Just when you thought the religious right couldn't get any crazier, with its personhood amendments and its attacks on contraception, here comes the academic left with an even crazier idea: after-birth abortion.
No, I didn't make this up. "Partial-birth abortion" is a term invented by pro-lifers. But "after-birth abortion" is a term invented by two philosophers, Alberto Giubilini and Francesca Minerva. In the Journal of Medical Ethics, they propose:
[W]hen circumstances occur after birth such that they would have justified abortion, what we call after-birth abortion should be permissible. ... [W]e propose to call this practice ‘after-birth abortion', rather than ‘infanticide', to emphasize that the moral status of the individual killed is comparable with that of a fetus ... rather than to that of a child. Therefore, we claim that killing a newborn could be ethically permissible in all the circumstances where abortion would be. Such circumstances include cases where the newborn has the potential to have an (at least) acceptable life, but the well-being of the family is at risk.
Predictably, the article has sparked outrage. Last week, Reps. Joe Pitts, R-Penn., and Chris Smith, R-N.J., denounced it on the House floor. But it isn't pro-lifers who should worry about the Giubilini-Minerva proposal. It's pro-choicers. The case for "after-birth abortion" draws a logical path from common pro-choice assumptions to infanticide. It challenges us, implicitly and explicitly, to explain why, if abortion is permissible, infanticide isn't.
Let's look at some of those assumptions.
1. The moral significance of fetal development is arbitrary. I often hear this argument from pro-choicers in the context of time limits on abortion. In a debate last fall, I drew up a timeline of fetal development, week by week. The response from Ann Furedi, chief executive of the British Pregnancy Advisory Service, was that it would be arbitrary to use any point in that timeline to draw a legal limit on abortion rights. Giubilini and Minerva seem to share this view. "Abortions at an early stage are the best option, for both psychological and physical reasons," they write, conspicuously omitting the idea that abortions at an early stage are better than late ones for moral reasons. "Merely being human is not in itself a reason for ascribing someone a right to life," they write. "Indeed, many humans are not considered subjects of a right to life," such as "spare embryos where research on embryo stem cells is permitted" or "fetuses where abortion is permitted."
Furedi accepts birth as the first logical time limit, though not for reasons of fetal development. (See her comments 44 minutes into this video.) But Giubilini and Minerva push beyond that limit. They note that neural development continues after birth and that the newborn doesn't yet meet their definition of a "person"-"an individual who is capable of attributing to her own existence some (at least) basic value such that being deprived of this existence represents a loss to her." Accordingly, they reason, "The moral status of an infant is equivalent to that of a fetus, that is, neither can be considered a ‘person' in a morally relevant sense."
2. Prior to personhood, human life has no moral claims on us. I've seen this position asserted in countless comment threads by supporters of abortion rights. Giubilini and Minerva add only one further premise to this argument: Personhood doesn't begin until sometime after birth. Once that premise is added, the newborn, like the fetus, becomes fair game. They explain:
[I]n order for a harm to occur, it is necessary that someone is in the condition of experiencing that harm. If a potential person, like a fetus and a newborn, does not become an actual person, like you and us, then there is neither an actual nor a future person who can be harmed, which means that there is no harm at all. ... In these cases, since non-persons have no moral rights to life, there are no reasons for banning after-birth abortions. ... Indeed, however weak the interests of actual people can be, they will always trump the alleged interest of potential people to become actual ones, because this latter interest amounts to zero.
You may find this statement cold, but where's the flaw in its logic? If the neurally unformed fetus has no moral claims, why isn't the same true of the neurally unformed newborn?
3. Any burden on the woman outweighs the value of the child. Giubilini and Minerva note that philosophers such as Peter Singer have presented arguments for neonaticide for many years. Until now, these arguments have focused on what's best for the baby-in the words of recent Dutch guidelines, "infants with a hopeless prognosis who experience what parents and medical experts deem to be unbearable suffering." Giubilini and Minerva merely push this idea one step further, calling their proposal "‘after-birth abortion' rather than ‘euthanasia' because the best interest of the one who dies is not necessarily the primary criterion for the choice."
"Actual people's well-being could be threatened by the new (even if healthy) child requiring energy, money and care which the family might happen to be in short supply of," they observe. Accordingly, "if economical, social or psychological circumstances change such that taking care of the offspring becomes an unbearable burden on someone, then people should be given the chance of not being forced to do something they cannot afford." An after-birth abortion might be warranted by any "interests of actual people (parents, family, society) to pursue their own well-being"-including "the interests of the mother who might suffer psychological distress from giving her child up for adoption."
4. The value of life depends on choice. Pro-choicers don't accept the idea that the path from pregnancy to maternity, being natural, must be followed. They argue that the choice is up to the woman. Some assert that the life within her has no moral status until she chooses to give birth to it.
Again, Giubilini and Minerva simply extend this logic beyond birth. Since the newborn isn't a person yet, its significance continues to hinge on its mother's decision. Neonates "might or might not become particular persons depending on our choice," the authors argue. Until then, the newborn imposes no obligations on us, "because we are not justified in taking it for granted that she will exist as a person in the future. Whether she will exist is exactly what our choice is about."
5. Discovery of a serious defect is grounds for termination. Fetal development can turn tragic at any point. Most people agree that abortion should be permitted when a grave defect is discovered at amniocentesis. In the partial-birth abortion debate, pro-choicers extended this rationale, arguing that abortions in the third trimester should be permitted when horrible defects were identified at that stage. Giubilini and Minerva take this argument to the next level, noting that defects often remain undiscovered until birth:
An examination of 18 European registries reveals that between 2005 and 2009 only the 64% of Down's syndrome cases were diagnosed through prenatal testing. This percentage indicates that, considering only the European areas under examination, about 1700 infants were born with Down's syndrome without parents being aware of it before birth. Once these children are born, there is no choice for the parents but to keep the child, which sometimes is exactly what they would not have done if the disease had been diagnosed before birth.
The authors conclude that "if a disease has not been detected during the pregnancy, if something went wrong during the delivery, or if economical, social or psychological circumstances change such that taking care of the offspring becomes an unbearable burden on someone, then people should be given the chance of not being forced to do something they cannot afford." And it isn't clear where the line against infanticide would be drawn. "We do not put forward any claim about the moment at which after-birth abortion would no longer be permissible," Giubilini and Minerva write. They doubt that "more than a few days would be necessary for doctors to detect any abnormality in the child." But critics are already noting that many defects are discovered later.
In sum, the authors argue:
If criteria such as the costs (social, psychological, economic) for the potential parents are good enough reasons for having an abortion even when the fetus is healthy, if the moral status of the newborn is the same as that of the infant and if neither has any moral value by virtue of being a potential person, then the same reasons which justify abortion should also justify the killing of the potential person when it is at the stage of a newborn.
I don't buy this argument, in part because I agree with Furedi that something profound changes at birth: The woman's bodily autonomy is no longer at stake. But I also think that the value of the unborn human increases throughout its development. Furedi rejects that view, and her rejection doesn't stop at birth. As she explained in our debate last fall, "There is nothing magical about passing through the birth canal that transforms it from a fetus into a person."
The challenge posed to Furedi and other pro-choice absolutists by "after-birth abortion" is this: How do they answer the argument, advanced by Giubilini and Minerva, that any maternal interest, such as the burden of raising a gravely defective newborn, trumps the value of that freshly delivered non-person? What value does the newborn have? At what point did it acquire that value? And why should the law step in to protect that value against the judgment of a woman and her doctor?