The Lessons of Fetal Viability

by Sherry F. Colb

In my Verdict column for this week, I raise the question whether there is an inconsistency between being a committed ethical vegan, on the one hand, and being pro-choice on abortion, on the other. The column follows another on the question of whether violence has any ethical place in a principled movement for animal rights or for the rights of human fetuses.  Both columns address issues raised in Beating Hearts: Abortion and Animal Rights, a book co-authored by me and fellow blogger Michael C. Dorf, that takes up some of the common challenges and dilemmas that face the pro-life and animal rights movements.

In this post, I want to dwell on a line that our current constitutional law doctrine draws between protected abortions and those abortions that may, in general, be subjected to criminal prohibition. That line is viability. In Roe v. Wade and then again in Planned Parenthood v. Casey, the U.S. Supreme Court held that after viability, except where a woman's life or health requires an abortion, the Constitution no longer protects a woman's right to terminate her pregnancy. The big question is why.

In my column and in Beating Hearts, I and then I and my co-author, respectively, propose that the sensible line between abortions that do and abortions that do not raise serious moral questions, respectively, is sentience, the point at which an organism--whether human or nonhuman--begins to have subjective experiences such as pain or pleasure while living in the world. Because sentience is an important moral line, we argue, a late-term abortion that post-dates fetal sentience raises a tragic ethical dilemma between coercing a woman to serve as an incubator against her will, on the one hand, and sacrificing the life of an already-sentient being--"someone" rather than "something," on the other.

But what does viability have to recommend it? Viability designates--at least in theory--the line between a fetus that can survive outside a woman's womb and a fetus that must remain in utero as a condition of survival. Is there a morally relevant difference between someone who can breathe on his own (or with medical assistance) and someone who cannot do so? Do we believe that a man in the process of drowning is in some way morally inferior to a man who can breathe easily? If viability as a line is meant to distinguish between moral unequals, it seems that it does a very poor job of that.

Viability, however, may do something else that is very useful in our thinking about abortion. It designates the point at which the two effects of abortion may be teased out from each other. Until viability, a woman who wants to regain her bodily integrity and end the enormous burden that pregnancy places on her body can do so only at the cost of ending the fetus's life. By definition, a non-viable fetus cannot be separated from the mother without dying. Once the fetus is viable, however, it would be possible to say with clarity that a woman has the right to (a) end her status as pregnant, but does not have the right to (b) procure the death of her fetus as such (particularly if the fetus is already sentient).

What viability does for us, then, and what might have recommended it to the Justices is that it has the potential to restore to women the three choices that people ordinarily possess with respect to  another being in trouble:  (1) be a Good Samaritan; (2) be a Bystander; or (3) affirmatively harm the other being.

Prior to viability, a woman must either do #1 or #3.  Being a bystander is simply not an option, and the woman is therefore caught between the extremes of affirmative violence and intensive and intrusive obligations of Good Samaritanship. Once she has the bystander option--an option that viability (in theory) can give her, the woman could decide to remove her fetus from her body and let someone else take care of him or her. That is not, at present, the law of viability and abortion under the precedents.  It is, however, a useful way of thinking about what it means to be pro-choice and to favor bodily integrity without necessarily endorsing a right to kill one's own fetus at whatever stage of pregnancy it happens to occupy. Viability thus lends some clarity to what remains an area of law in need of still greater clarity.