What's The Value of a Fetus?

October 26, 2003


With the Senate's passage last week of the Partial-Birth
Abortion Ban Act of 2003, supporters of abortion rights
face an increasingly conspicuous problem. It's not simply
that it is set to be the first federal law to criminalize a
specific abortion procedure. It's that they still don't
know how to articulate the value of unborn human life.

During the debate, anti-abortion senators brandished
pictures of second-trimester fetuses and asked whether they
were "persons" or "blobs of tissue." Senators who opposed
the ban ducked the question, leaving the impression that
they regarded the fetus as a blob. This is a failure of
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 earlier
in pregnancy. What's significant is that it is part of a
larger plan to circumvent the right to abortion - a right
protected by the Supreme Court and public opinion - and
establish fetal personhood in other contexts. If supporters
of abortion continue to treat the fetus as a blob in these
other contexts, they'll subvert not only their opponents'
principles but also their own.

Recent legislation shows how opponents of abortion are
pursuing their strategy - which they hope will lead to
undermine the basic right to an abortion. The title of the
bill, the Partial-Birth Abortion Ban Act, is no accident:
abortion rights don't apply, they argue, because the fetus
is killed when it is mostly outside the woman's body. Last
year, they made a similar argument for the Born Alive
Infants Protection Act, which (redundantly) forbids the
killing of a fully delivered baby. President Bush's
restrictions on government-financed stem cell research go
further, blocking the destruction of embryonic human life
outside the womb.

Within the womb, the new strategy focuses on defending the
fetus's well-being only insofar as it coincides with the
woman's choice. Last year, the administration classified
fetuses as "children" eligible for subsidized medical care
under the State Children's Health Insurance Program. The
next abortion-related bill likely to reach Mr. Bush's desk
is the Unborn Victims of Violence Act, which would make the
penalty for killing or injuring a fetus during a crime
equal to the penalty for killing or injuring a person.

That's not to say that opponents of abortion rights have
been consistent in their claim of fetal personhood. Mr.
Bush does not oppose abortion in cases of rape or incest,
for example. And the administration has ruled that fetuses
of noncitizens - but not children born abroad to
noncitizens - are eligible for the health insurance
program. Why the discrepancy? "Unborn children do not have
immigration status as `aliens' and thus are not precluded
from receiving federal means-tested benefits," says the
administration. In other words, fetuses can't be aliens,
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 guidelines
to cover poor pregnant women. Their bill makes no reference
to the gestating entity until it is born. Likewise, in lieu
of the Unborn Victims of Violence Act, they offer
legislation to punish "crimes against women when the crimes
cause an interruption in the normal course of their
pregnancies." The bill never mentions the fetus.

Why go to such lengths to ignore the developing human?
Because, as one women's rights group puts it, "treating the
fetus as a legal entity separate from the pregnant woman
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 fetal
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. Wade, the
Supreme Court upheld the right to abortion while
acknowledging the state's "important and legitimate
interest in protecting the potentiality of human life." The
court has struck down bans on abortion not because the
fetus is nothing, but because, before viability, its legal
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 the
initiatives put forth by abortion opponents seek to
address, albeit clumsily, issues that supporters of
abortion rights also say they care about, like domestic
violence and prenatal health care. If the developing human
has legal value and is pitted against a principle less
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 - courts
may protect the developing human. But if it's nothing, they

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 person.
The state has an important and legitimate interest in
protecting the potentiality of human life, not just against
post-viability abortions, but against abusive boyfriends,
morally indifferent biotechnology companies and treatable
diseases in women who can't afford health insurance.

Protecting this interest requires admitting that unborn
human life has value. By denying that value, supporters of
abortion rights effectively deny an unborn human legal
protection from any threat, in any context. Is that really
what they want?

William Saletan, chief political correspondent for Slate,
is author of "Bearing Right: How Conservatives Won the
Abortion War."