Autonomy: Reproductive Rights

 This is the third in a series concerning autonomy.

“The state controlling a woman would mean denying her full autonomy and full equality.” - Ruth Bader Ginsburg, US Supreme Court Justice

On June 24th, 2022, in a shocking decision, the US Supreme Court reversed Roe v Wade, which had protected a woman’s right to an abortion for nearly half a century. This threw the power back to the States to decide the legality of abortion.

In Roe v Wade, the Supreme Court focused on the Due Process Clause found in the Fifth and Fourteenth Amendments to the United States Constitution. The Due Process Clause prohibits arbitrary deprivation of “life, liberty, or property” by the government except as authorized by law. The Supreme Court determined that the Due Process Clause provides a fundamental “right to privacy,” which protects a pregnant woman’s right to an abortion.

For the purposes of this blog post, I’m looking not at privacy but at another consideration in this debate, autonomy.

 

I’ve mentioned several times that the only time the State has the right to restrict autonomy is when there’s harm or its potential. The argument by anti-abortion groups is that the fetus is a human and entitled to the human right to protection from harm.

Let me mention what’s not for consideration in this post, the view that “life begins at conception.” This view is based on the idea that a soul enters the body at conception. This is a purely religious belief and therefore is irrelevant when discussing government laws and regulations.

One claim by anti-abortion activists is that a fetus is living and human. Yes, a fetus is made of living material, and yes, it’s genetically human. However, that doesn’t make it a person with rights. Just because a zygote, the one-celled product of the union of sperm and egg, has 46 chromosomes and is made of human tissue doesn’t make it a person. Nor does the zygote’s potential to become an autonomous person make it one. You have 46 chromosomes in each skin cell, which is living human material. Theoretically, this skin cell could be used to clone a human, but that doesn’t make a skin cell a person. 

In the last few years, anti-abortion activists have used what appears to be a heartbeat at six weeks to claim that a fetus is a person with rights at that time. There are two problems with the heartbeat law.

First, a heartbeat isn’t possible at six weeks gestation because there are no heart valves to create one. What’s being detected is the electric activity within the embryo. The ultrasound generates the illusion of a heartbeat from that electrical activity. 

Second, heart cells will automatically respond in each other’s presence. Scientists found that heart cells will beat in unison in a lab dish. But that doesn’t make that clump of cells in the lab a person.

I will grant that an argument could be made that at 24 weeks, a fetus may be considered a person because, at that point, it may be able to survive outside the mother. One might say that it has become autonomous. This is why in Roe v Wade, the Supreme Court determined that abortions during the third trimester could be limited. 

It should be noted that third-trimester abortions are rare and only occur when the mother’s health is in danger. 

Bottom-line conclusion: because there is no harm to another, the government does not have the right to restrict a woman’s choice of abortion, except for the third trimester.