What's The Value of a Fetus?
October 26, 2003
By WILLIAM SALETAN
With the Senate's passage last week
of the Partial-Birth
Abortion Ban Act of 2003, supporters of abortion
face an increasingly conspicuous problem. It's not
that it is set to be the first federal law to
specific abortion procedure. It's that they still
know how to articulate the value of unborn human
During the debate, anti-abortion
pictures of second-trimester fetuses and asked
were "persons" or "blobs of tissue." Senators who
the ban ducked the question, leaving the impression
they regarded the fetus as a blob. This is a failure
both moral vocabulary and political strategy.
The danger of the bill is not merely
that it is the first
step in a new effort to ban abortions earlier and
in pregnancy. What's significant is that it is part
larger plan to circumvent the right to abortion - a
protected by the Supreme Court and public opinion -
establish fetal personhood in other contexts. If
of abortion continue to treat the fetus as a blob in
other contexts, they'll subvert not only their
principles but also their own.
Recent legislation shows how
opponents of abortion are
pursuing their strategy - which they hope will lead
undermine the basic right to an abortion. The title
bill, the Partial-Birth Abortion Ban Act, is no
abortion rights don't apply, they argue, because the
is killed when it is mostly outside the woman's body.
year, they made a similar argument for the Born Alive
Infants Protection Act, which (redundantly) forbids
killing of a fully delivered baby. President Bush's
restrictions on government-financed stem cell
further, blocking the destruction of embryonic human
outside the womb.
Within the womb, the new strategy
focuses on defending the
fetus's well-being only insofar as it coincides with
woman's choice. Last year, the administration
fetuses as "children" eligible for subsidized medical
under the State Children's Health Insurance Program.
next abortion-related bill likely to reach Mr. Bush's
is the Unborn Victims of Violence Act, which would
penalty for killing or injuring a fetus during a
equal to the penalty for killing or injuring a
That's not to say that opponents of
abortion rights have
been consistent in their claim of fetal personhood.
Bush does not oppose abortion in cases of rape or
for example. And the administration has ruled that
of noncitizens - but not children born abroad to
noncitizens - are eligible for the health insurance
program. Why the discrepancy? "Unborn children do not
immigration status as `aliens' and thus are not
from receiving federal means-tested benefits," says
administration. In other words, fetuses can't be
because they aren't people.
Abortion-rights supporters, on the
other hand, deny the
unborn human any legal significance in its own right.
Rather than include the fetus directly in the health
insurance program, for example, they have proposed
legislation to expand the program's eligibility
to cover poor pregnant women. Their bill makes no
to the gestating entity until it is born. Likewise,
of the Unborn Victims of Violence Act, they offer
legislation to punish "crimes against women when the
cause an interruption in the normal course of their
pregnancies." The bill never mentions the fetus.
Why go to such lengths to ignore the
Because, as one women's rights group puts it,
fetus as a legal entity separate from the pregnant
creates the potential for an adversarial relationship
between the woman's health needs and those of her
developing fetus." This is an objection not just to
personhood but to fetal distinctness.
Treating the fetus as nothing may be
the surest way to keep
abortion legal. But it isn't necessary. In Roe v.
Supreme Court upheld the right to abortion while
acknowledging the state's "important and legitimate
interest in protecting the potentiality of human
court has struck down bans on abortion not because
fetus is nothing, but because, before viability, its
value does not exceed its mother's right to privacy.
As the debate about unborn life
continues to expand beyond
abortion, this distinction becomes crucial. Many of
initiatives put forth by abortion opponents seek to
address, albeit clumsily, issues that supporters of
abortion rights also say they care about, like
violence and prenatal health care. If the developing
has legal value and is pitted against a principle
compelling than its mother's right to privacy - for
example, a corporation's freedom to mass-produce and
destroy embryos, or a welfare agency's authority to
discourage poor women from completing pregnancies -
may protect the developing human. But if it's
There's a simple solution to this
dilemma: by applying the
language of Roe, supporters of abortion rights can
acknowledge the fetus has legal value but is not a
The state has an important and legitimate interest in
protecting the potentiality of human life, not just
post-viability abortions, but against abusive
morally indifferent biotechnology companies and
diseases in women who can't afford health insurance.
Protecting this interest requires
admitting that unborn
human life has value. By denying that value,
abortion rights effectively deny an unborn human
protection from any threat, in any context. Is that
what they want?
William Saletan, chief political
correspondent for Slate,
is author of "Bearing Right: How Conservatives Won