The U.S. Supreme Court will soon hear the fate of Roe v. Wade ruled, the landmark 1973 ruling that established the nationwide right to choose an abortion. If the court’s decision is close to the leaked draft opinion first published by Politico in May 2022, the court’s new conservative majority will overthrow Roe.
Fierce debate over the verdict is often dominated by politics. Ethics attracts less attention, although this is at the heart of the legal controversy. As a philosopher and bioethicist, I study moral issues in medicine and health policy, including abortion.
Bioethical approaches to abortion often rely on four principles: respect patients’ autonomy; non-malice, or “do no wrong”; charity, or provide beneficial care; and justice. These principles were first developed during the 1970s to guide research involving human subjects. Today, they are essential guides for many physicians and ethicists in challenging medical cases.
The ethical principle of autonomy dictates that patients are entitled to make decisions about their own medical care whenever they can. The American Medical Association’s Code of Medical Ethics recognizes a patient’s right to “receive information and ask questions about recommended treatments” to “make informed decisions about care.” Respect for autonomy is enshrined in laws that regulate informed consent, which protects patients’ right to know the available medical options and to make an informed voluntary decision.
Some bioethicists regard respect for autonomy as a firm support for the right to choose abortion, arguing that if a pregnant person wants to end their pregnancy, the state should not interfere. According to one interpretation of this view, the principle of autonomy means that a person owns his body and must be free to decide what happens in it and with it.
Opponents of abortion do not necessarily challenge the healthy to respect people’s autonomy, but may differ on how to interpret this principle. Some consider a pregnant person to be “two patients” – the pregnant person and the fetus.
One way to reconcile these views is to say that as an immature human being “becomes increasingly self-conscious, rational, and autonomous, it is increasingly harmed,” as philosopher Jeff McMahan writes. In this view, a late-stage fetus is more interested in its future than a fertilized egg, and the later in pregnancy an abortion therefore takes place, the more it can hinder the fetus’ developing interests. In the US, where 92.7% of abortions occur during or before 13 weeks of pregnancy, a pregnant person’s rights can often outweigh those attributed to the fetus. Later in pregnancy, however, rights attributed to the fetus may take on greater weight. The balancing of these competitive claims remains controversial.
Non-maliciousness and charity
The ethical principle of “do no harm” prohibits intentionally hurting or injuring a patient. It requires medically competent care that minimizes risks. Non-malice is often accompanied by a principle of charity, a duty to benefit patients. Together, these principles emphasize doing more good than harm.
Minimizing the risk of harm is prominent in the World Health Organization’s opposition to banning abortion because pregnant people who face obstacles to abortion often resort to unsafe methods, which represent a major cause of avoidable maternal deaths and diseases worldwide.
Although 97% of unsafe abortions occur in developing countries, developed countries that restrict access to abortions have caused unintended harm. In Poland, for example, doctors who fear persecution have hesitated to administer cancer treatments during pregnancy or remove a fetus after a pregnant person’s water broke early in pregnancy, before the fetus became viable. In the US, restrictive abortion laws in some states, such as Texas, have complicated the care of miscarriages and high-risk pregnancies, endangering the lives of pregnant people.
However, Americans who are in favor of overturning Roe are primarily concerned about fetal damage. Regardless of whether the fetus is considered a person or not, the fetus may have an interest in avoiding pain. Late in pregnancy, some ethicists think that human care for pregnant people should include the reduction of fetal pain, regardless of whether a pregnancy continues. Neuroscience teaches that the human ability to experience feeling or sensation requires consciousness, which develops between 24 and 28 weeks of pregnancy.
Justice, a final principle of bioethics, requires that similar cases be treated in the same way. If the pregnant person and fetus are moral equals, many argue that it would be unfair to kill the fetus except in self-defense, if the fetus threatens the pregnant person’s life. Others believe that even in self-defense, the termination of the fetus’ life is wrong because a fetus is not morally responsible for any threat it poses.
Yet advocates of abortion point out that even if abortion leads to the death of an innocent person, it is not its purpose. If the ethics of an action are judged by its goals, abortion can be justified in cases where it achieves an ethical goal, such as saving a woman’s life or a family’s ability to care for their current children, to protect. Defenders of abortion also argue that even though the fetus has a right to life, a person does not have a right to everything they need to stay alive. For example, having a right to life does not imply a right to threaten another’s health or life, or to challenge another’s life plans and goals.
Justice is also about the fair distribution of benefits and burdens. Among rich countries, the US has the highest mortality rate associated with pregnancy and childbirth. Without legal protection for abortion, pregnancy and childbirth can become even more risky for Americans. Studies show that women are more likely to die while pregnant or shortly thereafter in states with the most restrictive abortion policies.
Minority groups may have the most to lose if the right to choose abortion is not upheld because they use an excessive proportion of abortion services. In Mississippi, for example, people of color represent 44% of the population, but 81% of those who receive abortions. Other states follow a similar pattern, which has led some health activists to conclude that “abortion restrictions are racist.”
Other marginalized groups, including low-income families, may also be hit hard by abortion restrictions because abortions are expected to become more expensive.
Putting politics aside, abortion raises profound ethical questions that remain uncertain, leaving courts to settle using the blunt instrument of law. In this sense, abortion begins as a moral argument and ends as a legal argument, in the words of the jurist and ethicist Katherine Watson.
Stopping legal controversies surrounding abortion will reach moral consensus. In short, articulating our own moral views and understanding those of others can bring all sides closer to a principled compromise.