‘In fo rm ed C o n se n t: A P u b lish er ’s D u t y ’, British Medical Journal 316: 1 0 0 2 -3 .

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W arren, M ary A n n e (1999) ‘Sex Selection : In d ivid u al C h o ic e or C u ltu ral C o e r c io n ? ’, pp . 1 3 7 -4 2 in H elg a K u h se and P eter Sin ger (ed s) Bioethics: An Anthology. O x fo rd : B lack w ell. W atts, G e o ff (1999) ‘Fears that a R ise in G en etic T estin g w ill R u le O u t In su ran ce are “P a ran oia” ’, British Medical Journal 319: 273. W eiss, R ick (1996) ‘A n ti-G ir l Bias R ises in A s ia ’, Washington Post, 11 M ay at A l . W ells, C elia (1998) ‘O n th e O u tsid e L o o k in g In: P ersp ectives o n E n fo rced C aesare­ a n s’, p p . 2 3 7 -5 7 in S. S h eld o n and M . T h o m s o n (eds) Feminist Perspectives on Health Care Law. L o n d o n : C a v en d ish . W ertz, D o r o t h y (1997) ‘S o c iety and th e N o t - S o - N e w G en etics: W h at A re W e A fraid O f? S om e F u tu re P re d ictio n s fr o m a Social S cien tist’, Journal o f Contemporary Health Law and Policy 13: 2 9 9 -3 4 5 . W est, R o b in (1992) ‘T h e D iffer e n c e in W o m e n ’s H e d o n ic Lives: A P h e n o m e n o lo g i­ cal C ritiq u e o f F em in ist L egal T h e o r y ’, pp. 8 0 7 -2 5 in M ary Jo e F ru g (ed.) Women and the Law. W estb u ry, N Y : F o u n d a tio n Press.

[25] Abortion and the Law: Questions for Feminism © 1992

by Nivedita Menon

Cet essai discute de I engagement féministe en droit dans le contexte de la question de 1'avortement. Les discussions féministes sur Vavortement s'inscrivent typiquement dans le cadre du discours du libéralisme. Nivedita Menon maintient que cette démarche suscite des contradictions sur le plan politique et une incohérence sur le plan philosophique. L'auteure appuie son affirmation en donnant comme exemple le débat qui a lieu en Inde à propos de i avortement sélectif des foetus après des tests de détermination du sexe. Le mouvement féministe en Inde a fait campagne assidûment pour faire adopter une loi restreignant cette pratique. A première vue, la stratégie féministe semble compatible avec les idées conventionnelles sur le rôle du droit en matière de protection des droits. Cependant, cette stratégie force le mouvement féministe à adopter des pratiques politiques très contradictoires. En premier lieu, il est clair qu'en raison des impératifs auxquels est soumis l'Etat indien, particulièrement dans le domaine de la reproduction, il y a peu de possibilités, sinon aucune, de faire adopter une législation vraiment féministe susceptible d'avoir un pouvoir transformateur. Deuxièmement, sur un plan plus pragmatique, il importe de réfléchir aux implications des revendications féministes en faveur de l'adoption de restrictions légales en matière d'avortement. U incohérence philosophique du discours du libéralisme pose aussi des difficultés théoriques et pratiques aux féministes. En partie à cause de cette incohérence, le mouvement féministe en Inde se trouve dans la position où il utilise la rhétorique pro-choix afin d'accroître l'accès à l'avortement, mais réclame aussi qu on interdise aux femmes de se faire avorter. Menon ne soutient pas que la position féministe sur i avortement sélectif de foetus est injustifiable, mais elle estime que le mouvement féministe doit fondamentalement repenser le rôle et la conceptualisation des droits.

This paper owes much to the excellent documentation facilities available at Jagori, a women’s resource centre in New Delhi. I thank the anonymous reviewers for the Canadian Journal of Women and the Law and Kian Tajbakhsh, whose insightful comments were stimulating and productive. Special thanks to Naina Kapur for help and encouragement.

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This essay attempts to problematize the feminist engagement with law in the context o f the issue o f abortion. Feminist discussions o f abortion are typically set in the discourse o f liberal rights. I argue that this approach gives rise to political contradictions as well as philosophical incoherence. My argument is illustrated by reference to the debate in India over the selective abortion o f female foetuses after sex determination tests. The women's movement in India has consistently campaigned for legislation to curb this practice. At first sight the feminist strategy appears to be consistent with conventional beliefs about the role of law in protecting rights. However, it demands highly contradictory political practices for the feminist movement. First, it is clear that given the imperatives o f the Indian state, particularly in the area of reproduction, there is very little, if any, possibility o f achieving truly feminist and transformative legislation. Second, at a more pragmatic level, it is important to reflect on the implications of the women's movement seeking legal restraints on abortion. The philosophical incoherence of liberal rights discourse also generates theoretical and practical difficulties for feminists. Partly as a result o f this incoherence, the feminist movement in India has found itself in a position where it is using the rhetoric o f women's choice in order to enhance access to abortion, but also demanding that women be prevented from aborting female foetuses. My conclusion is not that the feminist position on selective abortion o f female foetuses is unjustifiable, but that the women's movement must fundamentally rethink both the role and the conceptualization of rights. In tro d u c tio n Western feminism has traditionally taken die position that the right to abortion is a fundamental and rion-negotiable demand.1 This position may be based either on an assumption of the inalienable right of women to control our bodies or on the understanding that since women are socially responsible for child-care, we should also have the option of deciding whether to assume that responsibility.2 In both cases, I would argue, the feminist discussion of abortion is conducted in the same terms as the anti-feminist one, that is, in the language of liberal rights. The argument based on the right of women to control our bodies assumes the existence of an individual prior to society, as a natural and isolated unit, with inalienable rights over life and person. Even socialist feminists, who would otherwise reject this approach, use the language of natural rights when it comes to abortion without problematizing the concept of natural rights.3

1. Kristin Luker, Abortion and the Politics of Motherhood (Berkeley: University of California Press, 1984). 2. Rosalind Pollack Petchesky, Abortion and Womens Choice: The State, Sexuality and Reproductive Freedom (New York: Longman, 1984), 1-18. 3. Michele Barrett, Women’s Oppression Today: Problems in Marxist Feminist Analysis (London: Verso, 1980), 45.

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Similarly, the argument based on the socially-assigned responsibility for child­ care sees women as individuals within a patriarchal culture, against which we must assert our rights to our person and choices of lifestyle. Thus feminist discourse on abortion is set in the same universe as the anti-feminist one; the argument is joined on the questions of whether the foetus has the status of an individual, and if so, whether the right of the foetus to life is greater than that of the woman to her person. To make this point is not to say that Western feminists' position on abortion is unjustifiable. However, it highlights the problem that a feminist strategy of situating the issue of abortion in the discourse of liberal rights gives rise to both philosophical incoherence and political contradictions. The debate in India over the selective abortion of female foetuses after sex determination tests vividly illustrates the problematic nature of liberal rights discourse in feminist politics. First, the consistent campaign of the Indiar. women's movement for legislation to curb the practice of selective abortion of female foetuses has given rise to very serious political contradictions. The dilemmas for the women’s movement in India, arising out of this form of engagement with law. are explored later in this article. Second, there is a profound philosophical incoherence involved in arguing for abortion in terms of the rights of women to control our bodies and at the same time demanding that women be prevented by law from choosing specifically to abort female foetuses. If indeed we seek to transform society, it is essential that feminists avoid being forced to counterpose the rights of (future) women to be bom against the rights of (present) women to control over their bodies. This article explores some of the problems that arise at the level of philosophy from setting abortion in the matrix of “rights-talk”. To some extent the specific dilemmas facing Indian feminists are shaped by the economic and political imperatives of the development strategy pursued by governments. My starting point is to contextualize the state’s policy on abortion by way of a brief discussion of the political economy of development in India. A b o rtio n a n d th e P o litic a l E c o n o m y o f D e v e lo p m e n t in In d ia In India the issue of abortion has entered the lexicon of feminist struggle through a very different trajectory from that followed in the West. Here, as in most poor countries, the pressure of population growth means that this “right” is not in question. Women, whose control over their lives and bodies is circumscribed in every possible way, nevertheless have the right to abortion on demand. The dominant ideology in, and about, countries such as India presents poverty as a function of a rising population. One consequence of this ideology is that family planning has become a central focus of governmental programmes for economic development. At the time of independence in 1947, it was recognized by the Indian bourgeoisie that in order to promote industrialization throughout the country it was essential to create a market for goods. Initially the market was to be developed by

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reducing poverty in the countryside. This objective was given a high priority, and as originally conceived, it was to be achieved by substantial land reforms. However, the presence of, and interventions by, powerful landed interests has meant that effective land reforms have never been carried out. Instead, for over four decades the process of planning for economic development has been an exercise in trying to promote industrialization without radical transformation of control over land and agricultural production. Successive governments have therefore pursued, simultaneously, two conflicting sets of policies: growth strategies based on incentives to private investment, and distributive strategies requiring government investment on loans, technical training for the unemployed, and other short term measures. The tensions between the two types of policy are obvious. Governmental finance of distributional programmes entails diversion of resources away from the creation of incentives for private capital. At the same time, if distributive policies are not implemented, mass poverty would make it impossible to achieve and sustain high growth rates. Since fundamental agrarian change in India has been ruled out. all attempts to tackle economic crises are situated within this contradictory matrix. Beginning in the 1980s, India, under the tutelage of the World Bank, has endured the new liberalization policy and economic restructuring.4 While the specific content and implications of these policies are outside the scope of this paper, it is clear that over-population is still cast as the cause of poverty. One merely has to consider, however, that in most years India has a foodgrain surplus, to recognize that poverty can also be explained by the lack of an effective will to distribute. Population control policy in India tends to be coercive toward the poor. During the internal Emergency of 1975-77 the government carried out compulsory mass sterilizations of men in slums. The strong reactions to this policy led the government gradually to target women as the object of family planning policies. Of course, this shift in focus has not in any way reduced the essentially coercive nature of such policies. District Collectors have been offered incentives to meet their “sterilization targets” and there are instances where employment on famine relief works has been restricted to women workers who have undergone sterilization.5 Furthermore, governments in India use incentives and disincentives to influence the decisions of government workers with respect to family size, and the state determines the availability of different types of contraceptives through pricing and subsidy policies.

4.

5.

See, for example, Sukhamoy Chakravarty, Development Planning: The Indian Experience (Oxford: Oxford University Press, 1987), and Sudipta Kaviraj, “A Critique of the Passive Revolution”, Economic and Political Weekly 23 (1988): 2429. Report prepared by women’s groups: Saheli, Sabala Sangh, Action India, Disha (Delhi) Women s Centre, FAOW - Forum Against Oppression of Women, Awaz-e-Niswan, Development for Whom? A Critique o f Women s Development Programmes (Bombay: 1991), 9-10.

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Given this context, the issue of abortion has very different connotations in India than in the West. The imperatives of the state have meant that Indian feminists, unlike our Western counterparts, have not had to engage in a struggle for the “right” to abortion. Indeed government-sponsored programmes, as well as private clinics like Marie Stopes, have explicitly advocated the use of abortion as an effective method of controlling population.67 According to Sripati Chandrasekhar, a former minister for Health and Family Planning, this policy can be justified on two grounds. Firstly, there is said to be a direct correlation between the availability of abortion and a declining birth rate. Abortion thus takes its place alongside governmental policies concerning the supply and distribution of contraceptives. Secondly, Chandrasekhar adopts the Western philosophical matrix of individual choice and freedom in arguing that “ [t]he fundamental right to choose whether to bear children is a right of privacy which no government of any country should curtail”.8 The contradictions between the rhetoric of individual rights and the practices of the Indian state are clear. The state in India is committed to a position which denies that the right to bear children is in any sense “private”. Through practices such as those outlined above it seeks to impose a small-family norm. This norm is to be enforced even where factors such as high infant mortality rates and the inadequacy of income security would suggest that it is rational for Indian women to give birth to several children. Clearly then, the legal sanction for abortion does not arise from an understanding of women’s choices and women’s rights over our bodies. It is, rather, a socially mandated consequence of the economic imperatives of the state.

The R ig h t to A bortion an d the Struggle a g a in st P re-N a ta l Sex D eterm ination: P olitical C ontradictions in S earch o f R esolution Since the passing of the Medical Termination of Pregnancy Act9 (hereafter MTP Act) in 1971, women in India have had access to safe and legal abortions, and it is for quite a different reason that abortion has become an issue for feminists. For over a decade now, amniocentesis has been used to determine the sex of foetuses with a view to abortion of female foetuses. In 1975, the All India Institute of Medical Sciences, the premier government-run medical research centre

6. Amrita Chhachhi and C. Satyamala, “Sex Determination Tests: A Technology Which Will Eliminate Women”, Medico Friends Circle Bulletin (New Delhi: November 1983): 4. 7. Sripati Chandrasekhar, Abortion in a Crowded World: The Problem o f Abortion with Special Reference to India (London: George Allen and Unwin Ltd., 1974), 81. 8. Ibid., 2. 9. Indian Parliament Act no. 34 of 1971. Published in the Gazette of India, ext., Part II - Section 1, No. 64, dated 10 August 1971 / Srawana 19, 1893.

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and hospital in the country, initiated experiments through amniocentesis for the determination of foetal abnormalities. Knowledge about the sex of the foetus was a side-effect of the test, but the result was that most of the couples who learned that the foetus was female selected abortion. Subsequently, through an order of the Indian Council of Medical Research, the use of the amniocentesis test was restricted to suspected cases of genetic disease.10 Between 1977 and 1985 three Circulars to government departments at the centre and in the states made the use of pre-natal sex determination for the purpose of abortion a penal offence.11 The ban on the use of this technology in government institutions led to its privatization and commercialization: sex determination clinics have mushroomed all over the country. Districts which lack such basic amenities as potable water and electricity have pre-natal sex determination clinics. Rural health centres with no facilities for testing of sputum for T.B. or to maintain the cold chain for oral polio vaccine send samples of amniotic fluid in ice packs to district towns for sex determination tests. A study showed that even marginal farmers and landless labourers were willing to take loans at 25 per cent compound interest to avail themselves of these tests.12 A campaign against the practice of pre-natal sex determination was launched by women’s groups as well as civil liberties and health movements. In 1984 a broad coalition was formed, the Forum Against Sex Determination and Sex Pre­ selection (hereafter FASDSP). The FASDSP operates on many levels. It conducts research studies, holds seminars and workshops, produces information sheets, and so on. However, the primary focus of its activity has been the mounting of a sustained campaign for legislation against pre-natal sex determination. In 1988, there was a legislative breakthrough at the state level when the government of the state of Maharashtra brought into force the Maharashtra Regulation of the Use of Prenatal Diagnostic Techniques Act.13 Since then the FASDSP has been pressing for central legislation. An Expert Committee has drafted a Bill and the FASDSP is actively involved in working on the provisions of the draft Bill and lobbying for its passage. The FASDSP obviously views restrictive legislation as an important strategy of progressive social change. After the passing of the Maharashtra Act, the FASDSP asserted in its newsletter that “it is possible to pressurize the government

10. Sanjeev Kulkami, Sex Determination Tests and Female Foeticide in the City of Bombay (Report Commissioned by the Secretary to the Government, Department of Public Health and Family Welfare, Maharashtra, 1986), 19. 11. Ibid., 2. 12. Forum Against Sex Determination and Sex Preselection, Information Sheet on Sex Determination and Sex Preselection Techniques (Delhi: Bombay and Saheli Women’s Resource Centre, n.d ). 13. Maharashtra Act no. XV o f 1988. Published in the Maharushtra Government Gazette Part IV. dated 5 May 1988.

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to take a progressive step provided all progressive forces join hands”.1415However, as I describe later, other progressive forces were disappointed with the Act, as reflected in Flavia Agnes’ comment that “ [t]his moment which should have been one of jubilation turned out to have been one of doubt and misgiving”.13 Moreover, the unqualified acceptance of the progressive potential of the government is problematic, even recognizing that the government responds only when confronted by overwhelming pressure. As we have seen, the “progressive” attitude of the Indian state to abortion is dictated by compulsions other than a commitment to women’s liberation. If the very logic of these compulsions were extended, the government could well support selective abortion of female foetuses. In fact, there already exists, in India, a vocal and influential school of thought which justifies the practice of selective abortion of female foetuses as a form of population control. The argument behind support for such a policy is, in essence, that to permit abortion of female foetuses would prevent couples from continuing to have children until the desired son was produced.16 At a seminar in 1984, for example, a family-planning government official stated that sex determination tests must be allowed because our population growth calls for desperate measures.17 Similarly, the head of Obstetrics and Gynaecology at the government general hospital at Bokaro has stated that: “Our priority is population control by any means. Amniocentesis should be used as a method for family planning and made available to everyone at a minimum cost or even free.” 18 Moreover, although the government does not openly advocate sex determination tests, the selective abortion of female foetuses seems to have been built into the population control policies of the Sixth and Seventh Plans. These Plans set a target of a Net Reproduction Rate (NRR) of one (that is, one woman should replace her mother) and it is expected that this goal, together with the objective of limiting births to two to three per woman, will be achieved by 2006 2011. It would seem that one implication of these policies is that “excess” girls will have to be killed at the foetal stage to maintain the NRR of one.19 As long as poverty is tackled as a function of over-population, the right to abortion is unlikely to be questioned. The corollary of this policy, however, is that it is not at present in the interests of the dominant elites to curtail abortions in any way. Therefore, while the compulsions of democracy are such that a vocal, visible, and organized women’s movement in India may achieve legislative

14. FASDSP, Newsletter (1988). 15. Flavia Agnes, “A Critical Review of Enactments on Violence Against Women” in Women and Violence: A Country Report, ed. Maithreyi Krishna Raj (Bombay: Research Centre for W omen’s Studies, SNDT Women’s University, 1991), 146. 16. Arvind Kala, “Banning Sex Tests: Unfair Unworkable”, The Times o f India, 25 January 1991, 8. 17. Bharati Sadasivam, “The Silent Scream”, The Illustrated Weekly o f India, 14 September 1986,40. 18. Kulkami, Sex Determination Tests, 23. 19. Sadasivam, “The Silent Scream”, 40.

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reform, the response of the Indian state is bound to be unsatisfactory. Legislation cannot but be embedded in the dominant values of a system, whether patriarchal, class, or any other, and very often distorts the purpose intended by marginal groups. Thus, it is not surprising that the legislation in Maharashtra which purports to curtail pre-natal sex determination is full of loopholes. First, the legislation does not ban private genetic laboratories and clinics which carry out sex determination tests (hereafter SD tests), but only provides for their registration. Second, the Act enables the state government to overrule the decisions of the highest monitoring body set up by the Act with respect to cancellation or suspension of the licence of a clinic or laboratory. Third, the government can exempt any public lab or clinic from the provisions of the Act. Fourth, the ordinary citizen cannot directly take challenges to the courts but must approach the monitoring bodies. Finally, the monitoring bodies can refuse to make records or information available to the complainant “in the public interest”.20 The FASDSP is pressing for appropriate changes in the proposed Central legislation. Even if it is assumed that Indian governments can be pressurized into enacting a foolproof law against abortion of female foetuses, there remains an important dilemma for feminists in India. At the very least, we have to examine the political implications of pressing for legislation that would entail restricting a woman’s right to abortion. The issue of selective abortion of female foetuses has been used by the “pro­ life” lobby in the United States of America as an instance of the anti-women uses to which the right to abortion can be put. In India, two of the legal initiatives against SD tests were based on premises which questioned the unrestricted right to abortion. A women’s group in Bombay filed a petition in the High Court in 1986 arguing against SD tests on the basis that such tests violated Article 21 of the Constitution, that is, the right to life. This argument could well be extended to the right to abortion itself.21 The second instance is a Private Member’s Bill introduced in Parliament to amend the MTP Act. The amendment sought to empower the medical practitioner to refuse termination of pregnancy “if he or they have reason to believe that such termination is sought with the intention to commit female foeticide”.22 Both initiatives were opposed by the FASDSP as potentially restricting the right to abortion, but the coalition apparently remains unaware of the tensions in its own position. The approach taken by the FASDSP can be explored by reference to two aspects of the current debate. To begin with, we can ask whether new legislation was in fact necessary to tackle the problem of selective abortion of female

20. A Note About Proposed Central Act to Ban SD Tests, based on discussions in the FASDSP Workshop on “Legal Aspects of SD Tests”, held on 24 September 1988, Bombay. 21. Agnes, “A Critical Review”, 147. 22. Ibid.

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foetuses? Secondly, it is important to interrogate the manner in which the FASDSP attempts, at one and the same time, to oppose restrictions on abortion and to demand restrictions on sex determination tests. An examination of the MTP Act of 1971 is revealing. The earlier provisions covering abortion were to be found in sections 312, 315, and 316 of the Indian Penal Code (hereafter IPC) and these have not been repealed. Thus an abortion which is not permitted by the MTP Act amounts to an offence under the IPC. The MTP Act in fact contains three distinct regimes governing the availability of abortion. During the first 12 weeks of pregnancy, termination is available on the certification of one registered gynaecologist or obstetrician. From 12 to 20 weeks, termination requires two registered gynaecologists or obstetricians to certify cuner that the pregnancy involves a risk to the life of the woman e* -vould cause grave injury to her physical or mental health or, alternatively, that there is a substantial risk that a seriously handicapped child would be bom. After 20 weeks, a pregnancy can be terminated only if two registered gynaecologists or obstetricians testify that it is immediately necessary to save the life of the pregnant woman. At the present time SD tests can be conducted only after 16 to 18 weeks of pregnancy and it takes at least one week for the results to be obtained. Generally, by the time the results are available and the decision taken to abort, the pregnancy is at least 20 weeks advanced. In cases where women must travel from out of town, the pregnancy may have been established for even longer. Given that the MTP Act does not permit abortions after 20 weeks, except under extraordinary circumstances, it would seem that abortions following an SD test would more often than not be illegal.23 On occasion, however, doctors have interpreted the “mental health” clause to include the trauma the woman would be subjected to if she had a female child, and on this basis have conducted abortions up to 20 weeks. This practice only underscores the point that shoring up the MTP Act was an avenue that the FASDSP might have explored as an alternative to seeking new and more restrictive legislative controls. Further complications arise when we turn to the relationship between the availability of abortion and SD tests. The position of the FASDSP is that while the coalition seeks to outlaw sex determination tests, it does not want to restrict abortion. However, the two issues are not so neatly separable. One example of the problems that can arise is to be found in the reaction of the FASDSP to one of the critical provisions of the proposed central legislation. In the definition clause of this legislation, “selective abortion of female foetus” is defined as that which is performed on the pregnant woman “on grounds other than those listed in the MTP Act of 1971”. We have seen that under this Act an abortion is legal up to 12 weeks without restriction and up to 20 weeks if the

23. Anand Grover, “Legal Aspects of Amniocentesis”, Lawyers Collective, March 1985, cited in The Scarcer H alf (Bombay: CED Feature No. 9, January 1986).

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physical or mental health of the woman or child is at risk. Thus, by the terms of the proposed Bill, monitoring agencies would consider the possibility that an abortion was selectively directed at a female foetus only if it clearly falls outside these conditions. That is to say, the regulatory regime would be breached only if a termination after 20 weeks of pregnancy cannot be supported by evidence of a sufficiently grave threat to the life of the pregnant women, or, in the case of an abortion between 12 and 20 weeks, if there is insufficient evidence that the pregnancy threatened the physical or mental health of the mother or child. The FASDSP is opposed to this clause as currently drafted. The coalition takes the position that since the mental health clause of the MTP Act can be, and has been, misinterpreted to justify late abortions of female foetuses, women can continue to use the existing provisions of the Act selectively to abort female foetuses. It is argued that in order to prevent this abuse, the definition clause in the proposed Bill discussed above (“grounds other than those listed in the MTP Act 1971”) should be deleted.24 However, the dropping of this clause has grave implications because it opens up the possibility of any abortion coming under the scrutiny of the proposed legislation against SD tests. Thus while the FASDSP is very clear that on no account should the MTP Act be amended to curb SD tests, its opposition to the clause discussed above could open up entirely new ways of reviewing many routine abortions carried out under the MTP Act. The FASDSP’s position is thus in fundamental contradiction with its own professed objectives. Moreover, there is a danger that this public position could be used by a government interested in population growth to restrict women’s access to abortion. Unlikely as such a scenario might seem in India, the current approach of the FASDSP could be a potent weapon in the hands of religious fundamentalist forces such as the Vishwa Hindu Parishad. In the climate of growing fundamentalism in India, there is already considerable discussion of the supposed decrease ^ the numbers of Hindus vis-à-vis other religious communities, particularly Muslims. A government controlled by a religion-based party do— not seem entirely impossible and such a government could well direct population control selectively for different communities. An illustration of the potential dangers for women can be seen in the ceremony organized in 1986 by a group called the Hindu Munnani to honour, with the title “Brave Mother”, four Hindu women each of whom had borne ten children. The awards were distributed by an eminent Hindu leader who later said that while he believed in family planning for Hindus, other communities were not being controlled.25 Clearly then, what appears to be a well entrenched right in the Indian context is constituted in a very complex way. A shift in the configuration of the political and cultural elements within the system could radically alter the influence of the

24. FASDSP, note sent to women’s organizations, n.d. 25. Vimal Balasubramaniam, “Who’s Not Afraid of Family Planning?’’, Seminar, March 1987, No. 331 .

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economic compulsions that give legal sanction to abortion. An unreflective engagement with the law is therefore potentially dangerous. In this context the argument that the law could be “juridogenic”, that is, that it can cause further damage in attempting to right wrongs, is a warning to be taken seriously.26 In the past decade the women’s movement in India has reacted to almost every issue, particularly instances of violence against women, by demanding legislative action. These efforts have been successful in that almost every campaign in the decade 1980-89 resulted in legislative changes. This success, however, raises a new set of questions: why has the final form of the laws so rarely embodied the initial demands of the campaigns which fought for them? Why has the rate of conviction under these pieces of legislation remained so low? Why is the interpretation and implementation of these laws conservative and partial? A feminist who has been active in these campaigns has written of her growing disenchantment with the law as an agent of transformation. She points out, for instance, that each enactment, instead of plugging procedural loopholes, has established more stringent punishment and led, in fact, to fewer convictions. At the same time, each new law vests more power with the state enforcement machinery in a situation where the state is “anti-poor, anti-minority and anti­ women”.27 Even if this perception of the state is not shared by all sections of the women’s movement in India, the increase in the extent to which state intervention is actively solicited should give rise to considerable unease. For instance, on the issue of amniocentesis, the FASDSP seeks to end not just the selective abortion of female foetuses, but sex pre-selection tests as well. This demand was added to the agenda with the emergence of new technologies by which the sex of the foetus can be pre-selected at the time of conception.28 The FASDSP calls for a ban on such pre-selection techniques and for the regulation of the introduction of all new technologies in future. Without denying for a moment the legitimacy of feminist concerns over technologies which would have the same effect on the sex ratio as selective abortion of female foetuses, one must recognize the dangers inherent in seeking the intervention of law to restrict the development of any technology which could be judged capable of being used for sex pre-selection. It is true that technology is not neutral in relation to power structures and that it tends to reinforce existing

26. Carol Smart, Feminism and the Power o f Law (London: Routledge, 1989). 27. Agnes, “A Critical Review”, 93-94. 28. One example of sex pre-selection technology is the Ericsson technique developed by an American physiologist. This procedure is based on the hypothesis that ‘Y’ chromosome-bearing sperm swim faster than X chromosome-bearing sperm when placed in a dense liquid protein. A ‘Y ’-rich solution, once obtained, can be used to impregnate a woman, thereby enhancing her chances of conceiving a boy: “The Ericsson Technique: A New Way to Eliminate Women?”, Indian Express, 29 June 1986, 4.

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patterns of power. Nevertheless, the solution cannot be to hand over entire areas of science and knowledge to bureaucratic control. Such a strategy is in fundamental contradiction to any feminist ideal of democracy.

The P h ilosoph ical Incoherence o f L iberal R igh ts D iscourse If abortion is a right over one’s body, how are feminists to deny this right to women when it comes to selective abortion of female foetuses? Rosalind Pollack Petchesky poses the dilemma for feminists in the following terms: Should women get an abortion on the grounds that they prefer a different gender...? Such a decision would be blatantly sexist...That is, a woman’s ‘light to control her body’ is not absolute, but we have not developed a socialist feminist morality that would tell us what the exceptions should be.29 If indeed abortion is a self-evident right, then it would seem that exceptions can be justified only by reference to a morality assumed to be shared by the very group to whom that right is being denied. The FASDSP takes the argument a step further in that it seeks to translate this notion of morality into specific legal provisions by demanding that in the proposed central legislation the woman who aborts a female foetus should not be punished at all. In broad terms, the philosophical justification underlying the FASDSP’s approach to selective abortion of female foetuses is based on an assumption that women who “choose” this option are not “really” exercising free will but have been indirectly influenced by the prevailing social ethos or compelled to act by husbands or families. This assumption, argues the FASDSP, “correctly reflects the reality of coercion by the family and society on women to bear a male child.”30 Thus, a decision to abort based on any consideration other than the sex of the foetus is assumed to reflect the woman’s “free will”, unmediated by social or cultural pressures. While many decisions to abort may be shaped by social considerations such as the stigma of illegitimacy, a lack of social facilities for child care, economic constraints, and so on, it is only when the decision is based on the sex of the foetus that the decision is seen to be a function of social pressure. At the core of this position is the assumption that in the case of abortion of female foetuses, and only in that case, women function on the incorrect understanding that their bodies have legitimacy only as the bearers of patriarchal values. It is thought, therefore, that if women recognize that their bodies are their “own” and that they have “rights” over them, then women would resist the

29. Petchesky, Abortion and Women’s Choice, 7. 30. FASDSP, A Note About Proposed Central Act to Ban SD Tests.

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immorality involved in aborting female foetuses. The issue of the morality of aborting handicapped foetuses (for the detection of which feminists in India continue to endorse amniocentesis) takes us to another level of complexity. Once it is accepted that there can be a hierarchy of human beings, classified by reference to physical characteristics, and that it is legitimate to withhold “rights” to be bom from those who are at low levels of the hierarchy, then this reasoning can be extended to other categories, whether females, “inferior” races, or any other. One feminist response to this dilemma is to argue that since women would have to look after handicapped children they should have the option not to look after them. It hardly bears repeating that the identical argument may be made about female children: because the social pressure to bear male children falls entirely on the woman, she should have the right to abort a female foetus. Thus, the Indian experience of the selective abortion of female foetuses reveals the contradictions inherent in situating abortion in the discourse of rights. This preliminary article cannot aspire to resolve these contradictions. I venture nevertheless, on a tentative journey towards one possible line of enquiry. It is helpful to begin by looking at an unacknowledged implication of the FASDSP’s position that a woman who aborts a female foetus is not exercising her rights over her body but is coerced by social pressure. There is broad agreement on this argument among feminists in India although not all agree with the FASDSP’s view that the woman should not be punished at all. At the same time, within the feminist understanding, even when the decision to abort is based on the other reasons which are as socially determined as the pressure to bear male children, a woman is still considered to be exercising her free will and her right to her body. If we unravel the subterranean thread of reasoning that makes this argument a logical one to many feminists, we arrive at something resembling the following position. The very constraints of a patriarchal society (including the low priority given to research on safe contraceptive methods) which make abortions necessary in most cases, would be much greater if fewer and fewer women were bom. So abortion must be available to women who want it, while selective abortion of female foetuses must be stopped. If this is the argument being made, and I suggest it is, then the implication is that “rights” over “one’s” body are not “natural”, timeless, and ahistorical. They do not exist except within specific sets of agreements as to what constitutes one’s “own” body, the meaning of “consent” or “responsibility”, the degree to which present social and economic arrangements are equitable, and the nature of the future desired society. Thus, the real implication of the feminist position on abortion and on the selective abortion of female foetuses is that rights come into being and have meaning only within discourses. It is for this reason that rights alter significantly in meaning if they are displaced from one discourse into another. Thus the “right”

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over “one’s body” is set in a particular matrix within feminist discourse, but once in the arena of law where diverse discourses of rights converge, its effects are not within the control of its originating discourse. Laws which recognize the right to abortion permit the abortion of female foetuses; laws which curb the selective abortion of female foetuses could be used to curb the right to abortion itself. The other silent implication of the feminist discussion on abortion is that “the body” too is discursively constituted. The dominant discourses impose heterosexual and reproductive sexuality as the only morally sanctioned order. The assumptions that bodies are “naturally” gendered and that the category of sex is material and prior to ail discourse impose a duality and uniformity on bodies.31 When this violence at the level of categorization is embodied in law (such as laws against homosexuality, laws regulating marriage and procreation, and laws on what constitutes rape) then the political significance for feminist practice is inescapable. If the body is already discursively constituted, the constant referral to the law is in effect a demand that it define with greater and greater exactitude what exactly will constitute one’s “right” over one’s “body”. Furthermore, since the “body” is seen as situated in the realm of the “private” by both mainstream and feminist political theory, the implications of the preceding discussion requires some rethinking on the feminist critique of the public /private divide. Feminist scholarship has been invaluable in calling into question the basic assumption of much contemporary political theory that there exists a clear distinction between the political and the personal, the public and the domestic. However, there is a tendency within feminist thought to theorize about the public and the private as if these spheres have a material reality and exist prior to political theory. Feminist political theory is taken to entail merely the “discovery” of the “private”, hitherto excluded from “public” scrutiny.32 Susan Moller Okin, for example, asserts that “ [w]hile some feminists have argued that there is no need to maintain a private sphere, many, including myself, would agree with mainstream political theorists with the need to maintain a sphere of privacy.”33 Underlying this type of approach is the assumption that something called “privacy” would exist if the law were used to limit its own jurisdiction. Surely, however, the “public” and the “private” are not actually separated spheres; rather, 31. Judith Butler points out that “sex does not describe a prior materiality, but produces and regulates the intelligibility of the m ateriality of bodies“: “Contingent Foundations: Feminism and the Question of Postmodernism’’, Praxis International 11 (1991): 150, 162 [emphasis in original]. 32. See the discussion of the feminist positions on the public/private distinction in Alison Jaggar, Feminist P olitics and Human Nature (Sussex: The Harvester Press, 1983), 143-148; Eve Gamamikow and June Purvis, “Introduction’’ in The Public and the Private, eds. Eva Gamamikow, David HJ.Morgan, June Purvis, and Daphne Taylorson (London: Heinemann Educational, 1983); Jane Siltanen and Michelle Stanworth, eds. Women and the Public Sphere: A Critique o f Sociology and Politics (London: Hutchinson & Co., 1984). 33. Susan Moller Okin, “Gender, the Public and the Private” in P olitical Theory Today, ed. David Held (Cambridge: Polity Press, 1991), 90

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the existence of a private realm is dependent on the very discourse which posits its distinction from the public. The “private”, already deeply penetrated by the “public”, is in fact, constructed and maintained by it. Take, for example, the comments of Avadh Behari Rohatgi J. in Harvinder Kaur v. Harmander Singh C h o u d h r y a decision of the Delhi High Court on the issue of restitution of conjugal rights. In response to an argument that a section of the Hindu Marriage Act under which a court could order an unwilling spouse to restore the “conjugal rights” of the other spouse violated constitutional guarantees of personal liberty and equality, Behari Rohatgi J. stated that “introduction of constitutional law in the home is most inappropriate.. .In the privacy of the home and married life neither Article 21 nor Article 14 has any place”35 and that “the introduction of constitutional law into the ordinary domestic relationship of husband and wife will strike at the very root of that relationship.”36 This judgment is revealing in that it suggests that the law restrains itself from entering the “private” domestic sphere precisely in order to maintain that sphere of privacy. Evidently, the law sees as its business the protection of the “ordinary domestic relationship”. Far from establishing the impenetrability of the “private”, this judgment makes it clear that the private is already constituted by the public law. If the private is indeed constituted by the “public”, then the feminist practice of demanding that the law intervene into the deepest recesses of the “private” in order to fully define what we shall consider “our” bodies is far from being the radically transformative step it has been understood to be. On the contrary, this analysis in effect seals the interstices of the dominant discourse through which the intended meaning of the “body” escapes - precisely those interstices in which subversive discourses like feminism operate to recuperate meaning. In conclusion, it may be the case that feminists do not have to reject altogether the possibility of using the language of rights. However, we must learn to talk of rights in a manner which is highly self-conscious and very cautious. We must understand that no rights can be said to exist as simple and self-evident facts. This understanding would mean that a confident recourse to the law would become increasingly problematic. Faced with the contradictions and incoherences of rights analysis, feminists who work on abortion issues may need to seek alternatives to this discourse. The recognition that rights are discursively constituted resituates them in a realm of complexity and ambiguity. Law, on the other hand, assumes certainty and exactitude and creates uniform categories out of a multiplicity of identities and meaning. The contradiction between rights and law

34. [1984] A.I.R. 66 (Delhi). 35. At para. 45. Article 21 is the constitutional protection of the right to life and personal liberty and Article 14 of the Indian Constitution guarantees equality before the law. 36. At para. 47. For an interesting comment on this case, see Nandita Haksar, Demystification o f the Law fo r Women (New Delhi: Lancer Press, 1986), 58

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has special significance for feminist theory and practice at the conjuncture where we seek to address the public/private divide. A feminist manifesto on “equality of conditions for reproductive choice”37 would have to recognize the materiality of cultural and ideological practices which constitute “bodies”, “rights”, and even “women”. This materiality cannot be tackled by law but demands a counter-practice of ideology.

37. Petchesky, Abortion and Women’s Choice, 390.

N.B. Since its publication in the Canadian Journal of Women and the Law, this article has been substantially expanded and revised, and is now part o f Nivedita M enon’s book Recovering Subversion: Feminist Politics Beyond the Law, Permanent Black, Delhi, and University o f Illinois Press, Forthcoming 2004.

Name Index Adams, Abigail 189 Adams, John 189 Adler, Nancy 532 Agnes, Flavia 537, 538, 551 Aird, John 429, 430 Alton, David 170 Alvaney, Lord 301 Amu, Olubusola 529 Annas, George 112, 330 Aquinas, St Thomas 4, 5, 44, 50 Aristotle 56, 195, 433, 537 Asch, Adrienne xv, 467-75, 477-517 Aukland, Lord 301 Augustine, St 40 Bacon, Francis 151 Bailey, Mary A. 496 Barrett, James 333 Barry, Sir John 319 Beare, Eleanor 297 Beauchamp, Tom 431 Beaudet, A.L. 467, 480 Beckwith, Francis J. 74, 75 Beeson, D. 472 Beethoven, Ludwig von 462 Benn, Stanley 179 Bennett, Belinda Bennett, Jonathan 50 Bentham, Jeremy 51 Berer, Marge xiv, 413-26 Berger, John 156 Bérubé, Michael 503, 511 Bhlakrishnan, Rdhika 537, 539 Bianchi, Diana 482, 509 Biesecker, Barbara B. 509 Blackmun, Justice 244, 329, 357, 392, 393 Blackstone, Sir William 292, 294, 295, 297 Blustein, Jeffrey xv, 447-51 Boonin, David xii, 59-86 Boorse, C. 468 Bork, Robert H. 347, 352, 379 Botkin, Jeffrey R. 471, 5 03-4 passim Bracton, Henry de 290, 291 Brennan, Justice 378 Britton, John 333 Brooks, Alex 535

Brown, Justice 253 Brown, Sir Stephen 524, 525 Browner, Carole 486, 510 Buchanan, Alan 461, 498 Bürgin, Victor 157 Bush, George 332, 334 Callahan, Daniel 99, 115, 533 Cao, Antonio 533 Caplan, Arthur L. 473 Carder, Angela 112, 113, 525 Carrier, L.S. 74, 75 Chandrasekhar, Sripati 551 Chedd, Naomi A. 480-81 Cherry, April 537, 538 Chervanak, Frank A. 455 Childress, James 431 Chitty, Joseph 298, 304 Cicero 40 Cixous, Hélène 139 Coke, Sir Edward 290, 291, 292, 295, 297 Confucius 434 Cook, Rebecca 323 Cook-Deegan, Robert M. 534 Corea, Gena 155 Corrie, John 170 Cumberledge, J. 529 Cunningham-Burley, Sarah 532 Daniels, N.L. 468 Danis, Jodi 536, 537, 538 Das Gupta, Monica 537 Davey, Jenny 532 Davies, D. Seaborne 290, 294 Davis, John K. 94-8 Davis, Michael 79, 80 Davis, Lennard J. 479 de Beauvoir, Simone 154 Descartes, René 151 Dickens, Bernard 302, 323 Donaldson, Lord 524 Doyal, Len 524 Dresser, Rebecca xv, 453-8 Drife, James 529 Duggan, Maria 170, 181 Durkheim, Emile 41

564

Abortion

Duster, T. 472 Dworkin, Andrea 217 Dworkin, Ronald xiv, 343-94, 519 East, Edward Hyde 2 95-6 Edwards, R.B. 431, 432, 461, 4 6 2 ,4 6 4 ,4 6 5 Einstein, Albert 463 Ellenborough, Lord 289, 294, 296, 299-300, 301 Ely, John H. 346 Erde, Edmund L. 432 Evans, W.D. 302-3 Farrant, Wendy 174 Feinberg, Joel 122 Ferguson, Philip M. 470, 471, 494, 499-500 Field, Martha 532, 533 Finger, Anne 486 Finnis, John xii, 29-57 Flaherty, John 251-2 Fleischman, Alan R. xv, 447-51 Fletcher, J.C. 467,471 Fonda, Henry 17, 23, 27, 52, 57, 122 Foot, Philippa 45, 46, 51 Ford, Norman 3 Furedi, Ann 528, 531 Gallagher, Janet xiii, 237-86 Gandhi, Mahatma 463 Gartner, Alan 494 Gavigan, Shelley xiv, 289-312 Gelder 181 Genovese, Kitty 24, 25, 32 Gericke, G. 532 Gert, Bernard 431 Gilligan, Carol 99, 123,521 Gillon, Raanan xi, xii, 3-7, 528 Gliedman, J. 474 Glover, Jonathan 528, 531 Goethe, Johann W. von 139 Gosden, Roger 521, 530, 536, 537, 538 Green, R. 470 Grisez, Germain 47, 48 Groce, Nora E. 497, 498 Grontkowkski, Christine R. 151 Grubb, Andrew 524 Guthrie, Woody 463 Hale, Sir Matthew 290, 292, 293-4, 295, 296, 297,298 Hand, Judge Learned 346 Haraway, Donna 148 Hare, R.O. 39 Harlan, Justice 378 Harris, John xv, 4, 461-5, 530, 533, 538

Harrison, Beverley W. 100 Harrison, Michael 152 Hart, H.L.A. 4 5 -6 Havard, J.D.J. 294-5 Hawkins, William 290, 292, 298 Heilig, Steve xv, 4 63-6 Helium, Anne 534 Helm, David T. 480-81 Hill, Paul 333 Hillier, Sheila 176 Himma, Kenneth E. xii, 87-94, 94-5 passim , 96, 97-8 passim Himmelweit, Susan xiii, 169-87 Hitler, Adolf 195, 445 Hawking, Stephen 463 Hoa, H.T. 537 Hobbes, Thomas 190 Hohfeld, W.N. 31 Holmes, Helen B. 176, 520 Hoskins, Betty 176 Hubbard, Ruth 486 Huxley, Aldous 6 Ikonomidis, Sharon 529 Jackson, Emily xvi, 519-46 Jing-Bao Nie xiv, 427-39 Jones, B. 461 Jones, Owen 537 Judge, Lord Justice 536 Kaplan, Deborah 486 Keller, Evelyn F. 151, 159 Kent, Deborah 497, 501 Keown, John 522 Kishwar, Madhu 172 Kitcher, Philip 534-5 Kittay, Eva F. 488, 495 Knoppers, Bartha M. 533 Koch, T. 461,462, 463, 464 Laberge, Claude 533 Lampley, Bree Walker 483 Langer, Richard 68-9, 81, 83 LaoZi 434 Lattimer, Maxine 528 Law, Edward see Ellenborough Law, Sylvia 524, 528 Lawrence, Justice 303 Lee, Ellie 532 Lippmann, Abby 472, 473, 486, 534 Lipsky, Dorothy K. 494, 498 Locke, John 6 ,1 7 9 Lomansky, Loren 109

Abortion Low, Lawrence 535 Luker, Kristin 100, 158, 319, 368 McCullough, Laurence B. 455 McDonnell, Kathleen 181 McGoldrick, Dr 326, 327 Mackenzie, Catriona xii, 119-38 MacKinnon, Catharine A. xiii, 189-236 McNicoll, Geoffrey 432 Malinowski, Michael 533 Mao Zedong 427 Mead, Margaret 106-7, 110 Means, Cyril C. jr 291-2, 295, 296 Mencius 434 Menhennitt, Justice 325, 326, 327, 334 Menon, Nivedita xvi, 539, 547-62 Merleau-Ponty, Maurice 134 Michie, S. 536 Mill, John Stuart 436 Miller, Peta-Gaye xiv, 395-412 Millet, Kate 237 Miranda, Sara 480-81 Miringoff, Marque-Luisa 533 Modell, Bernadette 531, 535, 536 Modell, Michael 531, 536 Mohr, James 319 Monson, Pamela S. 273 Morgan, Derek 529 Mozart, Wolfgang A. 462 Mudur, Ganapati 538, 539 Mussolini, Benito 445 Nagel, Thomas 80 Nathanson, Bernard 140, 141, 143, 145, 152, 162 Nelkin, Dorothy 534 Nelson, James L. 488, 489, 490, 503, 511 Noddings, Nell 99 Nozick, Robert 431 O’Brien, Mary 154 O’Connor, Justice Sandra Day 235, 236, 330 Okin, Susan M. 560 Overall, Christine 120, 135-7 passim Parens, Erik xv, 477-517 Parfit, Derek 138 Pateman, Carole 179 Paterson-Brown, Sara 530 Petchesky, Rosalind P xiii, 100, 138-68, 182, 329, 558 Petersen, Kerry xiv Phillips, Anne 179 Plato 151,433 Posner, Richard A. 343, 350, 351, 352, 353, 355, 363, 386, 388

565

Pius XI, Pope 43 Pius XII, Pope 43 Powledge, Tabitha 176 Press, Nancy 482, 486, 488, 510 Rajan, Julie V.G. 537, 538, 539 Ravindran, Sundari 416 Rawls, John 39 Reagan, Ronald 332, 334, 463 Rehnquist, Chief Justice 364 Rembrandt 499 Ren-Zong Qiu 434 Richards 39 Rigdon, Susan 538 Robertson, John 239, 274, 519, 538 Robertson, Pat 140 Roggencamp, Viola 172 Romaine, Dianne 107 Ross, Steven 120 Roth, W. 474 Rothman, Barbara K. 146, 173, 174, 176, 177, 182 Rousseau, Jean-Jacques 190 Ruddick, Sara 495 Ruddick, William 492-3 passim , 495 Russell, William O. 292 Savage, Wendy 181, 182 Saxton, Marsha 486, 488, 498, 508 Schuklenk, U. 467 Shange, Ntozake 206 Sheldon, Sally 520, 521 Shimp, David 251 Silverstein 85 Singer, Peter 104, 529 Skene, Loane 532, 535 Smith, Adam 178 Sofia, Zoe 146 Stanford, Sir William 291, 292 Steel, David 6, 522 Steinbacher, Roberta 176 Steinbock, Bonnie 499 Stephen, James F. 432 Stevens, Justice 345 Stone, Christopher 100, 108 Stopes, Marie 551 Sumner, L.W. 102, 104-5 passim Tancredi, Lawrence 534 Taylor, Paul W. 108 Thomson, Judith J. xii, 9-28, 29-31 passim , 33-7 passim , 43, 45, 46, 48, 50, 5 1 -6 passim , 57, 59-62 passim , 63, 73, 75, 81, 85, 86, 87-8 passim, 92, 93, 95, 98, 110, 120, 123, 127, 133, 135, 138 Tinckler, Margaret 295, 296

566

Abortion

Tomlinson, Suzanne 532, 535 Tooley, Michael 74, 75, 102, 138 Toynbee, Polly 170 Truth, Sojourner 206 Wachbroit, Robert 535 Walker, L.S. 472 Walker, Nigel 293, 294 Wallerstein, Claire 537 Wamock, Mary 535 Warren, Mary A. xii, 99-118, 119, 120, 122, 126, 127, 129, 133, 135, 138,520 Wasserman, David 535 Watson, James D. 469-70, 470-71 Watts, Geoff 535 Weil, Simone 189 Weiss, Rick 537 Wells, Celia 521

Wertheimer, Alan 431 Wertheimer, Roger 30, 56 Wertz, Dorothy C. 467, 471, 483, 504, 506, 532, 534 West, Robin 521 White, Justice 348 White, M.T. 473 Wilfond, B. 472, 473 Williams, Glanville 305 Wilson, Justice Bertha 235 Wilson, Thérèse S. xv, 4 63-6 Winner, Ellen 471 Wolgast, Elizabeth 100, 109 Woodfall, William 300 Wright, Beatrice, B.A. 471 Wright, Judge 265 Zhuang Zi 434