abortion should be made legal essay

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Why Abortion Should Be Legalized

• Categories: Abortion Pro Choice (Abortion) Women's Health

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Published: Jan 28, 2021

Words: 1331 | Pages: 3 | 7 min read

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Introduction, why abortion should be legal.

• Gipson, J. D., Hirz, A. E., & Avila, J. L. (2011). Perceptions and practices of illegal abortion among urban young adults in the Philippines: a qualitative study. Studies in family planning, 42(4), 261-272. (https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1728-4465.2011.00289.x)
• Finer, L. B., & Hussain, R. (2013). Unintended pregnancy and unsafe abortion in the Philippines: context and consequences. (https://www.guttmacher.org/report/unintended-pregnancy-and-unsafe-abortion-philippines-context-and-consequences?ref=vidupdatez.com/image)
• Flavier, J. M., & Chen, C. H. (1980). Induced abortion in rural villages of Cavite, the Philippines: Knowledge, attitudes, and practice. Studies in family planning, 65-71. (https://www.jstor.org/stable/1965798)
• Gallen, M. (1979). Abortion choices in the Philippines. https://www.cambridge.org/core/journals/journal-of-biosocial-science/article/abs/abortion-choices-in-the-philippines/853B8B71F95FEBDD0D88AB65E8364509 Journal of Biosocial Science, 11(3), 281-288.
• Holgersson, K. (2012). Is There Anybody Out There?: Illegal Abortion, Social Work, Advocacy and Interventions in the Philippines. (https://www.diva-portal.org/smash/record.jsf?pid=diva2%3A574793&dswid=4931)

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Pro and Con: Abortion

To access extended pro and con arguments, sources, and discussion questions about whether abortion should be legal, go to ProCon.org .

The debate over whether abortion should be a legal option has long divided people around the world. Split into two groups, pro-choice and pro-life, the two sides frequently clash in protests.

A June 2, 2022 Gallup poll , 55% of Americans identified as “pro-choice,” the highest percentage since 1995. 39% identified as “pro-life,” and 5% were neither or unsure. For the first time in the history of the poll question (since 2001), 52% of Americans believe abortion is morally acceptable. 38% believed the procedure to be morally wrong, and 10% answered that it depended on the situation or they were unsure.

Surgical abortion (aka suction curettage or vacuum curettage) is the most common type of abortion procedure. It involves using a suction device to remove the contents of a pregnant woman’s uterus. Surgical abortion performed later in pregnancy (after 12-16 weeks) is called D&E (dilation and evacuation). The second most common abortion procedure, a medical abortion (aka an “abortion pill”), involves taking medications, usually mifepristone and misoprostol (aka RU-486), within the first seven to nine weeks of pregnancy to induce an abortion. The Centers for Disease Control and Prevention (CDC) found that 67% of abortions performed in 2014 were performed at or less than eight weeks’ gestation, and 91.5% were performed at or less than 13 weeks’ gestation. 77.3% were performed by surgical procedure, while 22.6% were medical abortions. An abortion can cost from $500 to over $1,000 depending on where it is performed and how long into the pregnancy it is.

• Abortion is a safe medical procedure that protects lives.
• Abortion bans endangers healthcare for those not seeking abortions.
• Abortion bans deny bodily autonomy, creating wide-ranging repercussions.
• Life begins at conception, making abortion murder.
• Legal abortion promotes a culture in which life is disposable.
• Increased access to birth control, health insurance, and sexual education would make abortion unnecessary.

This article was published on June 24, 2022, at Britannica’s ProCon.org , a nonpartisan issue-information source.

The Right to Choose at 25: Looking Back and Ahead

On January 22, 1973, the United States Supreme Court announced its landmark rulings that legalized abortion, Roe v. Wade and Doe v. Bolton. Two days later, a New York Times editorial predicted that the decisions offered "a sound foundation for final and reasonable resolution" of the abortion debate. Yet, in fact, the struggle that had resulted in the Supreme Court victories was far from over. Few in 1973 could have anticipated how explosive the issue of abortion would become and how difficult the right would be to retain. Nor could anyone then have known how much the availability of safe legal abortion would contribute to women's social, economic, and political advancement in the next quarter of a century.

With the Court's decisions in Roe and Doe, the barriers to safe legal abortion began to fall: states could no longer criminalize abortion; women could no longer be forced to choose between continuing an unwanted pregnancy or risking their health and lives by seeking an illegal abortion.

The new year marks the 25th anniversary of choice. It is a time to remember what it meant not to have the right to choose, to celebrate our advances, to reaffirm the importance of choice to women's health and equality, and to recommit ourselves to defending and expanding the right.

1. Establishing the Right to Choose in American Law

Abortion was not, in fact, illegal in most states until the second half of the nineteenth century. Before then, medical experts and other commentators believed that abortion was commonly sought and widely available. By their estimates, there was one abortion for every four live births.

But from the mid-nineteenth century, opposition to abortion began to emerge from several directions. Physicians charged their competitors -- mid- wives and folk healers -- with performing too frequent and unsafe abortions; the newly formed professional organizations of physicians sought criminal bans. A vocal group of native-born, white Americans condemned abortion as "race suicide" because it lowered their birth rate at a time when they feared being outnumbered by immigrants. Still others, reacting to the new movement for women's suffrage and other rights, worried that continuing access to abortion would permit women to stray from their traditional roles as wives and mothers. As a result of these converging sentiments, by the end of the century every state had enacted a law criminalizing abortion. Most made an exception only for abortions undertaken to preserve a woman's life.

These laws did not end abortion but merely sent it underground. The unsafe and unsanitary practice of illegal abortion maimed and killed thousands of women. Finally, in the 1960s, an outcry arose to make abortion legal again. The outcry came from doctors, legal reformers, clergy, and women themselves. The ACLU was in the forefront of this movement.

Led into the struggle by board members like Dorothy Kenyon, a feminist lawyer and judge, the ACLU was the first organization to call for a woman's right to choose abortion. Kenyon began pressing the issue as early as 1958, and she persisted until 1967, when the board affirmed "the right of a woman to have an abortion." She also brought the issue to the public, appearing on television talk shows and in print, where she called for an end to "cruel and unconstitutional abortion laws."

In 1965, the ACLU filed a friend-of-the-court brief in a landmark case that paved the way for the legalization of abortion. That case, Griswold v. Connecticut, challenged Connecticut's ban on the prescription, sale, or use of contraceptives, even for married couples. In a major legal breakthrough, the Supreme Court decided that restrictions on birth control violated the right to privacy protected by the Constitution.

Griswold greatly encouraged the activists who were waging a two-pronged campaign to legalize abortion. On one front, doctors, lawyers, clergy, and women called for the reform or repeal of state abortion laws. In the mid-1960s, the New York Civil Liberties Union helped organize a campaign to repeal New York's abortion law. In 1970, New York, Hawaii, Alaska, and Washington became the first states to repeal their abortion laws, making abortion more widely available, although some restrictions remained in effect in all four states.

On a second front, legal reformers brought test cases against criminal abortion laws in federal and state courts all over the nation, in the hope that one case would reach the Supreme Court. In 1971, the high court issued its first decision about abortion in U.S. v. Vuitch, a case argued by the ACLU's general counsel, Norman Dorsen. Police had arrested Dr. Milan Vuitch in Washington, D.C., claiming that he had violated the District's law permitting abortions only to preserve a woman's life or health. Dr. Vuitch argued that only a physician, not a prosecutor, could judge when an abortion was necessary to protect a woman's life or health. The Supreme Court did not overturn the statute as Vuitch sought, but it held that the burden of proof should be on a prosecutor who brought charges, not on a doctor. The Court also concluded that "health" should be understood to include considerations of psychological as well as physical well-being.

Dorothy Kenyon, the ACLU's longtime advocate of abortion rights, died at the age of 84 in 1972, a little too soon to see the fruition of her work. In 1973 the Supreme Court decided the two cases that upheld a woman's right to abortion, Roe v. Wade and Doe v. Bolton. Thanks to the seeds that Kenyon had sown, the ACLU was involved in both cases. Norman Dorsen was among the lawyers representing the plaintiffs in Roe v. Wade, and the ACLU of Georgia organized a trio of women lawyers to represent the plaintiffs in Doe v. Bolton.

Roe v. Wade challenged a Texas law prohibiting all but lifesaving abortions. The Supreme Court invalidated the law on the ground that the constitutional right to privacy encompassed a woman's decision whether or not to terminate her pregnancy. Characterizing this right as "fundamental" to a woman's "life and future," the Court held that the state could not interfere with the abortion decision unless it had a compelling reason for regulation. A compelling interest in protecting the potential life of the fetus could be asserted only once it became "viable" (usually at the beginning of the last trimester of pregnancy), and even then a woman had to have access to an abortion if it were necessary to preserve her life or health.

In Doe v. Bolton, the Supreme Court overturned a Georgia law regulating abortion. The law prohibited abortions except when necessary to preserve a woman's life or health or in cases of fetal abnormality or rape. Among other conditions, the law also required that all abortions be performed in accredited hospitals and that a hospital committee and two doctors in addition to the woman's own doctor give their approval. The Court held the Georgia law unconstitutional because it imposed too many restrictions and interfered with a woman's right to decide, in consultation with her physician, to terminate her pregnancy.

The Supreme Court's decisions in Roe v. Wade and Doe v. Bolton had nationwide impact. After the Court ruled the Texas and Georgia abortion laws unconstitutional, no other states could enforce similarly restrictive laws. When the Court made its landmark rulings, it was in step with public opinion. Public attitudes had shifted as a result of the decade-long campaign to legalize abortion. In 1968, only 15 percent of Americans favored liberalizing abortion laws; by 1972, 64 percent did.

A year after the Roe and Doe decisions, the ACLU created its Reproductive Freedom Project to defend and extend the right to choose. The Project has participated in almost all of the major Supreme Court cases dealing with reproductive rights since 1973.

2. What the Legalization of Abortion Has Meant for Women

The legalization of abortion has dramatically improved women's health. Abortion services moved from the back alleys into hygienic facilities staffed by health professionals. High-quality training, the ability of professionals openly to share their expertise with one another, and the development of specialized clinics all enhanced the safety of abortion services. In the early part of this century, an estimated 800,000 illegal abortions took place annually, resulting in 8,000 - 17,000 women's deaths each year. Thousands of other women suffered severe consequences short of death, including perforations of the uterus, cervical wounds, serious bleeding, infections, poisoning, shock, and gangrene. After legalization, deaths as a result of abortion greatly declined. In 1991, for example, 11 women died as the result of complications arising in legal abortions. Today, one death occurs in every 167,000 legal abortions, compared with one in every 30,000 in 1973.

Once Roe made it possible to obtain safe legal abortions, women have been having abortions earlier in their pregnancies when the health risks are the lowest. In 1973, only 38 percent of abortions were performed at or before eight weeks of pregnancy; in 1997, this percentage has risen to 52, and 89 percent of all abortions occur in the first 12 weeks. Only one percent takes place after 21 weeks. Today, abortion is one of the most commonly performed surgical procedures and is ten times safer than carrying a pregnancy to term.

The availability of safe legal abortion is a cornerstone that supports the remarkable advances women have made in American society in the past quarter of a century. As the Supreme Court observed in reaffirming Roe in 1992, "The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives." Not having to endure unwanted childbearing has made a critical difference to women at all stages of life -- the teenager who wishes to finish her education, the woman who does not want a child or does not want one yet, the overburdened mother who cannot cope with another child, and the older woman whose grown children have already left home and who mistakenly believed she could no longer conceive.

3. Defending and Expanding Reproductive Freedom

Since the landmark decisions of 1973, the ACLU Reproductive Freedom Project and our sister organizations have worked continuously to defend and expand reproductive rights. Our greatest challenge has been to try to assure that the right to choose extends to those whose lack of political power makes them easy targets for lawmakers: low-income women and young women. The Supreme Court held in 1980 that the federal constitution permits the government to withhold Medicaid funds for virtually all abortions, while continuing to fund all other medically necessary services, including prenatal care and childbirth. Yet bans on public funding for abortion rob low-income women of the right to choose by depriving them of the means to exercise their choice. We therefore turned to the state constitutions in an effort to restore low-income women's rights. A case won on state constitutional grounds provides strong protection for choice because it is insulated from federal constitutional review and is therefore unaffected by any erosion of the federal right to choose. Because the ACLU and its allies have succeeded in forestalling or overturning a number of funding bans in key states, 40 percent of Medicaid-eligible women once again have abortion coverage.

We have also sought to vindicate the right of low-income women to bear children. We first defended this right by asking the courts to compensate women who had been sterilized without their knowledge or consent. Our victories in such cases contributed to the development of national and local regulations to prevent sterilization abuse. In a more recent incarnation of this battle, we have defended the rights of welfare recipients to bear children without being subject to punitive "child exclusion" policies. Under these policies, federal or state governments attempt to deter childbearing by depriving welfare recipients of increases in benefits if they bear an additional child while receiving public assistance. We have opposed "child exclusions" at both the federal and state levels, and we helped to stop Congress from mandating that the states implement such policies as part of the restructuring of the welfare system in 1996.

Defending the rights of teenagers is another high priority. More than half of the states currently enforce laws that require minors to get permission from their parents or from a court before they can obtain abortions. Because parental involvement laws create unnecessary delays and effectively eliminate the option of abortion for some minors, we work to oppose the passage of such laws and to invalidate them where they are enacted. In the years since Roe, the courts have invalidated parental involvement laws under both the federal and state constitutions.

While fighting restrictions on minors' access to abortion, we work simultaneously to promote confidential contraceptive services and comprehensive sexuality education. We have repeatedly succeeded in blocking "squeal rules," which would mandate notice to parents before their teenage children receive contraceptive services. Our victories in these cases set precedents for our current defense of school-based programs in which condoms are made available to students in conjunction with comprehensive sexuality and HIV/AIDS education. Ready access to contraceptives and to medically accurate information can equip teenagers to act responsibly by protecting themselves and their partners from unwanted pregnancy and sexually transmitted disease.

Yet as our efforts to protect the rights of the most vulnerable women continue, the backlash against reproductive choice has escalated on other fronts. Beginning in the mid-1980s, vandalism, bombings, arsons, and assassinations threatened to shut down many abortion providers. Clinics, doctors, and other advocates of choice demanded federal protection and helped to persuade Congress to enact the Freedom of Access to Clinic Entrances Act of 1994 (FACE). This statute prohibits force, threats of force, physical obstruction, and property damage intended to interfere with people obtaining or providing reproductive health services. It does not apply to peaceful praying, picketing, or other free expression by anti-choice demonstrators -- so long as these activities do not obstruct physical access to clinics. FACE has reduced but by no means eliminated clinic violence.

In their latest maneuver, opponents of choice have hit upon the powerful tactic of proposing and, in many states, passing bans on safe abortion procedures. Although their sponsors characterize the bans as aimed at a single, "late," "gruesome" procedure, the bans are not in fact limited to any stage of pregnancy, and they define the conduct to be banned so broadly as to reach an array of safe and common methods of abortion. Recognizing that such bans pose serious threats to reproductive choice, we and other organizations have challenged them in states all over the country. Ten courts to date have enjoined various bans in whole or in part.

Thus the struggle to protect reproductive choice goes on, both to counter persistent attacks and to advance an affirmative agenda of enabling people to make informed and meaningful decisions about reproduction.

4. What You Can Do to Preserve the Right to Choose

If the right to choose is to survive and flourish on its 50th anniversary, those who came of age after Roe must rise to its defense. Current public opinion research indicates that the generations born in the 1960s and afterward take the right for granted. To the extent possible, we must use the 25th anniversary as an opportunity to teach our daughters and sons the history of the struggle for abortion rights and to enlist them in the movement for reproductive freedom.

We must also use the anniversary to defend abortion as a moral choice. Opponents of choice want to return to the time when abortion was illicit and deadly. In the meantime, they do everything possible to keep it shameful, to portray women who have abortions as immoral, inhumane, irresponsible, and frivolous. We must respond with a clear moral defense of abortion. We must remember that it is an act of violence to force an unwilling woman to bear an unwanted child. We must cultivate respect for women as moral actors who make their childbearing decisions based on profound concerns about their own lives and the lives of their families. Women make these decisions within the framework of their own religious beliefs, conscience, and values. We must stress that abortion is a responsible choice for a woman who is both unwilling to continue a pregnancy and unprepared to care for a child.

Finally, legislators in Congress and in the states are often deluged with postcards and letters from abortion opponents, but they say repeatedly that they do not hear enough from their pro-choice constituents. Please take the opportunity presented by the 25th anniversary to urge your federal and state legislators to protect reproductive freedom. Ask your federal legislators to:

SUPPORT the Equity in Prescription Insurance and Contraceptive Coverage Act

This bill is intended to correct a shocking gap in private health insurance: a lack of coverage for contraceptive services and supplies. The bill would require employment-related insurance plans to cover contraceptive services if they cover outpatient medical services in general. If the plans cover prescription drugs in general, they would be required to cover prescription contraceptive drugs and devices. Reducing the out-of-pocket costs of contraceptive services and supplies will enhance the public health, prevent unintended pregnancies, and lessen the need for abortion. Introduced in 1997, this legislation will be considered during the second session of the 105th Congress, which lasts from late January through the fall of 1998. Similar bills are pending in a number of states. Check with your state ACLU affiliate to see if yours is among them and what you can do to get your state legislators to support such legislation.

OPPOSE the Partial-Birth Abortion Ban Act of 1997

In 1997, for the second time, the anti-choice majority in Congress passed the so-called "Partial-Birth Abortion Ban Act." For the second time, President Clinton vetoed it. Congress is again set to attempt to override the President's veto.

By making physicians fearful of performing safe, common methods of abortion, the ban would seriously endanger women's health. Contact your Representatives and Senators and tell them not to override President Clinton's veto of this dangerous bill. Check with your state ACLU affiliate to see whether you should also be working to defeat such a ban in your state.

OPPOSE The Global "Gag Rule"

Anti-choice members of Congress want to re-impose the global "gag rule": they seek to prohibit private, non-governmental, or multilateral organizations receiving U.S. funds from administering overseas family planning programs that perform abortion or engage in any abortion-related speech or activity, even using their non-U.S. funds. Proponents of this "gag rule" will make another attempt to impose it in the early months of 1998. They will try to include it in a bill the Administration very much wants to enact -- a supplemental appropriations bill that would provide funds for the United States to pay its dues to the United Nations and funds for the International Monetary Fund. Ask your legislators to vote down any attempts to enact a global "gag rule."

OPPOSE Appropriations Amendments to Restrict Abortion Funding

Every year, anti-choice legislators in Congress target the appropriations bills that fund the various agencies of the federal government and attach amendments that largely prohibit the use of federal funds for abortions. As a result, millions of people who rely on the government for their health care have been denied abortion coverage. They include most Medicaid recipients, federal employees and their dependents, military personnel and their dependents, Native American women, federal prisoners, and low-income residents of Washington, D.C. In 1998, let your legislators know that you want them to oppose these restrictive amendments in appropriations bills. Tell them that the government should not intrude into an area of intimate, private decision-making by influencing people's options through its fiscal policies. Instead, the government should remain neutral on the issue of childbearing and allow people to make their own decisions.

Whenever you want to find out whether choice is threatened and what you can do to counter the threat, check the ACLU's Internet site, at http://archive.aclu.org.

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The Importance of Women’s Choice: Exploring the Reasons Why Abortion Should Be Legal Essay

Abortion has been a highly debated topic for many years, with varying opinions on the subject. While some argue that abortion should be illegal, others believe that women have the right to make decisions about their own bodies and that abortion should be legal. This issue is particularly relevant in today’s society, and if you want to have a boost in this topic, read this essay, written by a custom essay writing service .

In this why should abortion be made legal essay, a few reasons why abortion should be legal, including women’s right to choose, safety and regulation, the reduction of unwanted pregnancies, preventing children from being born into unsafe environments, and reducing stigma and shame.

Examining Whether Abortion Should Be Legal

Abortion is a highly controversial and emotional topic that has been debated for decades. The argument over whether or not it should be legal continues to spark intense discussions in politics, religion, and society. On the one hand, opponents of abortion argue that it is morally wrong and violates the sanctity of life. On the other hand, proponents of abortion argue that women have the right to make their own choices about their bodies and that banning abortion puts women’s health and safety at risk.

Women’s Right to Choose

Firstly, women have the right to make their own choices about their bodies. This includes the right to choose whether or not to have a child. By making abortion illegal, we are denying women this basic human right. Women should have the ability to make choices about their own lives, including having an abortion if they so choose.

Safety and Regulation

Secondly, banning abortion does not stop it from happening. When abortion is illegal, it is often done in unsafe and unsanitary conditions, leading to health complications and even death. Legalizing abortion would help to ensure that it is done in a safe and regulated environment, reducing the risk of complications.

Reduction of Unwanted Pregnancies

Thirdly, legalizing abortion can reduce the number of unwanted pregnancies. This is because women who have access to safe and legal abortions are more likely to use contraception to prevent future unwanted pregnancies. Additionally, by providing access to education about contraception and family planning, we can help reduce the number of unwanted pregnancies and the need for abortion.

Preventing Children from Being Born into Unsafe Environments

Fourthly, legalizing abortion can help reduce the number of children born into poverty or abusive households. Women who are unable to care for a child may choose to have an abortion rather than bring a child into an environment that is not safe or stable. By allowing women to make this choice, we can help prevent children from being born into situations where they may not receive the care and support they need.

Reducing Stigma and Shame

Legalizing abortion can help reduce the stigma and shame surrounding the topic. Women who have had abortions often face discrimination and judgment from others, which can lead to feelings of shame and isolation. By legalizing abortion, we can help reduce this stigma and create a more supportive and accepting environment for women who have made this choice.

The debate around whether abortion should be legal continues to be a divisive issue. However, the reasons why abortion should be legal are compelling and numerous. By legalizing abortion, we can ensure that women have access to safe and regulated procedures, reducing the risk of complications and even death. Additionally, women should have the right to make choices about their own bodies, which includes the right to choose whether or not to have a child. Legalizing abortion can also help reduce the number of unwanted pregnancies and prevent children from being born into unsafe or unstable environments. Finally, reducing the stigma and shame surrounding the topic can create a more supportive and accepting environment for women who have made this choice.

Ultimately, it is important to prioritize women’s health, safety, and autonomy in deciding whether abortion should be legal. By doing so, we can ensure that women are empowered to make decisions about their own bodies and lives.

Tips On Writing Why Abortion Should Be Legalized Essay

The topic of abortion is a sensitive and often controversial issue that affects women’s rights and autonomy. If you’re interested in advocating for women’s reproductive rights and want to write an essay on why abortion should be legalized, there are some important tips to keep in mind.

Conduct thorough Research

Before writing your argumentative essay about abortion, it is important to conduct research on the topic of abortion. This will help you understand the different arguments for and against abortion, and help you develop a more informed perspective on the issue.

Develop a Clear Thesis Statement

Your thesis statement should clearly state your position on the issue of whether abortion should be legalized. This will guide the rest of your should abortion be legal or illegal essay and ensure that you are making a clear and compelling argument.

Use Credible Sources

When making your argument, it is important to use credible sources to support your claims. This may include academic journals, news articles, and other reputable sources of information.

Address Counterarguments

When making your argument, it is important to consider counterarguments and address them in your should abortion be legal essay. This will help strengthen your argument and demonstrate that you have considered multiple perspectives on the issue.

Use Clear and Concise Language

To effectively communicate your argument, it is essential to use clear and concise language. Avoid using overly technical language or jargon that may be difficult for readers to understand.

Use Evidence to Support Your Claims

Whenever possible, use evidence to support your claims. This may include statistics, studies, or personal stories that help illustrate the impact of legalizing abortion.

Conclude with a Strong Statement

Your conclusion should summarize your argument and leave readers with a strong statement that reinforces your position on the issue. This may include a call to action or a final thought that highlights the importance of legalizing abortion.

When writing opinion essays such as “why abortion should be legalized”, all the above tips can help you a lot. By empowering women with the right to make decisions about their own bodies and promoting access to safe and legal abortion, we can create a more inclusive and just society for all.

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Review of David Boonin, Beyond Roe: Why Abortion Should be Legal Even if the Fetus is a Person (Oxford University Press, 2019)

• Book Review
• Open access
• Published: 14 May 2021
• Volume 15 , pages 535–544, ( 2021 )

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Should abortion be legal even if the human fetus is a person? “Person” is intended here in its philosophical sense, to mean a being possessed of equal moral standing and rights as you and me. Most importantly of all, a person is a being with the fundamental right to life. The question about what follows morally and legally when fetal personhood is presumed has occupied a sizeable part of abortion ethics for some time. Far and away the most influential reflection on that question was the philosopher Judith Thomson’s “violinist analogy argument” in defence of abortion rights. Footnote 1 There, Thomson argued that abortion is morally defensible even if it is true that the fetus is a rights-holding person. Her argument rested on a view of pregnancy as supererogatory, and, conversely, of abortion as the mere refusal to be a good Samaritan. Though it might be laudable to do so, no one is morally required to surrender her very body in order to keep another person alive for nine months, Thomson claimed. Ergo, even if fetuses are persons, women are not morally obliged to provide them with life-saving bodily aid by gestating them. They are morally permitted to refuse that bodily aid by means of abortion. They are permitted to choose not to be good Samaritans.

Thomson memorably posed this argument through an analogy in which you are kidnapped by a musical society and hooked up to an unconscious violinist whose kidneys are failing, and who needs to be plugged into your own kidneys for the next nine months in order to survive. After that, he will detach, and you can go your separate ways. As fate would have it, you are the only kidney match. Certainly, Thomson argued, it would be admirable for you to undertake this burden, but surely you do not have to. You are morally permitted to reach around your back and unplug yourself, knowing that the violinist will sadly die, she claimed, confident that the reader will share this judgement. Well, just so with pregnancy and abortion. I think of this as the “good Samaritan view” of abortion rights, since the kernel of the argument is that abortion is no more than the refusal to be a good Samaritan. The violinist analogy is aimed at making the moral permissibility of abortion difficult to refute, including if we presuppose fetal personhood. The violinist is certainly a person, and yet you may unplug. If one is permitted to unplug the violinist, knowing he will die, why is one not permitted to expel a fetus, knowing the same?

In Beyond Roe: Why Abortion Should be Legal Even if the Fetus is a Person (Oxford University Press, 2019), David Boonin presents an engaging restatement of this way of thinking about abortion, citing Thomson as its intellectual progenitor, and defending it against the more prominent objections to stack up in the years since Thomson’s watershed intervention. In concert with Thomson, Boonin’s main proposition is as the title makes plain: that the right to abortion is defensible in moral and, even more assuredly, in legal terms, even if the fetus is a person with the right to life. He writes in the preface:

My main goal in this book is to take the argument that Thomson pioneered in the moral context, adapt it to the legal context, and use it to argue that abortion should be legal even if the fetus is a person. (x)

Like Thomson, Boonin argues that abortion amounts to the refusal to provide an embryo or a fetus with life-sustaining aid that a pregnant person cannot be morally required to provide. Certainly, he claims, no one ought to be forced by law to provide that bodily support. Emulating Thomson’s strategy, Boonin anchors his argument on an extended analogue. Unlike Thomson’s hypothetical violinist, though, Boonin’s is a real life case, which even found its way before a court. The case concerned an American man, Robert McFall, and his cousin, David Shimp. McFall had been diagnosed with aplastic anaemia, a life-threatening condition which threatened to soon take his life if he did not receive a bone marrow transplant. Initial tests indicated that McFall’s cousin, David Shimp, was a potential match. But Shimp did not wish to donate his bone marrow in order to save McFall. In light of the refusal, McFall brought a legal action, effectively asking the court to force Shimp to donate. In McFall v. Shimp , that action was summarily dismissed by the presiding Judge Flaherty. Footnote 2 ‘Flaherty’s basic point was simple:’, writes Boonin, ‘it would be wrong for the state to force Shimp to give McFall the bone marrow he needed. I’ll bet you agree with Judge Flaherty about this.’ (4).

In the first part of the book, Boonin draws out the main lesson of McFall v. Shimp , and seeks to show that if the reader agrees with that principle and the judge’s decision in that case, she must, perforce, agree that abortion should remain legal even if the fetus is a person. The main lesson of the case, Boonin takes it, is that the right to life does not entail the right to the use of another person’s body to stay alive. McFall definitely possessed the right to life. Still, he could not demand the use of Shimp’s bone marrow in order to save his life. And certainly, we should think, the state ought not to force Shimp to make that bodily sacrifice. ‘[B]eing a person doesn’t give you the right to use another person’s bone marrow even if you need to use it.’, Boonin writes (8).

Boonin sets out to establish that the same analysis applies to abortion on the assumption that the fetus is a person. If you believe that Shimp ought not to be forced to donate his bone marrow to McFall, then you should hold that the state ought not to force women to provide life-sustaining bodily aid to fetuses through gestation. But this it would do if it prohibited abortion, it is argued. He traces a number of different abortion scenarios, inviting the reader to presume in each that the fetus, like McFall, really is a person (amusingly, the fetuses are even given names, such as “Al” and “Bob” to help lock that presumption in place). Despite their various features, Boonin claims that all of these abortions are subsumed by the basic principle of McFall v. Shimp .

The second part of the book tackles a cache of objections to this initial argument, which largely proceed by asserting morally relevant disanalogies that may well hold between McFall v. Shimp and the abortion situation. Perhaps a pregnant woman is responsible for the situation that has now arisen, or could be said to have consensually risked pregnancy (both non-issues in McFall v. Shimp ). Perhaps the precise way in which abortion causes fetal death raises distinct moral issues. Does it change things that a woman stands in a relation of biological parenthood to her fetus? And so on.

In the final part, Boonin argues that if you agree with the decision in McFall v. Shimp , you ought to hold not only that abortion prohibitions are illicit, but also that numerous restrictions on abortion access are indefensible as a matter of justice. Among the restrictions he addresses directly are mandatory counselling, waiting periods, and ultrasound requirements, all of which are in operation in some American states.

The importance of the entire ‘good Samaritan’ strain of abortion defence is patently apparent. On a typical reckoning, the philosophical personhood of the fetus is deeply inimical to abortion rights. This is because, while unwanted pregnancy no doubt imposes severe hardships on women, it is hard to make the case that homicide is a proportionate method of avoiding them in almost all cases. In morality and law, homicide is justified only in the direst of circumstances. Considering this, it would appear that everything in the abortion rights battle depends on the correct answer to the personhood question. Needless to say, though, the conditions for philosophical personhood are deeply (maybe even essentially) contested. If the permissibility of abortion can, somehow, be maintained in the face of prenatal personhood, we can spare ourselves grappling with the thorny question about the moral status of the fetus—and, indeed, about what confers personhood universally—on the path to defending abortion rights.

The good Samaritan argument has both moral and legal analogues. While Thomson was primarily concerned with establishing the moral permissibility of abortion, Boonin more emphatically sets out to make the case for the legal right to abort a fetus-person. Footnote 3 On both scores, by grounding his version of the good Samaritan argument on a real life case, Boonin’s account has the relative virtue of being slightly closer to earth than Thomson’s, where we might worry that the sheer bizarreness of the scenario makes it difficult to formulate reliable judgements. McFall v. Shimp actually happened, and Boonin is surely correct to suppose that its decision will be endorsed by most people. Relying on readers’ judgements about that case is hence a solid departure point for further argument.

Admittedly, this advantage is diluted each time the original case is amended to something more outlandish so as to account for a possible morally relevant disanalogy with abortion. I am less sure, for instance, what the correct legal and moral response is where Shimp begins the scenario connected up to a ‘bone marrow transferring machine’ which is slowly extracting his bone marrow and transferring it to McFall, or where McFall turns out to be Shimp’s offspring, than I am about the original case. This “changing-the-case” strategy—a staple of contemporary moral philosophy—is the argumentative method of choice for most of the book, and McFall v. Shimp undergoes multiple emendations to press the main thesis in the face of objections. For example, perhaps we are unsure that McFall v. Shimp applies equally to abortions in which the woman was in some way responsible in becoming pregnant, say, by engaging in consensual sex and forgoing contraceptive use. In that case, we should simply ask ourselves how things ought to stand in an amended case where Shimp is somehow responsible for the situation in which he is now connected up to McFall and already donating his bone marrow, the cessation of which will spell McFall’s death—maybe he went tearing around McFall’s hospital room in full knowledge that he might trip on the slippery floor and wind up stuck on the ‘bone marrow transferring machine’ (24). If we remain convinced that the law ought not to force Shimp to remain hooked up, his negligence notwithstanding, the disanalogy doesn’t bite.

The doubt always lingers, though, that not every morally salient feature of the pregnancy situation can be adequately captured by a McFall v. Shimp Redux. And none, surely, can capture the combined force of everything that seems to matter in this domain. How would it change our moral evaluations of McFall and Shimp’s case if people donating bone marrow to their cousins had been the method of bringing new humans into existence since time immemorial; if our private, social, and working lives were structured against the backdrop of this possibility, and even sat in expectation of it; if the act of donation had come to be considered (rightly or wrongly) as a pivotal aspect of the human experience, but one that also imposed disproportionate social and physical burdens upon the donors, an already disadvantaged class of citizens? It is unlikely that any tweaking of McFall v. Shimp can replicate all the realities which inform our moral response to the abortion problem, and, indeed, against the backdrop of which those moral sensibilities are developed and finessed to begin with. Perhaps the misgivings some have about the methodology which characterises Beyond Roe are not entirely without merit, then.

This critical perspective having been duly noted, Boonin’s constant appeal to intuitions about cases, changing the case in response to objections, and confidently escorting the reader from one conclusion to the next (“if the McFall v. Shimp principle applies to X abortion scenario, then it should also apply to Y abortion scenario”), makes for a readable and compelling discussion, well suited to the aims of the book and its intended wide readership. The arguments are elegantly simple and straightforward; the writing has a crisp, conversational style, and the book moves along at a good pace, with each concise chapter devoted to progressing the argument in one small step, or refuting an objection with little ceremony. Boonin clearly takes pains to make the book suitable for those unfamiliar with abortion ethics literature and the philosophically novice. As he states in the preface, the aim is for the book to be ‘informal and accessible’ (xii), and in this he succeeds, with a minor reservation about some parts in which the appeal to yet more “cases” feels like more of a hindrance than a help. The book does not presume any familiarity with either law or philosophy and is pleasingly free of disciplinary jargon.

Much of the book is in fact a précis of arguments more elaborately made by Boonin in his 2002 book A Defense of Abortion , repackaged and simplified for the general reader. Footnote 4 In the earlier book, Boonin devotes an impressive chapter of over 200 pages to the systematic defence of Thomson’s version of the good Samaritan argument. The chapter contains the most rigorous and robust defence of the view that abortion is morally permissible regardless of fetal personhood of which I am aware (my own copy is dog-eared and underlined throughout). Beyond Roe distils the essence of these arguments, and of the good Samaritan thesis, in a way that will be particularly useful for students or for those encountering philosophical abortion arguments for the first time. But it also has plenty to offer the more inducted, reminding us of the various pulse points in this corner of the discussion, and of where the exchanges will likely bottom out. The flip side of the book’s punchy style is that there is little breathing space to expand arguments and attend to nuances. This can hardly be a complaint in the context, and it is only once or twice that the discussion suffers for it, by my lights. One possible example of where it does is around the discussions of sex-selective and fetal abnormality (or “disability”) abortions—both tricky cases for one or other side of the abortion divide—where no reference is made to some salient moral and legal considerations beyond the so-called fetal-maternal conflict.

The timing of Beyond Roe , at what appears to be a critical juncture for the abortion right in the United States, cannot be a coincidence. After recent personnel shifts on the US Supreme Court, Roe v. Wade , along with its determination against fetal personhood, is seemingly more precarious now than it has been in decades. The landmark decision in Roe v. Wade is familiar to most people as the case in which women’s constitutional right to terminate their pregnancies was first recognised, Footnote 5 Fewer people are aware that Justice Blackmun premised the court’s majority judgment on the denial of the fetus’s personhood under the Constitution. Women’s right to privacy did afford them the qualified right to abortion, it was held, but could not have done if the fetus were a recognised person under the law, and entitled to the constitutional protections that triggered. Had the Constitution recognised prenatal persons, the abortion right would fail, Justice Blackmun reasoned, ‘for the fetus’s right to life would then be guaranteed specifically by the amendment’. Footnote 6

In so holding, Roe embraced the orthodox view of abortion ethics set out above: that the right to abortion is incompatible with the personhood of the fetus. As the antithesis to this view, the good Samaritan argument has increased legal and political relevance in any climate where the ascription of legal personhood to the fetus is a real possibility. Boonin articulates a basis for the abortion right that is impervious to a finding of fetal personhood. It is in this sense that his argument goes “beyond Roe”. By pre-empting a legal turn affirming the constitutional personhood of the fetus, and illustrating how the abortion right could be defended consistently with it, the book is a welcome example of what philosophical legal advocacy can look like.

Garnering the reader’s sympathy for the main principle about the limits of positive bodily duties (the ‘lesson’ of McFall v. Shimp ) is always going to be the easier part for the good Samaritan argument. To reiterate, the principle is that the right to life does not entail the right to use another person’s body in order to live. This is because the right to life does not ground a correlative duty on others to keep someone alive by such means, and no one should be forced to undertake burdens they are not morally required to bear. (This is not to deny that there are morally egregious refusals to save: Thomson herself admits that someone who refused to sustain the violinist for merely one hour, when that is all it would take to save him, would be ‘morally indecent’. Footnote 7 )

Few would probably object thus far. The harder sell is always to show that the principle applies to pregnancy and abortion the same way it applies to McFall v. Shimp , and that morally relevant disanalogies do not knock it out of the arena. Boonin documents some of the main objections along these lines and provides a good demonstration of how someone defending the good Samaritan view could defuse them, the persuasiveness of which it is for the reader to evaluate. A cluster of those objections raise the possibility that the positive obligations a woman might owe to her fetus do not match up with McFall v. Shimp . This is the tenor of the responsibility objection (pp. 69–83), which points out that pregnant women can be responsible for the fetus’s situation of need in a way that is not true of Shimp vis-à-vis McFall. And it is trite that greater responsibility grounds greater obligations.

But a more fundamental objection targets the very framing of the abortion issue in terms of whether woman has a positive duty to gestate a fetus. On the good Samaritan view, the ethical question is whether one person’s positive obligations of assistance extend to proffering the use of her body for someone else’s survival, the answer being that, certainly in abortion, they do not. Yet an obvious objection is that abortion is not a positive obligations problem to begin with, but rather a problem about when one is permitted to breach the negative duty not to kill. We may be satisfied that Shimp merely allowed McFall to die when he refused to donate his bone marrow. In that case, the immanent moral issue is only whether Shimp ought to have saved McFall or not. But it seems that when “Alice” aborts “Al”, she (or her doctors) is positively killing Al. If so, the good Samaritan analysis is in some trouble. In both law and morality, the circumstances in which we are permitted to kill outright are far stricter than those in which we are permitted to refuse to save. It doesn’t follow, then, from the fact that Shimp has no duty to rescue McFall that Alice is permitted to kill Al to spare herself similar (or, even, worse) burdens. This is the familiar “killing v letting die” objection to Thomson’s original defence of abortion.

As Boonin notes, it looks as though only some types of abortions, such as those which expel a pre-viable fetus from the uterus without attacking it directly, are readily analysable in terms of refusing to save, on a par with Shimp’s omission (109). Other abortion methods better resemble direct killing which, presuming fetal personhood, would make the issue one of homicide. Homicide may yet be justified, of course, but its road to justification is not easy.

Boonin’s general strategy against the killing v letting die objection, only really glimpsed at here, is to press the implications of special constraints on positive killing where they most rub. For example, most people, Boonin says, will likely think it matters not whether an abortion is carried out by dilation and curettage, a method that directly kills the fetus in the process of extraction, or instead by hysterotomy, where a pre-viable fetus is removed from the uterine environment it needs to survive, given that the result, fetal death, is the same. Added pressure can be applied using another amended version of McFall v. Shimp . Let us change the case again, Boonin suggests, to have it that Shimp is already unhappily hooked up to the bone-marrow transferring machine, only this time it is not enough to free Shimp to simply sever the connection; to free Shimp, a doctor must kill McFall outright, albeit painlessly in his sleep (114). If you think the doctor ought to be able to do this, Boonin argues, then you can have no objection to a mode of abortion that directly kills Al the fetus. More than this, though, you should have no objection to the direct killing of McFall in the amended case:

Since McFall has no right to the life support he’s receiving and would be dead if he weren’t receiving it, you may well think Shimp is entitled to withdraw that support even if doing so involves taking McFall’s life. Since McFall has no right to remain alive at Shimp’s expense after all, doing so would not make McFall any worse off than he has the right to be.’ (115–116)

But that cannot be a full and correct statement of a condition for permissible killing. It is not the case that one is permitted to kill just whenever the killing is done so as to liberate oneself from a burden one would not have been duty-bound to offer, or when the killing will not leave the victim any worse off than she has a right to be, vis-à-vis the killer. Let us assume I have no duty to save you from rough sleeping and death from exposure by handing you over the contents of my bank account. Footnote 8 Does that mean I am permitted to kill you so as to prevent you from commandeering those funds by force? Unlike Boonin, I am less sure we can read directly off a person’s rights to life-saving assistance the extent of her rights against being killed so as to spare someone that that assistance.

Anyone unimpressed by the idea of an intrinsic moral difference between killing and letting die will no doubt deny that Alice cannot abort Al by dilation and curettage if she can abort by hysterotomy. This may seem all the more the case when the outcome for the fetus is the same either way but where the latter “letting die” method is more physically costly to Alice. Footnote 9 Yet those who embrace strict deontological constraints on positive killing know that it will sometimes prove costly on other metrics of goodness. This line of reply only seems to beg the question against the killing/letting die distinction wholesale. We know that the difference is of moral consequence: my moral duty to save people from starvation through charitable donations is nothing like my moral duty not to poison those same people. If the distinction matters morally and intrinsically, why does it not matter here? That is the challenge.

If the morality and legality of abortion cannot, ultimately, fall to be treated as a positive obligations problem, we may find ourselves directed back to the more fundamental matter of fetal moral status. This brings me around, finally, to what motivates the good Samaritan thesis and the entire strain of personhood-bypassing abortion argument. ‘The traditional approach of arguing about fetal personhood doesn’t appear to be working too well’, Boonin writes toward the beginning of the book (6). By what standards, though? One could well say the same thing about the good Samaritan view, given how little favour it has found among those who really do avow prenatal personhood. Footnote 10 The personhood question is intractable insofar as it has not yielded universal agreement about the fetus. Is this different, in this respect, from any other core moral dispute that bears on our legal rights? (Consider: there is not yet universal agreement that the institution of property rights is anything other than state-sanctioned theft.) It is a virtue of the good Samaritan defence of abortion, Boonin says, that it is not susceptible to sorites-type anxieties about where the exact threshold of personhood lies, or about how we are to morally distinguish abortion from infanticide, although he acknowledges that personhood-denying defences of abortion do field answers to these quandaries. And indeed they do. Is it much harder to persuade someone of those answers than to persuade her that abortion is tantamount to the morally permissible refusal to proffer life-saving bodily aid?

Asking what follows about abortion rights if the fetus is indeed a person is without doubt a revealing and worthwhile exercise. Even so, our imaginations tend to buckle under the strain of that presumption at certain points—hence, perhaps, the need to assist by giving the fetuses names (“Al”, “Bob”, “Daniel”), and help animate them as persons. What moral duties do we owe to abstract “persons” that are nothing like persons as we ordinarily conceive of them: without their separateness, their embedment in social life, their transparent vulnerability and emotion? This is perhaps not a question our moral sensibilities have been honed to answer. To object that it chafes too much to speak of the fetuses “Al” and “Bob” invites the obvious retort that one has simply stopped playing the intellectual game. Still, finding the game unplayable on these terms can be telling in itself.

A minor theme of Beyond Roe is the explanatory power of the good Samaritan defence of abortion rights over personhood-denying accounts. Footnote 11 But the personhood-denying defence has explanatory heft of its own. I end by noting just one way in which this is so. Like Thomson, Boonin accepts that the defence of abortion he outlines in Beyond Roe is more narrowly what has been called a defence of extraction . Boonin does not here assert a specific right to kill a fetus-person, only the right to end gestational support knowing this will spell fetal death (47–48). This poses clear problems for post-viability abortions, at which point the fetus could alternatively be extracted alive, still ending the woman’s bodily support. If a woman can expel a fetus alive, the good Samaritan argument does not hold that she is entitled to insist on fetal death, it seems.

Boonin regards this problem as being of limited practical import given how few abortions occur past the point of fetal viability. But recent developments in artificial womb technology threaten to force the issue of whether it is abortion or extraction (or both) that is ethically and legally licit. Whilst still exploratory, these developments hint at new possibilities for early fetal, and even embryonic, survival outside of the uterine environment. Suppose that an unwanted ten-week embryo could be removed from a pregnant woman’s womb and artificially gestated though to maturity. Where does this leave the abortion right on the good Samaritan defence? If we think the woman still ought to be able to control her procreative destiny by intentionally ending the life of that embryo, it is not the good Samaritan argument which will tell us this is so. What this action amounts to in moral terms, and how it should be treated under the law, will surely then depend on the intrinsic moral status of that embryo. Is it a creature whose life we are permitted to end so as to secure the all-round wellbeing of a more developed human being, or is it not?

With possibilities such as ectogenesis on the horizon, the question about the moral status of the fetus cannot be easily batted aside (and it would be remiss not to mention here that Boonin has elsewhere advanced developed views about moral status before birth Footnote 12 ). Changing legal and bio-technological landscapes will likely continue to press on both core questions in abortion ethics: is the fetus a rights-holding person, and, if so, what is the normative relevance of that? What Boonin presents here is a perspicuous and engaging treatment of the second issue.

J. J. Thomson, ‘A Defense of Abortion’, Philosophy and Public Affairs 1:1 (Autumn 1971): 47–66.

McFall v. Shimp , 10 Pa. D. & C. 3d 90 (July 26, 1978).

Although, one might think the claim about legal permissibility is implied in Thomson’s version of the argument. It is passé to think that plenty of morally sub-optimal behaviour is not the law’s proper concern, and even less legitimate, we should therefore think, for the law to enforce positive assistance over and above what even morality requires us to do.

D. Boonin, A Defense of Abortion (Cambridge University Press, 2002).

Roe v. Wade 410 U.S. 113 (1973).

Thomson, ‘A Defense of Abortion’, 59.

I am by no means convinced that I would have no such duty.

Boonin discusses this issue at 117–119.

I have yet to come across someone who subscribes to prenatal personhood and yet regards abortion as morally and legally defensible in broadly good Samaritan terms.

For instance, he suggests, it explains why there is in fact no inconsistency in defending abortion rights while maintaining that fetuses can be adjudged victims of crimes, through, inter alia, ‘feticide’ laws. At a glance, feticide laws seem to ‘stand or fall together’ with the prohibition of abortion, all depending on one’s view of prenatal personhood. But the good Samaritan thesis explains why the abortion right could sit alongside feticide laws. The fact that Shimp should not be forced to let McFall use his bone marrow does not mean that McFall should not be treated as a victim if an armed robber comes along and kills him (55).

See: A Defense of Abortion (above).

Boonin, D (2002) A Defense of Abortion (Cambridge University Press)

Boonin, D (2019) Beyond Roe: Why Abortion Should be Legal Even if the Fetus is a Person (Oxford University Press)

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Greasley, K. Review of David Boonin, Beyond Roe: Why Abortion Should be Legal Even if the Fetus is a Person (Oxford University Press, 2019). Criminal Law, Philosophy 15 , 535–544 (2021). https://doi.org/10.1007/s11572-021-09580-x

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DOI : https://doi.org/10.1007/s11572-021-09580-x

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There Are More Than Two Sides to the Abortion Debate

Readers share their perspectives.

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Earlier this week I curated some nuanced commentary on abortion and solicited your thoughts on the same subject. What follows includes perspectives from several different sides of the debate. I hope each one informs your thinking, even if only about how some other people think.

We begin with a personal reflection.

Cheryl was 16 when New York State passed a statute legalizing abortion and 19 when Roe v. Wade was decided in 1973. At the time she was opposed to the change, because “it just felt wrong.” Less than a year later, her mother got pregnant and announced she was getting an abortion.

She recalled:

My parents were still married to each other, and we were financially stable. Nonetheless, my mother’s announcement immediately made me a supporter of the legal right to abortion. My mother never loved me. My father was physically abusive and both parents were emotionally and psychologically abusive on a virtually daily basis. My home life was hellish. When my mother told me about the intended abortion, my first thought was, “Thank God that they won’t be given another life to destroy.” I don’t deny that there are reasons to oppose abortion. As a feminist and a lawyer, I can now articulate several reasons for my support of legal abortion: a woman’s right to privacy and autonomy and to the equal protection of the laws are near the top of the list. (I agree with Ruth Bader Ginsburg that equal protection is a better legal rationale for the right to abortion than privacy.) But my emotional reaction from 1971 still resonates with me. Most people who comment on the issue, on both sides, do not understand what it is to go through childhood unloved. It is horrific beyond my powers of description. To me, there is nothing more immoral than forcing that kind of life on any child. Anti-abortion activists often like to ask supporters of abortion rights: “Well, what if your mother had decided to abort you?” All I can say is that I have spent a great portion of my life wishing that my mother had done exactly that.

Steven had related thoughts:

I have respect for the idea that there should be some restrictions on abortion. But the most fundamental, and I believe flawed, unstated assumptions of the anti-choice are that A) they are acting on behalf of the fetus, and more importantly B) they know what the fetus would want. I would rather not have been born than to have been born to a mother who did not want me. All children should be wanted children—for the sake of all concerned. You can say that different fetuses would “want” different things—though it’s hard to say a clump of cells “wants” anything. How would we know? The argument lands, as it does generally, with the question of who should be making that decision. Who best speaks in the fetus’s interests? Who is better positioned morally or practically than the expectant mother?

Geoff self-describes as “pro-life” and guilty of some hypocrisy. He writes:

I’m pro-life because I have a hard time with the dehumanization that comes with the extremes of abortion on demand … Should it be okay to get an abortion when you find your child has Down syndrome? What of another abnormality? Or just that you didn’t want a girl? Any argument that these are legitimate reasons is disturbing. But so many of the pro-life just don’t seem to care about life unless it’s a fetus they can force a woman to carry. The hypocrisy is real. While you can argue that someone on death row made a choice that got them to that point, whereas a fetus had no say, I find it still hard to swallow that you can claim one life must be protected and the other must be taken. Life should be life. At least in the Catholic Church this is more consistent. I myself am guilty of a degree of hypocrisy. My wife and I used IVF to have our twins. There were other embryos created and not inserted. They were eventually destroyed. So did I support killing a life? Maybe? I didn’t want to donate them for someone else to give birth to—it felt wrong to think my twins may have brothers or sisters in the world they would never know about. Yet does that mean I was more willing to kill my embryos than to have them adopted? Sure seems like it. So I made a morality deal with myself and moved the goal post—the embryos were not yet in a womb and were so early in development that they couldn’t be considered fully human life. They were still potential life.

Colleen, a mother of three, describes why she ended her fourth pregnancy:

I was young when I first engaged this debate. Raised Catholic, anti-choice, and so committed to my position that I broke my parents’ hearts by giving birth during my junior year of college. At that time, my sense of my own rights in the matter was almost irrelevant. I was enslaved by my body. One husband and two babies later I heard a remarkable Jesuit theologian (I wish I could remember his name) speak on the matter and he, a Catholic priest, framed it most directly. We prioritize one life over another all the time. Most obviously, we justify the taking of life in war with all kinds of arguments that often turn out to be untrue. We also do so as we decide who merits access to health care or income support or other life-sustaining things. So the question of abortion then boils down to: Who gets to decide? Who gets to decide that the life of a human in gestation is actually more valuable than the life of the woman who serves as host—or vice versa? Who gets to decide when the load a woman is being asked to carry is more than she can bear? The state? Looking back over history, he argued that he certainly had more faith in the person most involved to make the best decision than in any formalized structure—church or state—created by men. Every form of birth control available failed me at one point or another, so when yet a 4th pregnancy threatened to interrupt the education I had finally been able to resume, I said “Enough.” And as I cried and struggled to come to that position, the question that haunted me was “Doesn’t MY life count?” And I decided it did.

Florence articulates what it would take to make her anti-abortion:

What people seem to miss is that depriving a woman of bodily autonomy is slavery. A person who does not control his/her own body is—what? A slave. At its simplest, this is the issue. I will be anti-abortion when men and women are equal in all facets of life—wages, chores, child-rearing responsibilities, registering for the draft, to name a few obvious ones. When there is birth control that is effective, where women do not bear most of the responsibility. We need to raise boys who are respectful to girls, who do not think that they are entitled to coerce a girl into having sex that she doesn’t really want or is unprepared for. We need for sex education to be provided in schools so young couples know what they are getting into when they have sex. Especially the repercussions of pregnancy. We need to raise girls who are confident and secure, who don’t believe they need a male to “complete” them. Who have enough agency to say “no” and to know why. We have to make abortion unnecessary … We have so far to go. If abortion is ruled illegal, or otherwise curtailed, we will never know if the solutions to women’s second-class status will work. We will be set back to the 50s or worse. I don’t want to go back. Women have fought from the beginning of time to own their bodies and their lives. To deprive us of all of the amazing strides forward will affect all future generations.

Similarly, Ben agrees that in our current environment, abortion is often the only way women can retain equal citizenship and participation in society, but also agrees with pro-lifers who critique the status quo, writing that he doesn’t want a world where a daughter’s equality depends on her right “to perform an act of violence on their potential descendents.” Here’s how he resolves his conflictedness:

Conservatives arguing for a more family-centered society, in which abortion is unnecessary to protect the equal rights of women, are like liberals who argue for defunding the police and relying on addiction, counselling, and other services, in that they argue for removing what offends them without clear, credible plans to replace the functions it serves. I sincerely hope we can move towards a world in which armed police are less necessary. But before we can remove the guardrails of the police, we need to make the rest of the changes so that the world works without them. Once liberal cities that have shown interest in defunding the police can prove that they can fund alternatives, and that those alternatives work, then I will throw my support behind defunding the police. Similarly, once conservative politicians demonstrate a credible commitment to an alternative vision of society in which women are supported, families are not taken for granted, and careers and short-term productivity are not the golden calves they are today, I will be willing to support further restrictions on abortion. But until I trust that they are interested in solving the underlying problem (not merely eliminating an aspect they find offensive), I will defend abortion, as terrible as it is, within reasonable legal limits.

Two readers objected to foregrounding gender equality. One emailed anonymously, writing in part:

A fetus either is or isn’t a person. The reason I’m pro-life is that I’ve never heard a coherent defense of the proposition that a fetus is not a person, and I’m not sure one can be made. I’ve read plenty of progressive commentary, and when it bothers to make an argument for abortion “rights” at all, it talks about “the importance of women’s healthcare” or something as if that were the issue.

Christopher expanded on that last argument:

Of the many competing ethical concerns, the one that trumps them all is the status of the fetus. It is the only organism that gets destroyed by the procedure. Whether that is permissible trumps all other concerns. Otherwise important ethical claims related to a woman’s bodily autonomy, less relevant social disparities caused by the differences in men’s and women’s reproductive functions, and even less relevant differences in partisan commitments to welfare that would make abortion less appealing––all of that is secondary. The relentless strategy by the pro-choice to sidestep this question and pretend that a woman’s right to bodily autonomy is the primary ethical concern is, to me, somewhere between shibboleth and mass delusion. We should spend more time, even if it’s unproductive, arguing about the status of the fetus, because that is the question, and we should spend less time indulging this assault-on-women’s-rights narrative pushed by the Left.

Jean is critical of the pro-life movement:

Long-acting reversible contraceptives, robust, science-based sex education for teens, and a stronger social safety net would all go a remarkable way toward decreasing the number of abortions sought. Yet all the emphasis seems to be on simply making abortion illegal. For many, overturning Roe v. Wade is not about reducing abortions so much as signalling that abortion is wrong. If so-called pro-lifers were as concerned about abortion as they seem to be, they would spend more time, effort, and money supporting efforts to reduce the need for abortion—not simply trying to make it illegal without addressing why women seek it out. Imagine, in other words, a world where women hardly needed to rely on abortion for their well-being and ability to thrive. Imagine a world where almost any woman who got pregnant had planned to do so, or was capable of caring for that child. What is the anti-abortion movement doing to promote that world?

Destiny has one relevant answer. She writes:

I run a pro-life feminist group and we often say that our goal is not to make abortion illegal, but rather unnecessary and unthinkable by supporting women and humanizing the unborn child so well.

Robert suggests a different focus:

Any well-reasoned discussion of abortion policy must include contraception because abortion is about unwanted children brought on by poorly reasoned choices about sex. Such choices will always be more emotional than rational. Leaving out contraception makes it an unrealistic, airy discussion of moral philosophy. In particular, we need to consider government-funded programs of long-acting reversible contraception which enable reasoned choices outside the emotional circumstances of having sexual intercourse.

Last but not least, if anyone can unite the pro-life and pro-choice movements, it’s Errol, whose thoughts would rankle majorities in both factions as well as a majority of Americans. He writes:

The decision to keep the child should not be left up solely to the woman. Yes, it is her body that the child grows in, however once that child is birthed it is now two people’s responsibility. That’s entirely unfair to the father when he desired the abortion but the mother couldn’t find it in her heart to do it. If a woman wants to abort and the man wants to keep it, she should abort. However I feel the same way if a man wants to abort. The next 18+ years of your life are on the line. I view that as a trade-off that warrants the male’s input. Abortion is a conversation that needs to be had by two people, because those two will be directly tied to the result for a majority of their life. No one else should be involved with that decision, but it should not be solely hers, either.

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Editorial: Should a right to an abortion be a federal law? Of course it should

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In the 46 years since the Supreme Court’s decision in Roe vs. Wade affirmed a woman’s constitutional right to an abortion, opponents of the ruling have steadfastly refused to accept it, fighting a never-ending battle to chip away at its protections or to overturn it altogether.

State legislatures, defiantly and recklessly, have passed hundreds of bills in the last decade alone to limit the access to abortion that the Supreme Court has granted and reaffirmed over the course of three landmark decisions on abortion beginning with Roe in 1973. The latest was the high court’s 2016 decision overturning a Texas law that set unnecessary and unduly burdensome requirements for abortion clinics and for doctors working in them.

But that didn’t stop the state of Louisiana from passing an essentially identical law to the invalidated Texas one, clearly hoping that the inevitable challenge would reach the Supreme Court — and that the court would change its mind. The court has agreed to hear the case.

In fact, numerous legislatures in conservative states have passed restrictions on abortion that are patently unconstitutional under Roe vs. Wade, hoping to test the Supreme Court’s new conservative majority to see if it will permit the restrictions or, even better from their point of view, do away with Roe entirely.

There’s no immediate reason to believe the court is on the verge of reversing itself, but if it did, that would constitute an extraordinary step backward. Given the possibility, it is not unreasonable to be thinking about whether there are other ways to shore up abortion protections.

One suggestion is that Congress should pass a federal law guaranteeing the right to an abortion as a fallback in case Roe vs. Wade gets overturned.

The idea of “codifying” Roe into law received renewed attention when it was mentioned by several candidates at the last Democratic presidential debate. In fact, nearly all the candidates have expressed support for putting into a federal law what Roe guarantees — that a woman has a right to an abortion up to the time when the fetus becomes viable. That way, if the court backed away from the constitutional protections guaranteed by Roe vs. Wade, at least there would still be a national law protecting the right to an abortion.

Of course, if such a law is to be effective, it should do more than guarantee women the basic right to an abortion. It should explicitly state that access is part of the right to abortion and that states cannot restrict that access unduly.

In a separate proposal, Sen. Kamala Harris (D-Calif.) has suggested giving the Justice Department the authority to preapprove any abortion law proposed by a state — if that state had in the previous 25 years enacted abortion restrictions deemed unconstitutional by the courts. That idea is modeled on the “preclearance” process in the 1965 Voting Rights Act.

A preclearance rule would presumably stop unduly restrictive state abortion laws before they ever become law — so that defenders of abortion rights don’t have to go through the costly and time-consuming route of filing legal challenges to such laws, waiting for courts to hear their cases and appealing if necessary to higher courts.

But neither a preclearance rule — which would require a congressional law approving it — nor a codification of Roe vs. Wade would be guaranteed to pass. Both would have an uphill hill climb into law even if a Democratic president were to be elected next November. If the Senate remains Republican, the chances of either bill being approved would be low. It’s heartening that polls indicate that 77% of Americans support legal abortion — including even majorities of moderate and liberal Republicans and of Republican men . But it’s not clear how much weight that carries with conservative senators.

A bill has already been introduced that codifies Roe. The Women’s Health Protection Act would guarantee a right to abortion and forbid the onerous restrictions placed on providers and patients by various state bills. That’s great. It has more than 200 supporters in the House and 42 in the Senate. But without more support, it will go nowhere.

Even if these laws were passed, they would most likely be challenged in court.

No federal law would be a magic bullet. Nor would a law be as strong a protection of abortion rights as Roe vs. Wade has been. But that doesn’t mean advocates and elected officials shouldn’t fight for one as a fallback.

Right now, state laws are so restrictive that six states are down to only one abortion provider. Other states have sought to ban nearly all abortions. The battle to undermine Roe vs. Wade continues.

We should all hope that the Supreme Court stands by its five decades of precedent recognizing women’s rights to make decisions about their own bodies and their own futures. But as long as there’s worry that the Supreme Court might not give abortion rights its full-throated support, it’s worth pursuing a national law as well.

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How Abortion Views Are Different

With the Supreme Court set to hear a major abortion case, we look at the state of public opinion.

By David Leonhardt

For nearly 50 years, public opinion has had only a limited effect on abortion policy. The Roe v. Wade decision, which the Supreme Court issued in 1973, established a constitutional right to abortion in many situations and struck down restrictions in dozens of states.

But now that the court has agreed to hear a case that could lead to the overturning of Roe , voters and legislators may soon again be determining abortion laws, state by state. This morning’s newsletter offers a guide to public opinion on the subject.

Americans’ views on abortion are sufficiently complex that both sides in the debate are able to point to survey data that suggests majority opinion is on their side — and then to argue that the data friendly to their own side is the “right” data. These competing claims can be confusing. But when you dig into the data, you discover there are some clear patterns and objective truths.

Here are five.

1. A pro-Roe majority …

Polls consistently show that a majority of Americans — 60 percent to 70 percent, in recent polls by both Gallup and Pew — say they do not want the Supreme Court to overturn Roe. Similarly, close to 60 percent of Americans say they favor abortion access in either all or most circumstances, according to Pew.

These are the numbers that abortion rights advocates often emphasize.

2. … and a pro-restriction majority

The most confounding aspect of public opinion is a contradiction between Americans’ views on Roe itself and their views on specific abortion policies: Even as most people say they support the ruling, most also say they favor restrictions that Roe does not permit .

Roe, for example, allows only limited restrictions on abortion during the second trimester, mostly involving a mother’s health. But less than 30 percent of Americans say that abortion should “generally be legal” in the second trimester, according to Gallup. Many people also oppose abortion in specific circumstances — because a fetus has Down syndrome, for example — even during the first trimester.

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A World Without Legal Abortion: How Activists Envision A 'Post-Roe' Nation

Sarah McCammon

Anti-abortion-rights activists participate in the March for Life rally near the Supreme Court in Washington, D.C., on Jan. 24. Susan Walsh/AP hide caption

Anti-abortion-rights activists participate in the March for Life rally near the Supreme Court in Washington, D.C., on Jan. 24.

Judge Amy Coney Barrett's Supreme Court confirmation could open the door to a world that many anti-abortion-rights activists have been envisioning for decades.

A Look At Amy Coney Barrett's Record On Abortion Rights

"I hope and pray that we will be in a world post- Roe v. Wade ," said Carrie Murray Nellis, 41, an adoption attorney based in Georgia.

Murray Nellis is the founder of Abiding Love Adoptions, which operates in Georgia, Florida and Alabama. She hopes Barrett's confirmation will lead to the overturning of the 1973 Supreme Court decision that legalized abortion nationwide, which would thereby allow states to further restrict or ban the procedure.

With Roe v. Wade On The Line, Some States Take Steps To Protect Abortion Rights

Americans' Support For Abortion Rights Wanes As Pregnancy Progresses

Preparing for a post- Roe s ociety

Murray Nellis believes organizations like hers, which works primarily with birth mothers who are choosing adoption for their babies, need to be ready to help more women facing unplanned pregnancies.

"We as a pro-life community have got to get ready and get our ducks in a row," she said. "Because this could likely be happening, and I don't think we're ready."

Heather Lawless, 39, is co-founder of the Reliance Center in Idaho, which counsels women against abortion and provides services for new and expectant mothers. Stellar Styles Photography, Lewiston, Idaho hide caption

Heather Lawless, 39, is co-founder of the Reliance Center in Idaho, which counsels women against abortion and provides services for new and expectant mothers.

Persuasion and the law

A majority of Americans favor some restrictions on abortion but support Roe v. Wade , according to national polls. But activists dedicated to the goal of ending abortion in the U.S. have been organizing for decades at every level of government. They often say their goal is to make abortion both " illegal and unthinkable ."

"There's always a reason why a woman is choosing abortion," said Heather Lawless, co-founder of the Reliance Center in Idaho, which counsels women against abortion and offers free pregnancy tests and screenings for sexually transmitted infections. "And I believe that if we work together, we can provide them with the resources and the tools that they need to not make that choice."

Lawless said that this can mean helping a pregnant woman find housing or get treatment for addiction. But ultimately, she said, abortion should not be a choice.

"I don't think abortion should be legal, period. Because abortion at any stage is willfully taking a human life, and I don't think that should be legal — at all," Lawless said.

That includes, Lawless said, pregnancies resulting from rape or incest.

Questions of enforcement

Banning abortion would mean civil or criminal penalties for those who are convicted of violating those laws. In the post- Roe world Lawless envisions, doctors could be prosecuted for providing the procedure, though Lawless said she would not support penalties for pregnant patients.

Murray Nellis, the adoption attorney from Georgia, said she supports early-abortion bans like one passed in 2019 in her state, which critics said was less than clear about how it would be enforced and against whom. That law, as well as several other so-called "heartbeat laws" in other states, has been blocked in federal court. But advocates hope the Supreme Court might use such a law as an opportunity to reconsider Roe and related precedent.

Murray Nellis said she would not want to see patients punished if abortion were banned.

"I just think that that is cruel," she said. "I just think the responsibility and liability should be at the hands of the individual she [would be] literally paying to do something illegal."

That's the position of many of the major national anti-abortion-rights activist groups. But it's not a universal one.

Catherine Davis is the founder of the Restoration Project, a group based in Georgia that promotes an anti-abortion message primarily among African American pastors. She hopes to see abortion banned nationwide. Davis said the focus of prosecution should be on doctors, though she wouldn't rule out one day punishing women who induce their own abortions.

Catherine Davis is founder of the Restoration Project, a group in Georgia that opposes abortion rights. Charles Joseph/Courtesy Catherine Davis hide caption

"If she decides to self-abort herself, then she's subjected to the same penalty as the doctor," Davis said.

Davis said she believes abortion should be treated exactly like murder — up to and including capital punishment.

"If a doctor makes the decision in a jurisdiction that he or she knows the penalty for taking the life of another human being is the death penalty, and they decide to do it anyway, then they've subjected themselves to the death penalty," Davis said.

Punishing women?

Mary Ziegler, the Stearns Weaver Miller professor at Florida State University College of Law, said that while many groups opposed to abortion rights have historically said they wouldn't support laws that punish pregnant women who get abortions, the growing availability of medication to self-induce abortion at home could complicate that position.

"I don't see how you do that without punishing women, because we're going to be in an environment where women can end pregnancies without a third-party being present," she said.

Leslie Reagan is a history professor at the University of Illinois and author of the book When Abortion Was a Crime. If Roe falls, Reagan said, women will still seek out illegal and sometimes unsafe abortions, as they did before Roe .

Reagan said activists who've been organizing with that thought in mind for decades are likely to insist on enforcing state abortion bans.

"We have a movement — a religiously based movement that's led by the churches and can organize out of the church — that wants these laws changed and will want these laws enforced," Reagan said.

In written responses to Senate Judiciary Committee members, Judge Amy Coney Barrett declines to say, if Roe is overturned, whether states could: -ban IVF -make abortion, use of certain contraceptives a felony -make abortion a crime punishable by death https://t.co/WsAIacjquC pic.twitter.com/gaTJmKjxTB — Sarah McCammon📻 (@sarahmccammon) October 22, 2020

It's impossible to know how any justice might rule in a given case. But in a written exchange with Senate Judiciary Committee members, Barrett was asked if states could make getting an abortion a felony or a capital crime punishable by death.

Barrett responded that as a judge and Supreme Court nominee, "It would not be appropriate for me to offer an opinion on abstract legal issues or hypotheticals."

With Abortion Restrictions On The Rise, Some Women Induce Their Own

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THE PRINCETON LEGAL JOURNAL

Princeton Legal Journal > The Forum

4 Prin.L.J.F. 12

The First Amendment and the Abortion Rights Debate

Sofia Cipriano

Spring 2024

Following Dobbs v. Jackson ’s (2022) reversal of Roe v. Wade (1973) — and the subsequent revocation of federal abortion protection — activists and scholars have begun to reconsider how to best ground abortion rights in the Constitution. In the past year, numerous Jewish rights groups have attempted to overturn state abortion bans by arguing that abortion rights are protected by various state constitutions’ free exercise clauses — and, by extension, the First Amendment of the U.S. Constitution. While reframing the abortion rights debate as a question of religious freedom is undoubtedly strategic, the Free Exercise Clause is not the only place to locate abortion rights: the Establishment Clause also warrants further investigation. 

Roe anchored abortion rights in the right to privacy — an unenumerated right with a long history of legal recognition. In various cases spanning the past two centuries, t he Supreme Court located the right to privacy in the First, Fourth, Fifth, Ninth, and Fourteenth Amendments . Roe classified abortion as a fundamental right protected by strict scrutiny, meaning that states could only regulate abortion in the face of a “compelling government interest” and must narrowly tailor legislation to that end. As such, Roe ’s trimester framework prevented states from placing burdens on abortion access in the first few months of pregnancy. After the fetus crosses the viability line — the point at which the fetus can survive outside the womb  — states could pass laws regulating abortion, as the Court found that   “the potentiality of human life”  constitutes a “compelling” interest. Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) later replaced strict scrutiny with the weaker “undue burden” standard, giving states greater leeway to restrict abortion access. Dobbs v. Jackson overturned both Roe and Casey , leaving abortion regulations up to individual states. 

While Roe constituted an essential step forward in terms of abortion rights, weaknesses in its argumentation made it more susceptible to attacks by skeptics of substantive due process. Roe argues that the unenumerated right to abortion is implied by the unenumerated right to privacy — a chain of logic which twice removes abortion rights from the Constitution’s language. Moreover, Roe’s trimester framework was unclear and flawed from the beginning, lacking substantial scientific rationale. As medicine becomes more and more advanced, the arbitrariness of the viability line has grown increasingly apparent.  

As abortion rights supporters have looked for alternative constitutional justifications for abortion rights, the First Amendment has become increasingly more visible. Certain religious groups — particularly Jewish groups — have argued that they have a right to abortion care. In Generation to Generation Inc v. Florida , a religious rights group argued that Florida’s abortion ban (HB 5) constituted a violation of the Florida State Constitution: “In Jewish law, abortion is required if necessary to protect the health, mental or physical well-being of the woman, or for many other reasons not permitted under the Act. As such, the Act prohibits Jewish women from practicing their faith free of government intrusion and thus violates their privacy rights and religious freedom.” Similar cases have arisen in Indiana and Texas. Absent constitutional protection of abortion rights, the Christian religious majorities in many states may unjustly impose their moral and ethical code on other groups, implying an unconstitutional religious hierarchy. 

Cases like Generation to Generation Inc v. Florida may also trigger heightened scrutiny status in higher courts; The Religious Freedom Restoration Act (1993) places strict scrutiny on cases which “burden any aspect of religious observance or practice.”

But framing the issue as one of Free Exercise does not interact with major objections to abortion rights. Anti-abortion advocates contend that abortion is tantamount to murder. An anti-abortion advocate may argue that just as religious rituals involving human sacrifice are illegal, so abortion ought to be illegal. Anti-abortion advocates may be able to argue that abortion bans hold up against strict scrutiny since “preserving potential life” constitutes a “compelling interest.”

The question of when life begins—which is fundamentally a moral and religious question—is both essential to the abortion debate and often ignored by left-leaning activists. For select Christian advocacy groups (as well as other anti-abortion groups) who believe that life begins at conception, abortion bans are a deeply moral issue. Abortion bans which operate under the logic that abortion is murder essentially legislate a definition of when life begins, which is problematic from a First Amendment perspective; the Establishment Clause of the First Amendment prevents the government from intervening in religious debates. While numerous legal thinkers have associated the abortion debate with the First Amendment, this argument has not been fully litigated. As an amicus brief filed in Dobbs by the Freedom From Religion Foundation, Center for Inquiry, and American Atheists  points out, anti-abortion rhetoric is explicitly religious: “There is hardly a secular veil to the religious intent and positions of individuals, churches, and state actors in their attempts to limit access to abortion.” Justice Stevens located a similar issue with anti-abortion rhetoric in his concurring opinion in Webster v. Reproductive Health Services (1989) , stating: “I am persuaded that the absence of any secular purpose for the legislative declarations that life begins at conception and that conception occurs at fertilization makes the relevant portion of the preamble invalid under the Establishment Clause of the First Amendment to the Federal Constitution.” Judges who justify their judicial decisions on abortion using similar rhetoric blur the line between church and state. 

Framing the abortion debate around religious freedom would thus address the two main categories of arguments made by anti-abortion activists: arguments centered around issues with substantive due process and moral objections to abortion. 

Conservatives may maintain, however, that legalizing abortion on the federal level is an Establishment Clause violation to begin with, since the government would essentially be imposing a federal position on abortion. Many anti-abortion advocates favor leaving abortion rights up to individual states. However, in the absence of recognized federal, constitutional protection of abortion rights, states will ban abortion. Protecting religious freedom of the individual is of the utmost importance  — the United States government must actively intervene in order to uphold the line between church and state. Protecting abortion rights would allow everyone in the United States to act in accordance with their own moral and religious perspectives on abortion. 

Reframing the abortion rights debate as a question of religious freedom is the most viable path forward. Anchoring abortion rights in the Establishment Clause would ensure Americans have the right to maintain their own personal and religious beliefs regarding the question of when life begins. In the short term, however, litigants could take advantage of Establishment Clauses in state constitutions. Yet, given the swing of the Court towards expanding religious freedom protections at the time of writing, Free Exercise arguments may prove better at securing citizens a right to an abortion. 

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The Second Circuit Should Reverse a Misguided “Abortion Pill Reversal” Ruling

Last week, a federal district judge in Buffalo, New York, issued a ruling enjoining the state attorney general, Letitia James, from enforcing state laws barring deceptive acts or practices and false advertising by crisis pregnancy centers that promote “abortion pill reversal” (APR). The judge said that enforcement of these laws against the plaintiffs would violate their First Amendment rights.

The opinion warrants reversal because it fundamentally misapprehends the state’s interest in combating deception, which is not limited to preventing financial losses. The state also has a profound interest in the health and safety of its citizens.

The Parties and the Case

The National Institute for Family and Life Advocates (NIFLA) operates crisis pregnancy centers —which provide some pregnancy-related services but do their best to steer those who come to them away from abortion—throughout the country. They also now promote APR to people who sought to end their pregnancies through the two-drug protocol of mifepristone and misoprostol. They claim that someone who has taken mifepristone but has not yet taken misoprostol can reverse the former’s effects by skipping the latter and taking supplemental progesterone instead. Some small uncontrolled studies suggest that this protocol may be effective in some cases, but there is no systematic evidence for either its efficacy or safety .

NIFLA and two of its member centers in New York State sued Attorney General James, seeking (and in last week’s ruling obtaining) an injunction against state court civil lawsuits that aim to block their advertising APR. They pointed to a suit that James brought against other crisis pregnancy centers in May as the reason they feared that they could be next.

Before reaching the merits, Judge John L. Sinatra, Jr., needed to get past a number of procedural obstacles, including the argument that the plaintiffs lacked standing, as well as a variety of so-called abstention doctrines. His rulings on these preliminary issues are not obviously wrong but not obviously correct either. A federal statute bars federal courts from enjoining state court proceedings, but by its terms it applies only to already-filed proceedings. The same is more or less true of the abstention doctrines.

That said, principles of federalism and judicial restraint might have led a more cautious and temperamentally conservative judge to accept the attorney general’s contention that NIFLA and the plaintiff centers would have had a full and fair opportunity to make their First Amendment argument in state court if and when James brought an action against them. Judge Sinatra, appointed to the federal bench by President Trump, is indeed conservative, but at least in this case, less temperamentally than ideologically so.

The very first sentence of Judge Sinatra’s opinion describes the statements for which the plaintiffs sought First Amendment protection as promoting a protocol designed “to reverse the effects of a first chemical abortion pill and, thereby, help to save the life of [a pregnant person’s] unborn child.” Later in the opinion, he avers that the plaintiffs would suffer irreparable injury without an injunction, which “serves the public interest by allowing women to access and receive information that may lead to saving the lives of their unborn children.” He repeats a variation of this formulation another two times, never using quotation marks, and thus each time speaking in his own voice. In using the loaded rhetoric of the anti-abortion movement, Judge Sinatra made clear what kind of conservative he is.

A First Amendment Right to Advertise Snake Oil, So Long as it’s Free?

The heart of Judge Sinatra’s opinion is his conclusion that the plaintiffs would likely prevail on the merits. To be clear, he does not say that the plaintiffs are entitled to prevail because their claims about APR are true. If they are true, that is, if APR is safe and effective—something that could only be determined with a full airing of the relevant scientific evidence—then the state could not block advertising or other promotion of APR. Judge Sinatra nonetheless granted the plaintiffs a preliminary injunction without hearing testimony or making any findings about the safety or efficacy of APR because, he said, even if the plaintiffs’ claims are false, they are protected free speech.

Can that be right? In some sense yes. As the Supreme Court recognized in United States v. Alvarez , many false statements are protected by the First Amendment. But fraud is not. Yet Judge Sinatra found that the plaintiffs’ advertisement of APR does not amount to either fraud or commercial speech entitled to less than full First Amendment protection. He did so because the plaintiffs lack a commercial motive: crisis pregnancy centers do not charge for their services.

Judge Sinatra’s understanding of the state’s interest is too narrow. As a preliminary matter, he mistakenly relies (in footnote 14 of his opinion) on the fact that the New York fraud statute requires a knowingly false statement. That might be a good argument for rejecting the attorney general’s interpretation of New York law, but under longstanding Supreme Court precedent , federal courts may not enjoin state officials against violating state law. The issue is not what New York’s laws proscribe but what the First Amendment allows those laws to proscribe.

More fundamentally, fraud for financial gain is not the only possible exception to the First Amendment’s presumptive protection for false statements. Government may proscribe medical quackery and may thus also proscribe promotion of such quackery.

To be sure, in the 2018 case of NIFLA v. Becerra , the Supreme Court held that there is no “professional speech” exception to the First Amendment. Consequently, the Court struck down a California law requiring crisis pregnancy centers to disseminate information about abortion availability. In my view, the dissent by Justice Breyer for himself and three other Justices was more persuasive than the majority opinion in that case. The dissenters argued that the majority’s reasoning threatened disclosure requirements that are routine in the regulation of foods, drugs, securities, consumer products, and more. But so far, at least, those dominoes have not fallen, suggesting that the NIFLA decision is narrower than some of its rhetoric would indicate.

In any event, it is not difficult to distinguish the Supreme Court’s NIFLA decision from the NIFLA case that confronted Judge Sinatra. First, the California law at issue in the Supreme Court case singled out abortion-related speech and was thus clearly content and viewpoint-based in a way that is not true in the New York case, where Attorney General James relied entirely on New York’s general statutes. Judge Sinatra’s assertion that the lawsuits James could bring against NIFLA and its members would be content and viewpoint-based is dubious.

Second, the Supreme Court NIFLA case did not involve false advertising. To read it as protecting a right to make false statements in an effort to persuade people to embark on an unproven and potentially dangerous course of medical treatment would be a bridge too far.

In the end, Judge Sinatra’s central argument is that NIFLA and its members do not charge for the services they provide, but that should not be persuasive. The government’s interest in preventing con men from selling snake oil as a miracle cure is not exhausted by pocketbook concerns. If regulators have reason to think that the snake oil is poisonous, it can prohibit its distribution and promotion on health and safety grounds. Poisons are equally poisonous whether sold or given away for free.

To be clear, the foregoing analysis rests on the assumption that the plaintiffs’ claims about APR are false. If, after serious scientific investigation and a full trial, it turns out that the claims for APR are true, then it would be problematic for the government to forbid their advertisement. But Judge Sinatra issued his preliminary injunction because he thought that the plaintiffs have a free speech right to make even false statements about APR.

Impact on Gender-Affirming Care

Judge Sinatra made one further argument. No one can receive progesterone for the purpose of reversing an abortion pill without a prescription from a doctor. Thus, Judge Sinatra said, regulation of APR promotion by crisis pregnancy centers is unnecessary. Is that persuasive?

Not as a constitutional matter. Judge Sinatra invoked the involvement of doctors in prescribing progesterone as part of his application of strict scrutiny to the enforcement of New York’s laws against the plaintiffs. It ostensibly shows that enforcement actions by Attorney General James against NIFLA and its members are not narrowly tailored. But if James is right that promotion of APR is not fully protected speech, then strict scrutiny does not apply and there is no requirement of narrow tailoring.

Meanwhile, the fact that a patient seeking to reverse the effect of mifepristone must obtain a prescription from a doctor does not absolve those who promote APR of all responsibility, especially if doctors who write such prescriptions are thereby acting irresponsibly or unethically.

Are they? That depends on whether APR via progesterone is safe and effective, which, as noted above, is unclear. At the very least, such a prescription is off-label.

To be sure, off-label uses of FDA-approved medications are quite common. Indeed, in the coming Term, the Supreme Court will hear argument in United States v. Skrmetti , which involves a challenge to the constitutionality of Tennessee’s prohibition of gender-affirming medical care for transgender minors. Some of the hormone therapies used for such care are also off-label. Does that mean that Tennessee’s prohibition of gender-affirming care and New York’s enforcement of its deceptive practices laws against APR must stand or fall together?

The short answer is no. The fact that a use is off-label does not itself suffice to demonstrate that it should be forbidden, but many off-label uses are appropriately regulable because they are dangerous and/or ineffective. Fentanyl is approved for use in surgery and other instances of severe pain (such as in cancer patients), but doctors who prescribed Fentanyl for headaches or as a treatment for a mild case of the flu would be properly subject to discipline by their state medical licensing authorities. The question is not whether a drug is being used off-label but whether it is being used safely and effectively.

On that question, there is an important distinction between APR via progesterone and hormone therapy and puberty blockers as transgender care. Although more research needs to be done on both, APR is currently at best an experimental treatment, whereas the gender-affirming care for minors that Tennessee has banned is the current standard of care. And as Professor Lewis Grossman explains in a forthcoming law review article , there is a very longstanding American tradition of permitting doctors to prescribe standard-of-care medicine, contrasting sharply with the legitimate regulation of idiosyncratic medical practices like progesterone for APR.

Perhaps one day rigorous studies and clinical trials will show that progesterone supplementation is a safe and effective means of reversing the effects of mifepristone for those patients, however few there are, who change their minds about wanting an abortion only after taking mifepristone. If so, at that point, the state would have no good reason to prevent patients from taking progesterone for that purpose or blocking efforts by the likes of NIFLA and its members to advertise and promote APR in a non-coercive manner.

For now, however, promotion of APR as a legitimate medical treatment amounts to false advertising from which the attorney general is entitled to protect New Yorkers. When she inevitably seeks review of Judge Sinatra’s ruling in the U.S. Court of Appeals for the Second Circuit, that court should reverse his abortion-reversal decision.

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Pro-Choice Does Not Mean Pro-Abortion: An Argument for Abortion Rights Featuring the Rev. Carlton Veazey

Since the Supreme Court’s historic 1973 decision in Roe v. Wade , the issue of a woman’s right to an abortion has fostered one of the most contentious moral and political debates in America. Opponents of abortion rights argue that life begins at conception – making abortion tantamount to homicide. Abortion rights advocates, in contrast, maintain that women have a right to decide what happens to their bodies – sometimes without any restrictions.

To explore the case for abortion rights, the Pew Forum turns to the Rev. Carlton W. Veazey, who for more than a decade has been president of the Religious Coalition for Reproductive Choice. Based in Washington, D.C., the coalition advocates for reproductive choice and religious freedom on behalf of about 40 religious groups and organizations. Prior to joining the coalition, Veazey spent 33 years as a pastor at Zion Baptist Church in Washington, D.C.

A counterargument explaining the case against abortion rights is made by the Rev. J. Daniel Mindling, professor of moral theology at Mount St. Mary’s Seminary.

Featuring: The Rev. Carlton W. Veazey, President, Religious Coalition for Reproductive Choice

Interviewer: David Masci, Senior Research Fellow, Pew Forum on Religion & Public Life

Question & Answer

Can you explain how your Christian faith informs your views in support of abortion rights?

I grew up in a Christian home. My father was a Baptist minister for many years in Memphis, Tenn. One of the things that he instilled in me – I used to hear it so much – was free will, free will, free will. It was ingrained in me that you have the ability to make choices. You have the ability to decide what you want to do. You are responsible for your decisions, but God has given you that responsibility, that option to make decisions.

I had firsthand experience of seeing black women and poor women being disproportionately impacted by the fact that they had no choices about an unintended pregnancy, even if it would damage their health or cause great hardship in their family. And I remember some of them being maimed in back-alley abortions; some of them died. There was no legal choice before Roe v. Wade .

But in this day and time, we have a clearer understanding that men and women are moral agents and equipped to make decisions about even the most difficult and complex matters. We must ensure a woman can determine when and whether to have children according to her own conscience and religious beliefs and without governmental interference or coercion. We must also ensure that women have the resources to have a healthy, safe pregnancy, if that is their decision, and that women and families have the resources to raise a child with security.

The right to choose has changed and expanded over the years since Roe v. Wade . We now speak of reproductive justice – and that includes comprehensive sex education, family planning and contraception, adequate medical care, a safe environment, the ability to continue a pregnancy and the resources that make that choice possible. That is my moral framework.

You talk about free will, and as a Christian you believe in free will. But you also said that God gave us free will and gave us the opportunity to make right and wrong choices. Why do you believe that abortion can, at least in some instances, be the right choice?

Dan Maguire, a former Jesuit priest and professor of moral theology and ethics at Marquette University, says that to have a child can be a sacred choice, but to not have a child can also be a sacred choice.

And these choices revolve around circumstances and issues – like whether a person is old enough to care for a child or whether a woman already has more children than she can care for. Also, remember that medical circumstances are the reason many women have an abortion – for example, if they are having chemotherapy for cancer or have a life-threatening chronic illness – and most later-term abortions occur because of fetal abnormalities that will result in stillbirth or the death of the child. These are difficult decisions; they’re moral decisions, sometimes requiring a woman to decide if she will risk her life for a pregnancy.

Abortion is a very serious decision and each decision depends on circumstances. That’s why I tell people: I am not pro-abortion, I am pro-choice. And that’s an important distinction.

You’ve talked about the right of a woman to make a choice. Does the fetus have any rights?

First, let me say that the religious, pro-choice position is based on respect for human life, including potential life and existing life.

But I do not believe that life as we know it starts at conception. I am troubled by the implications of a fetus having legal rights because that could pit the fetus against the woman carrying the fetus; for example, if the woman needed a medical procedure, the law could require the fetus to be considered separately and equally.

From a religious perspective, it’s more important to consider the moral issues involved in making a decision about abortion. Also, it’s important to remember that religious traditions have very different ideas about the status of the fetus. Roman Catholic doctrine regards a fertilized egg as a human being. Judaism holds that life begins with the first breath.

What about at the very end of a woman’s pregnancy? Does a fetus acquire rights after the point of viability, when it can survive outside the womb? Or let me ask it another way: Assuming a woman is healthy and her fetus is healthy, should the woman be able to terminate her pregnancy until the end of her pregnancy?

There’s an assumption that a woman would end a viable pregnancy carelessly or without a reason. The facts don’t bear this out. Most abortions are performed in the first 12 weeks of pregnancy. Late abortions are virtually always performed for the most serious medical and health reasons, including saving the woman’s life.

But what if such a case came before you? If you were that woman’s pastor, what would you say?

I would talk to her in a helpful, positive, respectful way and help her discuss what was troubling her. I would suggest alternatives such as adoption.

Let me shift gears a little bit. Many Americans have said they favor a compromise, or reaching a middle-ground policy, on abortion. Do you sympathize with this desire and do you think that both sides should compromise to end this rancorous debate?

I have been to more middle-ground and common-ground meetings than I can remember and I’ve never been to one where we walked out with any decision.

That being said, I think that we all should agree that abortion should be rare. How do we do that? We do that by providing comprehensive sex education in schools and in religious congregations and by ensuring that there is accurate information about contraception and that contraception is available. Unfortunately, the U.S. Congress has not been willing to pass a bill to fund comprehensive sex education, but they are willing to put a lot of money into failed and harmful abstinence-only programs that often rely on scare tactics and inaccurate information.

Former Surgeon General David Satcher has shown that abstinence-only programs do not work and that we should provide young people with the information to protect themselves. Education that stresses abstinence and provides accurate information about contraception will reduce the abortion rate. That is the ground that I stand on. I would say that here is a way we can work together to reduce the need for abortions.

Abortion has become central to what many people call the “culture wars.” Some consider it to be the most contentious moral issue in America today. Why do many Catholics, evangelical Christians and other people of faith disagree with you?

I was raised to respect differing views so the rigid views against abortion are hard for me to understand. I will often tell someone on the other side, “I respect you. I may disagree with your theological perspective, but I respect your views. But I think it’s totally arrogant for you to tell me that I need to believe what you believe.” It’s not that I think we should not try to win each other over. But we have to respect people’s different religious beliefs.

But what about people who believe that life begins at conception and that terminating a pregnancy is murder? For them, it may not just be about respecting or tolerating each other’s viewpoints; they believe this is an issue of life or death. What do you say to people who make that kind of argument?

I would say that they have a right to their beliefs, as do I. I would try to explain that my views are grounded in my religion, as are theirs. I believe that we must ensure that women are treated with dignity and respect and that women are able to follow the dictates of their conscience – and that includes their reproductive decisions. Ultimately, it is the government’s responsibility to ensure that women have the ability to make decisions of conscience and have access to reproductive health services.

Some in the anti-abortion camp contend that the existence of legalized abortion is a sign of the self-centeredness and selfishness of our age. Is there any validity to this view?

Although abortion is a very difficult decision, it can be the most responsible decision a person can make when faced with an unintended pregnancy or a pregnancy that will have serious health consequences.

Depending on the circumstances, it might be selfish to bring a child into the world. You know, a lot of people say, “You must bring this child into the world.” They are 100 percent supportive while the child is in the womb. As soon as the child is born, they abort the child in other ways. They abort a child through lack of health care, lack of education, lack of housing, and through poverty, which can drive a child into drugs or the criminal justice system.

So is it selfish to bring children into the world and not care for them? I think the other side can be very selfish by neglecting the children we have already. For all practical purposes, children whom we are neglecting are being aborted.

This transcript has been edited for clarity, spelling and grammar.

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Are laws prohibiting abortion moral?

A pro-life protester and a supporter of legal abortion argue outside the Arizona State Capitol in Phoenix as the state Senate votes to repeal its near total ban on abortion May 1. (OSV News/Reuters/Liliana Salgado)

by David Ozar

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For some Catholics, a key factor in voting decisions is whether a candidate will support the enactment of laws prohibiting abortion. But are these laws themselves moral according to the teachings of the Catholic Church? Even if a person strongly believes that abortion is immoral, conscientious Catholics should be asking themselves whether these are morally acceptable laws.

Humans don't always make good laws, which is why the Catechism of the Catholic Church  teaches that every one of a society's laws must be tested to be sure that it "seeks the common good of the group concerned" and "employs morally licit means to attain it."

Catholic teaching has long held that the immorality of an act is not itself a sufficient reason for acts of that kind to be punishable under the law. Therefore, when discussing legal punishment for deliberate acts of abortion, the catechism  specifies that the punishment must be  appropriate : "As a consequence of the respect and protection which must be ensured for the unborn child from the moment of conception, the law must provide appropriate penal sanctions for every deliberate violation of the child's rights."

The catechism does not provide a detailed test for determining if a law is morally justifiable, but Thomas Aquinas identifies three conditions that every human law must fulfill in order to further the common good and be morally acceptable. Every proposed law, he explains, must dependably:

• Remove the evil the law is intended to remove;
• Further the good the law is intended to further;
• Prevent "any harm ensuing from the law itself."

A  careful examination of laws prohibiting abortion, like those that have been passed since the Supreme Court's  decision in  Dobbs , suggests they do not meet the criteria for moral laws as defined by Aquinas and supported by Catholic teaching.

Criterion 1

None of the state laws prohibiting abortion passed since  Dobbs prescribe punishment for women who have had an abortion or are seeking to do so. Instead, it is physicians or others who perform or assist in abortions whom these laws punish. Therefore, it is laws punishing physicians that need to be examined, and the first question to ask about the morality of such laws is whether they will dependably reduce the number of abortions.

Pro-life protesters hold placards outside of a Planned Parenthood mobile clinic nearby the United Center, the host venue of the Democratic National Convention in Chicago Aug. 19. (OSV News/Reuters/Vincent Alban)

The penalties such laws prescribe for physicians who perform abortions — loss of medical license, severe financial penalties, jail time — are certainly serious enough to deter most physicians who might otherwise be available to perform abortions.

But women have been able to end pregnancies for hundreds of years without involving a physician, although often with significant risk to themselves. In addition, biological abortifacients are now widely available, and women who have the means can travel to a state where abortion services are legal if the state where they live prohibits them. These realities raise the question whether such laws will dependably reduce the number of abortions.

Criterion 2

These laws can only further the good of the lives and health of children if the number of abortions is in fact significantly reduced. Laws punishing abortions already performed do nothing to positively enhance the health of those children.

In fact, there are other nations that have lower abortion rates than the United States, even though these nations do not have laws prohibiting and punishing abortions. What they do have are accessible prenatal and perinatal care and laws making sure that there will be adequate food, housing, income, skilled child care and dependable education as children grow and develop.

In addition, in order to significantly reduce the number of abortions, states having such laws will need to establish means of enforcing them. Legal authorities will need to know when and by whom the relevant actions have occurred. It will be necessary for law enforcement authorities to investigate every incident labeled a miscarriage or, at the extreme, to determine the content of every visit to a physician by a pregnancy-capable person. 

The reach of law enforcement into people's private lives is, for good reasons, necessarily limited in any democratic society. It is doubtful that our society would tolerate routine invasions of privacy like this. But without such invasive mechanisms of enforcement, laws punishing physicians who perform abortions would be even less likely to dependably eliminate future abortions.

The likelihood that such laws will not significantly reduce the number of abortions should give supporters of such laws serious reasons to examine their morality more carefully, especially if these laws also fail to dependably prevent serious "harm ensuing from the law itself."

Criterion 3

One serious negative effect of laws passed since  Dobbs that prohibit abortion and punish physicians is that many women in states having these laws who need emergency obstetric care because of the nature of their pregnancies or the condition of their fetuses have become  unable to get it .

Another, equally serious negative effect of laws prohibiting abortion is that they will almost certainly result in many people being punished who are not guilty of the relevant evil. Any law that mistakenly punishes people who are not guilty is surely causing harm.

The reason for this is Catholic teaching about conscience is clear in the catechism, which  states , "A human being must always obey the certain judgment of his conscience." That is why when a person has carefully formed their conscience regarding what morality requires, the catechism  claims , "Man has the right to act in conscience and in freedom so as personally to make moral decisions. 'He must not be forced to act contrary to his conscience. Nor must he be prevented from acting according to his conscience, especially in religious matters.' "

Some people, though they may consider abortion to be an important moral matter because they consider the lives of fetuses valuable, may nevertheless consider other aspects of a situation to be of sufficient moral importance to outweigh these considerations. Contrary to the catechism's  teaching that "from the first moment of his existence, a human being must be recognized as having the rights of a person," they may not believe a fetus has the rights of a full human person. 

People celebrate the defeat of Issue 1, a Republican-backed measure that would have made it harder to amend the state constitution, an initiative aimed at helping defeat a November referendum that would protect abortion access in the state, after early results were announced during an election night party at the Columbus Fire Fighters Local 67 in Columbus, Ohio, U.S. August 8, 2023. (OSV News/USA Today Network via Reuters/Adam Cairns)

Therefore, they may form their consciences about abortion from a different point of view. They may consider abortion to be a serious moral matter, a clear and possibly tragic harm to a member of the human family, but not the violation of human rights that the Catholic Church sees in such an act.

Catholic teaching about conscience is clear that if a person has carefully formed their conscience about the morality of an act and chooses an immoral action because they sincerely believe it is the moral thing to do, this is a forgivable failing.

"One commits venial sin when, in a less serious matter, he does not observe the standard prescribed by the moral law, or when he disobeys the moral law in a grave matter, but without full knowledge or without complete consent,"  says the catechism. "Unintentional ignorance," the catechism states clearly, "can diminish or even remove the imputability [i.e., responsibility] of a grave offense."

It is almost certain that laws prohibiting abortion would punish physicians performing abortions or other persons falling under such laws' prohibitions who have acted in good conscience and who, in accord with Catholic teaching about conscience, are therefore not guilty of grave moral wrongs. Laws that would mistakenly punish persons who, according to Catholic teaching, have acted as they morally should are surely failing to prevent "harm ensuing from the law itself."

Catholics for whom concern about abortion impacts their vote in the upcoming election and Catholics who have supported the laws prohibiting abortion that have been passed since  Dobbs have a serious duty to consider whether these are moral laws.

If these laws fail the tests offered by Aquinas and supported by Catholic teaching, then conscientious Catholics who are opposed to abortion should determine who to vote for on the basis of whether these candidates will support the life and dignity of every individual throughout their lives, and not whether they support laws that by this measure, should be considered morally defective.

Editor's note: For a more extensive critique of laws prohibiting abortion using Thomas Aquinas' three criteria, see " Should Catholics Support Laws Prohibiting Abortion? " published in New Blackfriars by Cambridge University Press.

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Perspective: How the Utah Supreme Court could turn family law principles upside down

In a novel argument, planned parenthood says parental rights include ending the life of an unborn child.

By Camille S. Williams

In its challenge to Utah’s abortion law, Planned Parenthood Association of Utah argues that a woman must have access to abortion in order to exercise her right to parent and to determine her family’s composition. In simple terms, Planned Parenthood contends that parental rights include the right to end the life of unwanted unborn children. That is an astonishing claim completely antithetical to the long-recognized parental duties to provide for and to protect their children.

The claim is based on Planned Parenthood’s assertion in its complaint that views about when life begins are “inherently religious and spiritual.” What follows logically from that assertion is that whether the unborn child is alive or not is entirely dependent upon the mother’s religious or spiritual views. Biology doesn’t work that way, and determining whether a human being is living is important in law. Utah’s abortion law is based on the fact that life begins at conception, and it resembles the nonreligious, nonspiritual American Law Institute’s pre-Roe and Doe Model Penal Code .

In truth, Planned Parenthood’s dispute with the state is not about when life begins, but about when unborn human beings should be protected by law. Human life is an intrinsic good recognized by the state’s public policy “to encourage all persons to respect the right to life of all other persons ... including all unborn persons.”

The Utah law — SB 174 — does not give unborn children rights that would prevent all abortions. But it does value and protect human life by limiting abortion to medically indicated procedures which preserve the mother’s life and health (as with ending an ectopic pregnancy or removing a dead fetus); or when pregnancy is forced (as in cases of rape or incest); or when the baby has a severe brain defect or other lethal conditions the baby can’t survive.

Planned Parenthood of Utah’s novel view that parental rights include the right to end a life, as the state points out in its submission to the Utah Supreme Court, is only one of seven claims contending that Utah’s abortion regulation violates “eleven different state constitutional provisions that alone or in various combinations impliedly guarantee a right to abortion.”

Since the state constitution never explicitly mentions abortion, the state notes that some “PPAU claims involve double-implied rights — implying a right to abortion from another implied right.”

In other words, Planned Parenthood of Utah is arguing that even though the constitution does not say anything about a right to determine who will be part of your family, such a right can be implied by the language of the constitution. The language of that implied right can then be interpreted as implying a Roe-like right to abortion, making any tie to the constitutional language doubly tenuous.

Surprisingly, Planned Parenthood’s family composition claim relies on a case called In Re J.P. In that case, the Utah Supreme Court openly criticized Roe v. Wade for relying on “a ‘right to privacy’ not mentioned in the Constitution to establish other rights unknown at common law.” The court differentiated its own reasoning from that of the Roe court by explaining “that the parental liberty right at issue in this case is fundamental to the existence of the institution of the family, which is ‘deeply rooted in this Nation’s history and tradition,’ and in the ‘history and culture of Western civilization.’ This rooting in history and the common law validates and limits the due process protection afforded parental rights, in contrast to ... innovations undisciplined by any but abstract formulae.”

Planned Parenthood of Utah’s doubly implied rights don’t arise directly from the language of the state constitution, nor from the common law, nor from the history of the nation.

The major issue decided by the recent Utah Supreme Court opinion was whether to leave in place the injunction preventing the law’s enforcement while the case is litigated. However, its 78-page majority decision suggests an openness to hear claims similar to those made in cases Dobbs overturned. Planned Parenthood seeks to ground in the Utah Constitution a Roe-like outcome (little or no protection of the unborn until viability) based on arguments used in Casey (women rely on abortion in order to access other rights and opportunities). In a footnote, the court indicated that “the relevant constitutional inquiry is whether the Utah Constitution protects a right that might be infringed by a law unduly restricting abortion access, not whether the Utah Constitution contains an ‘implied right to abortion.’” That appears to be a distinction without a difference.

The court began its analysis by stating that the “Utah Constitution enshrines principles, not application of those principles,” and that the court’s “proper inquiry focuses on what principle the constitution encapsulates and how that principle should apply.” It then illustrated how it might identify a principle not explicitly listed in the Utah Constitution by examining Planned Parenthood’s and the state’s discussion of parental rights and family composition. The court concluded that the rights the In Re J.P . case “recognized are bound together by a basic principle: autonomy over decisions concerning one’s family.”

What is troubling, though, is that the court was silent about another principle embedded in the case: The child is not to be reduced to the status of chattel (property) “to be treated or mistreated by his or her parents according to their pleasure.” In fact, in parental rights termination cases, the court has stated that “the child’s welfare is the ‘paramount consideration.’ That principle does not imply that the child’s welfare is the sole consideration, to the exclusion of parental rights ... (but it does mean) that parental rights, though inherent and retained, are not absolute. ...”

How the court will weigh such conflicting constitutional principles is unclear. Historically, when the principle of parental autonomy conflicts with the principle that the child’s welfare is paramount and the principle that parents have a duty to protect the welfare of children, the state has harmonized those principles by finding life-affirming ways to protect children and to support parents’ efforts to fulfill their parental duties. Only in the worst situations, and generally after reunification efforts have failed, does the state move to terminate parental rights of parents proven to be unfit or incompetent due to conduct or conditions seriously detrimental to the child. The state then seeks safe, permanent homes for those children. In contrast, Planned Parenthood’s approach seeks no such balance. In effect, it advances an unbalanced view that in order to achieve a preferred family composition it is permissible to end the life of one child in favor of parenting another child either born or not yet conceived.

The state cannot dictate the details of family life in an effort to maximize protection of unborn and other vulnerable children. Utah law attempts the minimal, preventing parents from harming or killing their children.

In contrast, Planned Parenthood of Utah urges the state’s courts to reinstate Roe’s abortion policy by finding an unenumerated natural parental or familial right under the Utah Constitution for mothers to end the lives of their unwanted unborn children — essentially treating them like chattel in the guise of a right to parent or a right to family formation. As Dobbs demonstrated, however, a parental right to kill the unborn is not deeply rooted in our nation’s history. Abortion is not deeply rooted in Utah’s history, either.

In practical terms, the state is limited in its ability to protect the child before birth and in its ability to protect the mother’s health. However, Utah’s abortion law is a step in the right direction because it values the lives of mothers and children and seeks to protect both — a goal consistent with family law principles deeply embedded in the history of our state and our nation.

Camille S. Williams is an attorney practicing in Provo who has published articles related to women’s and family issues. The views expressed are her own.

Samantha Putterman, PolitiFact Samantha Putterman, PolitiFact

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• Copy URL https://www.pbs.org/newshour/politics/fact-checking-warnings-from-democrats-about-project-2025-and-donald-trump

Fact-checking warnings from Democrats about Project 2025 and Donald Trump

This fact check originally appeared on PolitiFact .

Project 2025 has a starring role in this week’s Democratic National Convention.

And it was front and center on Night 1.

WATCH: Hauling large copy of Project 2025, Michigan state Sen. McMorrow speaks at 2024 DNC

“This is Project 2025,” Michigan state Sen. Mallory McMorrow, D-Royal Oak, said as she laid a hardbound copy of the 900-page document on the lectern. “Over the next four nights, you are going to hear a lot about what is in this 900-page document. Why? Because this is the Republican blueprint for a second Trump term.”

Vice President Kamala Harris, the Democratic presidential nominee, has warned Americans about “Trump’s Project 2025” agenda — even though former President Donald Trump doesn’t claim the conservative presidential transition document.

“Donald Trump wants to take our country backward,” Harris said July 23 in Milwaukee. “He and his extreme Project 2025 agenda will weaken the middle class. Like, we know we got to take this seriously, and can you believe they put that thing in writing?”

Minnesota Gov. Tim Walz, Harris’ running mate, has joined in on the talking point.

“Don’t believe (Trump) when he’s playing dumb about this Project 2025. He knows exactly what it’ll do,” Walz said Aug. 9 in Glendale, Arizona.

Trump’s campaign has worked to build distance from the project, which the Heritage Foundation, a conservative think tank, led with contributions from dozens of conservative groups.

Much of the plan calls for extensive executive-branch overhauls and draws on both long-standing conservative principles, such as tax cuts, and more recent culture war issues. It lays out recommendations for disbanding the Commerce and Education departments, eliminating certain climate protections and consolidating more power to the president.

Project 2025 offers a sweeping vision for a Republican-led executive branch, and some of its policies mirror Trump’s 2024 agenda, But Harris and her presidential campaign have at times gone too far in describing what the project calls for and how closely the plans overlap with Trump’s campaign.

PolitiFact researched Harris’ warnings about how the plan would affect reproductive rights, federal entitlement programs and education, just as we did for President Joe Biden’s Project 2025 rhetoric. Here’s what the project does and doesn’t call for, and how it squares with Trump’s positions.

Are Trump and Project 2025 connected?

To distance himself from Project 2025 amid the Democratic attacks, Trump wrote on Truth Social that he “knows nothing” about it and has “no idea” who is in charge of it. (CNN identified at least 140 former advisers from the Trump administration who have been involved.)

The Heritage Foundation sought contributions from more than 100 conservative organizations for its policy vision for the next Republican presidency, which was published in 2023.

Project 2025 is now winding down some of its policy operations, and director Paul Dans, a former Trump administration official, is stepping down, The Washington Post reported July 30. Trump campaign managers Susie Wiles and Chris LaCivita denounced the document.

WATCH: A look at the Project 2025 plan to reshape government and Trump’s links to its authors

However, Project 2025 contributors include a number of high-ranking officials from Trump’s first administration, including former White House adviser Peter Navarro and former Housing and Urban Development Secretary Ben Carson.

A recently released recording of Russell Vought, a Project 2025 author and the former director of Trump’s Office of Management and Budget, showed Vought saying Trump’s “very supportive of what we do.” He said Trump was only distancing himself because Democrats were making a bogeyman out of the document.

Project 2025 wouldn’t ban abortion outright, but would curtail access

The Harris campaign shared a graphic on X that claimed “Trump’s Project 2025 plan for workers” would “go after birth control and ban abortion nationwide.”

The plan doesn’t call to ban abortion nationwide, though its recommendations could curtail some contraceptives and limit abortion access.

What’s known about Trump’s abortion agenda neither lines up with Harris’ description nor Project 2025’s wish list.

Project 2025 says the Department of Health and Human Services Department should “return to being known as the Department of Life by explicitly rejecting the notion that abortion is health care.”

It recommends that the Food and Drug Administration reverse its 2000 approval of mifepristone, the first pill taken in a two-drug regimen for a medication abortion. Medication is the most common form of abortion in the U.S. — accounting for around 63 percent in 2023.

If mifepristone were to remain approved, Project 2025 recommends new rules, such as cutting its use from 10 weeks into pregnancy to seven. It would have to be provided to patients in person — part of the group’s efforts to limit access to the drug by mail. In June, the U.S. Supreme Court rejected a legal challenge to mifepristone’s FDA approval over procedural grounds.

WATCH: Trump’s plans for health care and reproductive rights if he returns to White House The manual also calls for the Justice Department to enforce the 1873 Comstock Act on mifepristone, which bans the mailing of “obscene” materials. Abortion access supporters fear that a strict interpretation of the law could go further to ban mailing the materials used in procedural abortions, such as surgical instruments and equipment.

The plan proposes withholding federal money from states that don’t report to the Centers for Disease Control and Prevention how many abortions take place within their borders. The plan also would prohibit abortion providers, such as Planned Parenthood, from receiving Medicaid funds. It also calls for the Department of Health and Human Services to ensure that the training of medical professionals, including doctors and nurses, omits abortion training.

The document says some forms of emergency contraception — particularly Ella, a pill that can be taken within five days of unprotected sex to prevent pregnancy — should be excluded from no-cost coverage. The Affordable Care Act requires most private health insurers to cover recommended preventive services, which involves a range of birth control methods, including emergency contraception.

Trump has recently said states should decide abortion regulations and that he wouldn’t block access to contraceptives. Trump said during his June 27 debate with Biden that he wouldn’t ban mifepristone after the Supreme Court “approved” it. But the court rejected the lawsuit based on standing, not the case’s merits. He has not weighed in on the Comstock Act or said whether he supports it being used to block abortion medication, or other kinds of abortions.

Project 2025 doesn’t call for cutting Social Security, but proposes some changes to Medicare

“When you read (Project 2025),” Harris told a crowd July 23 in Wisconsin, “you will see, Donald Trump intends to cut Social Security and Medicare.”

The Project 2025 document does not call for Social Security cuts. None of its 10 references to Social Security addresses plans for cutting the program.

Harris also misleads about Trump’s Social Security views.

In his earlier campaigns and before he was a politician, Trump said about a half-dozen times that he’s open to major overhauls of Social Security, including cuts and privatization. More recently, in a March 2024 CNBC interview, Trump said of entitlement programs such as Social Security, “There’s a lot you can do in terms of entitlements, in terms of cutting.” However, he quickly walked that statement back, and his CNBC comment stands at odds with essentially everything else Trump has said during the 2024 presidential campaign.

Trump’s campaign website says that not “a single penny” should be cut from Social Security. We rated Harris’ claim that Trump intends to cut Social Security Mostly False.

Project 2025 does propose changes to Medicare, including making Medicare Advantage, the private insurance offering in Medicare, the “default” enrollment option. Unlike Original Medicare, Medicare Advantage plans have provider networks and can also require prior authorization, meaning that the plan can approve or deny certain services. Original Medicare plans don’t have prior authorization requirements.

The manual also calls for repealing health policies enacted under Biden, such as the Inflation Reduction Act. The law enabled Medicare to negotiate with drugmakers for the first time in history, and recently resulted in an agreement with drug companies to lower the prices of 10 expensive prescriptions for Medicare enrollees.

Trump, however, has said repeatedly during the 2024 presidential campaign that he will not cut Medicare.

Project 2025 would eliminate the Education Department, which Trump supports

The Harris campaign said Project 2025 would “eliminate the U.S. Department of Education” — and that’s accurate. Project 2025 says federal education policy “should be limited and, ultimately, the federal Department of Education should be eliminated.” The plan scales back the federal government’s role in education policy and devolves the functions that remain to other agencies.

Aside from eliminating the department, the project also proposes scrapping the Biden administration’s Title IX revision, which prohibits discrimination based on sexual orientation and gender identity. It also would let states opt out of federal education programs and calls for passing a federal parents’ bill of rights similar to ones passed in some Republican-led state legislatures.

Republicans, including Trump, have pledged to close the department, which gained its status in 1979 within Democratic President Jimmy Carter’s presidential Cabinet.

In one of his Agenda 47 policy videos, Trump promised to close the department and “to send all education work and needs back to the states.” Eliminating the department would have to go through Congress.

What Project 2025, Trump would do on overtime pay

In the graphic, the Harris campaign says Project 2025 allows “employers to stop paying workers for overtime work.”

The plan doesn’t call for banning overtime wages. It recommends changes to some Occupational Safety and Health Administration, or OSHA, regulations and to overtime rules. Some changes, if enacted, could result in some people losing overtime protections, experts told us.

The document proposes that the Labor Department maintain an overtime threshold “that does not punish businesses in lower-cost regions (e.g., the southeast United States).” This threshold is the amount of money executive, administrative or professional employees need to make for an employer to exempt them from overtime pay under the Fair Labor Standards Act.

In 2019, the Trump’s administration finalized a rule that expanded overtime pay eligibility to most salaried workers earning less than about $35,568, which it said made about 1.3 million more workers eligible for overtime pay. The Trump-era threshold is high enough to cover most line workers in lower-cost regions, Project 2025 said.

The Biden administration raised that threshold to $43,888 beginning July 1, and that will rise to $58,656 on Jan. 1, 2025. That would grant overtime eligibility to about 4 million workers, the Labor Department said.

It’s unclear how many workers Project 2025’s proposal to return to the Trump-era overtime threshold in some parts of the country would affect, but experts said some would presumably lose the right to overtime wages.

Other overtime proposals in Project 2025’s plan include allowing some workers to choose to accumulate paid time off instead of overtime pay, or to work more hours in one week and fewer in the next, rather than receive overtime.

Trump’s past with overtime pay is complicated. In 2016, the Obama administration said it would raise the overtime to salaried workers earning less than $47,476 a year, about double the exemption level set in 2004 of $23,660 a year.

But when a judge blocked the Obama rule, the Trump administration didn’t challenge the court ruling. Instead it set its own overtime threshold, which raised the amount, but by less than Obama.

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7 big issues at stake in the 2024 election

WASHINGTON — The policy contrasts between President Joe Biden and former President Donald Trump are sharpening as the general election campaign gets fully underway.

But what does the choice represent for ordinary voters and the economic and cultural issues they care about? A rematch between the Democratic incumbent and his Republican predecessor may feel uninspiring to many voters, but the policy stakes are enormous for tens of millions of Americans — and the world.

Here are seven big issues at stake in the 2024 election.

The contrast: Biden favors federal abortion protections; Trump opposes them. Trump supported nationwide restrictions on abortion as president but now downplays the need for a federal ban, as Republicans are divided over the issue. Biden does not support federal limits.

Biden has championed the Women’s Health Protection Act, a bill to protect abortion rights in all 50 states under federal law and prohibit medically unnecessary hurdles to accessing the procedure. He has asked voters to send him a Democratic Congress that supports legal abortion to achieve that.

Trump has boasted that he "broke Roe v. Wade" by picking three of the five Supreme Court justices who overturned it, delivering on a four-decade goal of the GOP. More recently, Trump has openly fretted that the backlash may cost him and his party the election. Last week, Trump said the issue should be left to states, a shift from his support for nationwide restrictions when he was president. His new stance has drawn pushback from GOP allies, like Sen. Lindsey Graham, of South Carolina , and anti-abortion-rights advocates, who say that he is wrong and that Republicans should not be deterred from their long-standing goal of enacting some nationwide abortion limits.

Some Republicans downplay the prospects of federal abortion restrictions’ passing Congress, even if they win full control. Biden and his allies are telling voters to look at the GOP’s long history of championing federal restrictions and not their recent rhetoric.

Immigration

The contrast: Trump has promised a sweeping crackdown on illegal immigration and tougher executive actions; Biden is asking Congress to give him more tools to manage an overwhelmed border and create new legal pathways to immigrate to the U.S.

Trump has called existing border laws an existential threat to the U.S., saying migrants are “ poisoning the blood of our country” and bringing new “ languages .” His campaign website says: “President Trump will shut down Biden’s border disaster. He will again end catch-and-release, restore Remain in Mexico , and eliminate asylum fraud. In cooperative states, President Trump will deputize the National Guard and local law enforcement to assist with rapidly removing illegal alien gang members and criminals.”

After having rescinded some of Trump's policies, Biden has recently shifted to support stricter immigration laws as the system remains overwhelmed. He championed a bipartisan bill to raise the bar for gaining asylum, grant more U.S. resources to process asylum claims and turn away migrants who do not qualify, and empower the president to temporarily shut down the border if migration levels hit certain triggers. (Republicans blocked the bill in the Senate amid lobbying by Trump , who wants to use the border as an election issue.) Biden has also endorsed the U.S. Citizenship Act , which would grant a pathway to citizenship for people in the U.S. illegally if they pass background checks and pay their taxes.

Fundamentally, Trump has aligned with forces who want less immigration into the country, while Biden has embraced the belief that immigrants make the U.S. better.

Health care and prescription drugs

The contrast: Biden wants to extend Affordable Care Act provisions and empower Medicare to negotiate more prescription drugs; Trump has aggressively criticized the ACA but not offered a health care plan.

Biden, who was vice president when the Affordable Care Act passed in 2010, sees it as a cherished achievement to protect and strengthen. The law, also known as "Obamacare," which has extended coverage to 45 million people through subsidies, insurance mandates and a Medicaid expansion, continues to face conservative opposition.

Separately, Biden has touted a provision in his party-line Inflation Reduction Act that empowers Medicare to negotiate lower prices for 10 prescription drugs. He said he wants to boost that to 50 if he is re-elected, with the goal of $200 billion in savings.

Trump spent his four years as president fighting unsuccessfully to repeal and unravel the law — through legislation and executive action and endorsing lawsuits to wipe it out. In November, Trump called for revisiting plans to "terminate" the ACA . He has recently sought to downplay that and insists he only wants to improve the law. But he has not offered a health care plan. Many of his GOP allies in Congress still favor repealing or undoing the ACA, including a budget by the Republican Study Committee, which boasts about 80% of the House GOP conference as members, including Speaker Mike Johnson, of Louisiana.

The contrast: Trump's 2017 tax cuts expire at the end of next year, and he has called for extending them; Biden has called for raising taxes on families earning over $400,000 to fund various priorities.

A series of Trump tax cuts, which Republicans passed on a party-line basis in 2017, expire at the end of 2025. Congress and the winner of the election will decide what happens to them.

In a recent private speech to wealthy donors, Trump s aid his policies include "extending the Trump tax cuts" if he is elected, according to a Trump campaign official. That would preserve lower rates across the income spectrum, with the biggest benefits for top earners.

Biden has attacked that law as a giveaway to the wealthiest Americans, vowing to make "big corporations and the very wealthy finally pay their fair share." He has backed a corporate tax rate hike from 21% to 28% and said that "nobody earning less than $400,000 will pay an additional penny in federal taxes." Biden is also calling for a $3,600-per-child tax cut for families, an $800 average tax break for "front-line workers" and a 25% minimum tax on billionaires, according to a newly released campaign plank.

The expiration of the Trump tax cuts will restore the unlimited federal deduction for state and local taxes, which Republicans had capped at $10,000 in the 2017 law. Republicans broadly support preserving the cap, with some exceptions, while most Democrats want to lift it.

Judges and the Supreme Court

The contrast: Their track records tell a clear story. Trump has picked young conservative judges to serve on the federal bench, while Biden has picked liberals with a focus on professional and personal diversity.

One of the clearest contrasts is what kinds of judges Trump and Biden would pick for lifetime appointments on the federal courts. A simple way for voters to think about it is whether they prefer new judges with the conservative views of Justice Neil Gorsuch, Trump's first Supreme Court pick, or with the liberal views of Justice Ketanji Brown Jackson, Biden's (so far only) high court pick.

As president, Trump nominated young conservative judges who will serve for generations. Biden has focused on finding judges with diverse backgrounds and résumés, including more civil rights lawyers and public defenders.

Perhaps the biggest question is whether a Supreme Court vacancy will open up in the next four years. The presidential election winner and the party that controls the Senate would fill it.

The contrast: Trump is pushing a 10% across-the-board tariff on imports; Biden's White House opposes that, saying it would raise inflation.

Trump, long a skeptic of U.S. trade deals, has proposed to impose a 10% tariff on all imported goods if he returns to the White House. He recently told Fox News that it could be 60% — or potentially “more than that” — on imports of Chinese goods.

Biden opposes that idea. In a memo over the weekend, the White House slammed the idea of "across-the-board tariffs that would raise taxes and prices by $1,500 per American family," without naming Trump; it referred to an estimate by the Center for American Progress, a liberal think tank, that Trump's 10% tax on imports could cost an average American household $1,500 per year.

Biden, instead, has sought to boost domestic manufacturing with major federal investments in semiconductors and electric vehicles.

Foreign policy and NATO

The contrast: Biden favors Ukraine aid, while Trump is skeptical of it; Biden supports NATO and a traditional view of American power, while Trump has criticized NATO and voiced some isolationist views.

The clearest example of the foreign policy differences between the two concerns the fate of Ukraine, which is running low on ammunition and says it needs U.S. assistance to continue holding off Russia’s aggression. Biden is an ardent proponent of helping Ukraine, while Trump has poured cold water on U.S. aid to Ukraine and successfully pressured House Republicans to block it since they took the majority in January 2023.

And that points to a deeper divide: Biden is an outspoken supporter of the NATO alliance as a bulwark against adversaries like Russia and China and of preserving the post-World War II order. Trump has dialed up his criticisms of NATO and aligned with a growing isolationist wing in the U.S. that wants to be less involved in global affairs. Trump recently said that as president, he “would encourage” Russia “to do whatever the hell they want” to member countries who are “delinquent” in their dues.

Sahil Kapur is a senior national political reporter for NBC News.