Abortion and the Fetal Personhood Fallacy

By David Orentlicher

[cross-posted at HealthLawProfs blog and orentlicher.tumblr.com]

Marco Rubio, Mike Huckabee, and other politicians continue to assert a common fallacy about abortion—because human life begins at conception, fetuses are persons, and abortion must be prohibited. Indeed, Huckabee and Rubio claim that the U.S. Constitution requires such a result.

But they are wrong. And not just because people disagree about the beginning of personhood. The flaw in the Rubio/Huckabee logic was pointed out more than 40 years ago, even before the U.S. Supreme Court recognized a constitutional right to abortion in Roe v. Wade. In “A Defense of Abortion,” Professor Judith Jarvis Thomson correctly observed that even if we assume that personhood begins at conception, it does not follow that abortion must be banned before the fetus is viable. Indeed, as she wrote, a ban on abortion before fetal viability would be inconsistent with basic principles of law.

How is that so? While opponents of abortion typically characterize the procedure as a “killing,” it also can be viewed as a withdrawal of assistance. A pregnant woman seeking an abortion is saying that she no longer wants to give of her body to sustain the life of her fetus. And nowhere in American law do we require some people to give of their bodies to sustain the lives of other persons. We do not even require parents to donate their organs or their bone marrow to save the lives of their children.

If the law insisted that pregnant women continue their pregnancies until delivery, pregnant women would be singled out for a legal responsibility that no one else must assume. And that is something the U.S. Constitution does address. The equal protection clause protects people from being treated differently than other people.

As Thomson also observed, the analysis changes at viability, for then the woman can withdraw her assistance while still allowing the fetus to survive.

Of course, one can argue that the relationship between pregnant women and their fetuses is different from all other human relationships—even parent-child relationships—and so it is permissible to impose greater duties on pregnant women than on other people. But that is a very different argument than is being made by Rubio, Huckabee, and like-minded persons. And it is an argument that has counter-arguments too.


David Orentlicher, MD, JD, is the Judge Jack and Lulu Lehman Professor at UNLV William S. Boyd School of Law, Director of the UNLV Health Law Program, and a Member of the Nevada Assembly.

6 thoughts to “Abortion and the Fetal Personhood Fallacy”

  1. If a woman can abort a fetus because her body is primary in law, she could not abort a female fetus, because the female fetus body is primary to the host mother. Therefore she can only abort male fetuses, which failed equal protection under the law, and civil rights that say no person can act differently to another sex. Please address this argument, and include appropriate constitutional analysis. Thank you!

  2. Although many scholars think Thompson’s argument only works for cases of abortion stemming from rape not for other cases. For some discussion see Bertha Alvarez Manninen, “Rethinking Roe v. Wade: Defending the Abortion Right
    in the Face of Contemporary Opposition,”
    The American Journal of Bioethics, 10, no. 12 (2010): 33- 46and my paper http://ssrn.com/abstract=2596760

  3. Unless the female is a victim of rape she is responsible for creating the fetus. That responsibility due to the choice that lead to pregnancy should override that technicality of the law.

  4. Nowhere in this article does it even *attempt* to support that “Fetal personhood” is a fallacy. It simply asserts that, because that person is dependent on another person, then actively killing that person to stop said dependence is justified. Really the whole use of Personhood is just an invention to try and reach the conclusion one already has decided to reach by any means necessary. Splitting human beings into personhood-having humans and unpersonhood-having-humans is a fabrication that is also not done anywhere in law – at least not in our laws. It’s done in laws of despots and dictators and tyrants.

    That’s a completely different argument. It’s also inconsistent, using the common but very poor use of organ donations. If you fail to donate your organs to a dying person whose life has a chance to be saved by said donation, that is NOT even remotely the same as actively choosing to end that person’s life when they were otherwise expected to survive. (One can also make a good argument that organ donation should be “you’re a donor unless you say you aren’t” rather than “you’re not a donor unless you say you are”, but that’s another deal altogether.)

    The logic used in this article, and by professor is like equating stealing money with deciding not to give to charity. It’s like equating “I don’t want to dive into this water to try and pull that person out of a car” with “I will push that person’s car into the water”.

  5. Wow.

    (Dad brings child in for annual check up)

    Dad says “I would like to withdraw my assistance of this child, can you drill into his skull and scramble is brains please?”

    Doctor says “Why of course sir, I wouldn’t want to legally over burden you with a simple parental standard of care.” Drill hums to life briefly before fading, Doctor continues “We are offering a special consignment program for organ harvesting if you’d like to participate?”

    Dad: “No, that seems a little inhumane to me.”

    Doctor: “Suit yourself.”

    Drill hums back to life.

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