Chapter 2: Potentiality and Viability
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CHAPTER 2 Potentiality and Viability THIS CHAPTER EXAMINES three basic approaches to the issue of legalizing abortion. One approach maintains that abortions should be restricted severely, or prohibited completely, because the unborn is, from the moment of fertilization, a (human) person with the same right to life as every other person. A second approach justifies severe restrictions, but views the unborn as a potential (human) person. Disentangling this approach (potential personhood) from the first approach (actual personhood) is a major goal of the chapter. Viability is discussed because viability is sometimes taken to mark the distinction between potential and actual personhood, and because the Supreme Court employs the concept of viability in some of its major decisions regarding abortion. The third basic approach separates the issue of abortion's legality from that of the unborn's humanity. There are two general varieties. According to one, abortion should be restricted significantly even if the unborn are not regarded as (human) persons. Restrictions are justified on this view because abortion's availability has adverse consequences for society in general or for identifiable individuals who are unproblematically persons. The other variety separates the status of abortion from that of the unborn by arguing to the opposite effect. Even if the unborn are regarded as persons, it is argued, abortions should not be restricted because restrictions constitute unfair burdens on women. Again, the consequences for others, rather than the rights of the unborn, are featured . In rejecting all varieties of this approach, I maintain in this chapter that the personhood of the unborn, not the consequences for others, is central to the major issue: Should state legislatures be permitted 50 Potentiality and Viability 51 to restrict severely, or even prohibit completely, women's access to abortion? Considerations regarding the personhood of the unborn have influenced Supreme Court decisions beginning with Roe v. Wade. This chapter first discusses that case and then subsequent Supreme Court decisions that concern the personhood of the unborn. Chapters 7 and 8 relate abortion rights to the permissibility of state regulations concerning such matters as health care, spousal consent (for married women), parental consent (for minors), and public funding (for the poor). Before beginning, a word about terminology is needed. Following some medical usage, I use three terms for the unborn. I call it a zygote from the time of fertilization to that of implantation on the uterine wall, about a week later. I call it an embryo during the following six or seven weeks, and then a fetus (until it is born). The Roe v. Wade Decision Justice Blackmum, writing for the Court in Roe v. Wade, declared that a woman has a fundamental right to decide "whether or not to terminate her pregnancy. "1 Although fundamental rights are not absolute and may be limited by the state (see introductory chapter), Blackmun qualified this limitation: "Where certain 'fundamental rights' are involved, the Court has held that regulation limiting these rights may be justified only by a 'compelling state interest,' and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake."2 Blackmun went on to specify the nature of the compelling state interests relevant to abortion and the limits that these interests place on a woman's right to terminate her pregnancy. He divided pregnancy into three roughly equal time segments, or trimesters, and declared it unconstitutional for a state to regulate abortion during the first of those trimesters . "The attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated."3 During the first trimester, then, the Court recognized no compelling state interests sufficient to override or limit the right to have an abortion. Starting with the second trimester, however, "a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the pre:servation and protection of maternal health."4 The protection of people's health is a legitimate public purpose. The greater the 52 Chapter 2 jeopardy to people's health in any situation, the greater the need for protective state regulations. The Court maintained in Roe that during the first trimester of pregnancy an abortion does not jeopardize a woman's health sufficiently to justify limiting abortion rights. But in the second trimester the abortion procedure involves greater risks to maternal health. The Court maintained that the jeopardy is so great as to create the kind of compelling...