SELF-INFLICTED ABORTION

Dorf on Law: Self-Inflicted Abortion and the Difficulty of Classification


Posted: 21 Dec 2016 05:30 AM PST

by Sherry F. Colb

In my Verdict column for this week, I discuss the case of a Tennessee woman, Anna Yocca, who has been charged with several offenses, including attempted murder and attempted criminal abortion, for allegedly using a coat hanger to try to terminate her pregnancy at 24 weeks gestation.  My column analyzes the “murder” classification and suggests that it has something to it but that it should ultimately not apply, because the act being prosecuted took place while the fetus was located inside the woman’s body.  I also consider some lessons that both pro-choice and pro-life activists can take from what is inarguably a tragic situation for Anna Yocca.

In this post, I want to consider why I believe that so long as the fetus is located inside the woman’s body, her action should be considered an abortion rather than a murder (or in Yocca’s case, an attempted abortion rather than an attempted murder).  On the one hand, the fetus is viable.  This is important because it means that if Yocca truly wanted to stop being pregnant, she could in theory have done so without killing (or attempting to kill) the fetus.  She could, for example, have induced labor and given birth to the fetus whom/that she no longer wanted to carry.

But is it fair to ask of a woman that she deliver what will inevitably be a compromised infant at 24 weeks as the price of not wanting to be pregnant anymore?  In other words, if a woman is to have the right to terminate her pregnancy at 24 weeks (which, due to fetal viability, she does not have under existing constitutional law), does it make sense to demand that she deliver the fetus alive rather than performing a life-ending abortion, given that the baby will confront many serious health difficulties as a result of being born so prematurely?  Arguably, it does not.  Unless the fetus has reached a stage at which its prematurity will likely not have a major effect on its life prospects (e.g., at 32 or 33 weeks), it may be the most humane thing to say that if a woman is to terminate her pregnancy, she should do so in the usual way, by simultaneously ending her pregnancy and ending the life of the fetus.  I am torn about this, though, because once the baby is born alive, I would not favor euthanizing him or her, and it seems like that position is inconsistent with supporting the right of the woman not only to terminate her 24-week pregnancy but to kill the fetus in the process.

This gets us back to the relevance of the fact that the fetus is located inside the woman’s body at the time that she kills it.  That fact seems to make it an abortion rather than a murder that is taking place. This is at least in part because she is doing something to her body, and murder feels like a category that ought to apply only when someone does something to someone outside of her body.  Our understanding of the prototypical murder, then, is informed by a view of the perpetrating individual as one person, separate from the victim, rather than one person containing another person who is the victim of the murder.  This may reflect the fact that the man’s life cycle continues to be the model for our law and accordingly, the uniquely female state of being one person who contains another does not make its way into any of the neat categories designed by the law.  This reality suggests that when we encounter this uniquely female state of being, we ought to be careful about classifying it as though it were identical to the more familiar, male ways of being (i.e., where an individual who aggresses against another individual is physically separate from the other individual at the time).

If we imagine an artificial uterus, things become far simpler.  At the point that we can take a fertilized egg and place it inside a working artificial uterus for the entire gestational period, the question of when a rights-bearing life begins will become far more important than it currently is.  There will, at that time, be the possibility of a woman wishing to terminate the life of a fetus without the fulfillment or frustration of this wish having any potential impact on the woman’s bodily integrity.  At that point, the woman will be more like a man (with the caveat that she will not be intruding on anyone’s bodily integrity by either forcing a gestating woman to remain pregnant against her will or forcing a gestating woman to terminate her pregnancy against her will).  In the view that Michael Dorf and I put forth in our book, Beating Hearts:  Abortion and Animal Rights, the fetus becomes “someone” who has interests, and can therefore have rights, at the point of fetal sentience.  There are disputes about when this occurs, but the consensus places it somewhere between week 20 and week 30 of pregnancy.  If this line were to be adopted in the world of the artificial womb, then the woman (or the man) could terminate the life of the fetus up until that point and not beyond it.  Disputes might come to revolve around whether the right to avoid becoming a parent trumps the right to become a parent, in the event that the father and mother of the pregnancy disagree on termination prior to the point of fetal sentience.  But since viability would coincide with conception (due to the availability of the artificial uterus), killing the fetus would no longer be a necessary consequence of terminating a pregnancy at any stage.  This would mean that once the fetus acquires the status of a rights-bearing being (at sentience, as we would suggest), killing the fetus would really be no different from killing a born person.

In the world we live in, however, there is no artificial uterus, and viability seems to happen at around 23 or 24 weeks of pregnancy.  Therefore, an attempt to terminate a pregnancy will generally entail the killing of the fetus and even where it might not, it will necessarily involve a woman doing something to her own body rather than to a being located outside of her body.  For this reason, regardless of whether the fetus is viable and even sentient, it would seem that an abortion calls for a distinct classification from that which we would attach to killing someone whose body and life are physically separate from that of the perpetrator.

Consider the following potential counterexample.  If a woman is watching her baby boy and she takes a drug that she knows will make her fall asleep, she could be held criminally responsible for any harm that comes to her baby as a result of her neglect.  If the baby were to die, she might be guilty of manslaughter or some other homicide crime, despite the fact that her wrongdoing involved her doing something to her own body rather than directly to another body outside of herself.  So why shouldn’t a late-term abortion fall into the same category?  In both cases, the woman acts upon her own body with the consequence of harm coming to a sentient being (a baby or sentient fetus).  What is the difference?

The difference, I would suggest, is that when we hold the mother accountable for taking drugs that result in child neglect, we are not truly condemning the fact that she took the drugs.  Instead, we are condemning her for the fact that when she took the drugs, her baby was dependent on her for safety. Had she called a babysitter or a friend or someone else to watch the baby while she slept, her taking sleeping pills would not represent a culpable act toward her baby.  Her action on her own body is thus separable from the harm that comes to the baby and is only contingently linked to that harm, because of other circumstances that might have been different.

In the case of a pregnant woman, by contrast, there is no circumstance under which the woman could have done “the same thing” to her body without having the harmful consequence to her fetus.  She is pregnant, so she has no choice when she acts upon her body but to act upon her fetus as well.  This is true whether she is taking drugs or vitamins or inserting a coat hanger into her uterus.  She is tied to the fetus because of the pregnancy and therefore has no option of acting only upon herself, the way that a woman planning to take a sleeping pill does.  It is true, of course, that the woman who terminates her pregnancy (and her fetus’s life) is likely aiming to kill the fetus rather than just to do something to herself (by contrast to the woman who takes a sleeping pill).  Yet the fact that the pregnant woman has no option of severing her own actions on her body from the impact of those actions on her fetus places her in a vulnerable position that people who live in physically separate bodies from other individuals in their lives are not.  For that reason, homicide seems like the wrong category into which to place the killing of a fetus still located inside one’s body.

None of this is to say that killing a fetus located inside one’s body is always a morally neutral act or even that the law should have nothing to say about it.  Once the fetus is truly viable (as opposed to viable in a way that will result in a very compromised and suffering child if born alive), it seems generally to be legitimate to ask of the woman that she deliver the fetus alive rather than kill it at the point that she feels she no longer wishes to be pregnant.  And if the reason that she no longer wishes to be pregnant is that she wants her fetus to be dead, then there may be a point in pregnancy (what I would call “true viability”) at which she does not get to enact that wish without facing legal consequences.  Though she continues to have an interest in no longer being pregnant, that is, she does not continue to have an interest in procuring the death of her fetus.  Yet even if the act is an illegal abortion, it should continue to be called and treated as an abortion, a less serious offense than if she were to kill a physically separate being, in virtue of her lacking the option of acting on her body without simultaneously acting on the body of the fetus.  I am interested in knowing whether readers share this intuition, that so long as a woman has no option of acting solely on her own body, her actions on her body (including the killing of her fetus at an impermissible point in pregnancy) should fall into a different category from the killing of a physically separate baby (or sentient fetus in an artificial womb).