I AM HONORED TO BE contributing to this volume of essays honoring my close friend and long-time colleague, J. P. Moreland. He has had a deep interest in connecting his academic specialties of metaphysics and philosophy of mind to issues in bioethics. We wrote together making this connection explicit in our 2000 book, Body and Soul: Human Nature and the Crisis in Ethics,1 where he laid the metaphysical framework and I provided the “shoe leather” as it related to bioethics. We applied a substance view of a human person to abortion, embryo research, reproductive and genetic technologies, and physician assisted suicide. Throughout our work on that book, he was insistent that it not be simply a philosophical treatise divorced from application to the real life issues that are profoundly affected by our views on metaphysics and philosophy of mind. He was concerned to make a contribution to both the broad framework in which to view the human person, but also cared deeply about how it worked out at the bedside and other places where decisions about life and death were being made. Though he has not himself done serious work in bioethics for some time, he has relied on others to take his framework for understanding the human person and make the necessary application to the various arenas of bioethics. But his passion to see his work affect these pressing moral and personal issues has not wavered over the years. I count it a privilege to have been and continue to be his co-laborer in this important intersection of philosophy and bioethics. In this paper, I want to connect the bioethical issues and make a case for a broad pro-life view.
This year (2013) marks the 40th anniversary of the Roe v. Wade decision that legalized abortion and had a profound impact on bioethics in general and the view of the human person in particular. In the forty years since the Roe v. Wade decision was handed down, the world of bioethics has undergone enormous changes. Since 1973, medical technology has opened up new vistas unimagined at that time and created new ethical dilemmas both for physicians at the bedside and legislators making public policy. But the decision also profoundly changed how the human person was viewed in the culture, and reflects an erosion of respect for the dignity and sanctity of life.
When the Roe decision was delivered and law protected abortion on demand, few people imagined the impact that the Court’s decision would have on other aspects of bioethics. In fact, only a handful of pro-life advocates were bold enough to predict that it would radically alter the way in which society viewed prenatal life. Some even predicted that the decision would come back to affect the way society views euthanasia, a claim widely dismissed at the time as extreme pro-life rhetoric. Yet, forty years later, those who predicted such things are able to say, “I told you so.” The Roe decision profoundly changed the landscape of bioethics in the United States. Its impact is still felt today and the background of legal abortion has changed the way society thinks about the moral status of the human person. It is clear that the change in the law left an indelible pedagogical impression on society and the way we think about ethics at the edges of life. I will suggest that all of the major areas of bioethics were affected: partial-birth abortions, genetic testing, in vitro fertilization, embryo and stem cell research, and physician assisted suicide. These all reflect a view of the human person that leaves the unborn and the elderly vulnerable to having their right to life compromised.
The conventional wisdom in the popular culture today is that the Roe decision legalized abortion up to the point of viability, which in 1973 was roughly at the end of the second trimester. In fact, if you ask most people on the street today at what point abortion is legal most will reply that it is up to the point of viability. Roe originally and arbitrarily divided up pregnancy into three trimesters and ruled that the state had a different interest in each one. In the first trimester, the right to abortion was virtually unlimited. Women could procure abortions for any reason and at any time. In the second trimester, when performing abortions became a bit more complicated, a woman’s right to choose abortion could be limited in order to protect her safety. For example, the state could mandate that only licensed physicians at licensed medical facilities could perform abortions. In the third trimester, once viability had been reached, the state had a critical interest in the preservation of life, which could only be overridden by significant threats to the woman’s life or health. Thus abortion was still available, but the Court’s design was to make late term abortions more difficult to obtain than those in the first trimester. The burden was on the pregnant woman to show that abortion was necessary to safeguard her life or health. In the light of Roe, one might legitimately ask how it could be that partial-birth abortions are occurring as frequently as they are.
Roe, however, was not the only abortion related Court decision handed down in January of 1973. In a companion case, Doe v. Bolton, the Court clarified the definition of a woman’s health that could be jeopardized sufficiently to warrant a third trimester abortion. The Court ruled that a woman’s health included factors that were much broader than simply her medical or physical health. They included her emotional and psychological health and what the court referred to as “familial” health. That is, the impact of having another child on the pregnant woman’s family was considered a part of her health, and could include the woman’s financial condition and even the health of the unborn child. That is, if the child was genetically handicapped, the impact on the family of raising such a challenged child could be considered in the assessment of the woman’s health. The Court put it like this: “We agree that the medical judgment (about the woman’s life or health being jeopardized) may be exercised in light of all factors—physical, emotional, psychological, familial, and the woman’s age, relevant to the well-being of the patient. All these factors may relate to health. This allows the physician the room he needs to make his best medical judgment.”2
In reality, the definition of health had been broadened and the decision so privatized that the result was predictable—abortion virtually on demand for virtually any reason, throughout the entire nine months of pregnancy. Roe and Doe together legalized abortion on demand in all three trimesters of pregnancy, thus setting the stage for partial-birth abortions, which occur today largely for the same reasons that first trimester abortion do—as birth control measures of last resort. Had Roe alone been passed in January 1973, one could make a better case that abortion was legal up until the point of viability. But in concert with Doe, even late term abortions are legal, for virtually any reason. Thus, while Roe in itself limited late term abortions to those of necessity only, as broadened by Doe, it left a legacy that included the death of virtually full-term unborn children by means that, if the public were fully aware, would shock most. Under these Court decisions, life and death for the unborn third trimester child is literally a matter of inches, since once the child is fully out of the womb, ending the child’s life is no longer abortion, but infanticide. Further, support for infanticide is growing. Take for example the widely publicized article in the well-respected Journal of Medical Ethics, the authors argue that “what we call ‘after birth abortion’ should be permissible in all cases where abortion is, including cases where the newborn is not disabled.”3
In the past twenty-five years, new treatments for infertility have enabled couples who are struggling to have children to conceive the child of their dreams. Treatments such as in vitro fertilization (IVF) have revolutionized the way infertility is treated and have given hope to infertile couples. Many other treatments for infertility involve a heightened risk of multiple pregnancies. For example, techniques as simple as intrauterine insemination (IUI), in which the husband’s sperm is given technological assistance in reaching the egg in his wife’s body, is now sometimes done in conjunction with the same high-powered fertility drugs used with IVF that enable a woman to release multiple eggs in a single cycle.
Some of the most celebrated multiple births have come as a result of IUI and fertility drugs. When IVF is performed, the woman is given the same drugs to enable her to release as many eggs as possible in a single cycle. The eggs are then harvested, fertilized in vitro, and then normally 3–4 embryos are implanted in the woman’s uterus, though in some cases, more embryos are implanted. The remainder of the embryos, if any are left over, are stored by cryopreservation should the first round of implants fail and the couple have need for additional embryos to be implanted.
In both IUI and IVF, there is the risk that the couple will become pregnant with more unborn children than they either can safely carry or wish to have. This risk is considered a necessary part of the process, since the most expensive part of the process is harvesting and fertilizing the eggs. Infertility physicians implant 3–4 embryos in IVF to give the couple the best chance at achieving a single pregnancy. But with IUI it is more difficult to say how many pregnancies are possible, since it is unknown prior to insemination how many eggs the woman has released. Thus, the risk of multiple pregnancies is actually greater with IUI in conjunction with fertility drugs than it is with IVF.
For some couples who have heard and read the accounts of couples who give birth to even larger numbers of children (for example, anywhere from 5–8 children), the risk of multiple pregnancies can be a daunting obstacle for those who want to utilize these technologies. But infertility clinics have managed this difficulty by offering a referral to selective termination. That is, if the couple achieves more pregnancies than they are comfortable with, for whatever the reason, the clinic will refer them to specialty abortion clinics that will reduce the number of pregnancies to the number the couple desires. Every couple at risk for multiple pregnancies is presented with the option of a referral for selective termination. The conventional wisdom is that clinics refer couples for selective termination in those cases in which they become pregnant with more pregnancies than the woman can safely carry, to avoid endangering her life or health, or the life or health of the unborn children. For example, in most cases of quadruplets or more, they must be delivered prematurely, and as a result have many medical problems due to insufficient development prior to birth. That presents a difficult moral dilemma for a couple when that is indeed the case. But the little known fact in this area is that every couple who utilizes a procedure that might result in multiple pregnancies is given the option of a selective termination referral, for any reason they choose. For example, if a couple gets pregnant with triplets through IVF, but they only desire a single child, they can have their number of pregnancies reduced from three to one.
The ease with which infertility clinics give selective termination referrals and the availability of selective termination for any reason (in reality, the couple does not even have to give a reason) is part of the legacy of abortion that compromises the moral status of embryos as well as fetuses. With abortion being legal on demand, it is a simple matter to refer couples for this procedure. Abortion has not only become the birth control of last resort, but as a result of its legality and social acceptance, selective termination has become the safety net under the technologies of IVF and IUI. The callousness with which couples can do selective termination, when going to such lengths to conceive children, simply because they don’t like the result of the procedure, is a very disturbing and problematic legacy of abortion. Even for someone who is pro-choice, the decision to take life deliberately created in the lab at great length and expense, should strike a person as problematic, and illustrates the callous disregard for unborn life.
Less direct a connection, but one worth mentioning, is the routine discarding of leftover embryos after a couple is finished with IVF. In order to minimize the expense of harvesting eggs, couples routinely fertilize all the eggs that are harvested, but only implant 3–4. That usually leaves some embryos left over for use at a later time should the couple not achieve a pregnancy. The embryos are placed in storage and thawed out to be implanted should the couple so desire. When the couple is finished with the process, usually as a result of becoming pregnant and achieving their goal, they do not have further use for the embryos. Generally, they are discarded, though at times, they are donated to another infertile couple or donated to research facilities. Embryos are widely regarded as “clumps of cells,” or “a bag of marbles,” yet the couples who have had children successfully through IVF have intuitions that tell them something quite different. They are often the ones who end up not making any decision on the disposition of leftover embryos, leaving them in storage indefinitely because of the difficulty in making the decision to discard them.
With the completion of the first draft of the Human Genome Project (HGP) in the early 2000s, we now have at our disposal much clearer information about the various genetic factors that contribute to a wide variety of diseases. Though gene therapy is still in the experimental stage and has had some significant steps backward in the past few years, the HGP has provided an extraordinary amount of information about the risks for disease that people face due to their genetic makeup. There are an increasing variety of diagnostic tests for people who might be at risk. For example, women who have a family history of breast cancer now have genetic diagnostic testing available to pinpoint the genetic factors that increase their risk of developing breast cancer. These tests do not generally establish a cause and effect link with a disease; they only identify risk factors for the person. Single gene diseases where there is a causal link between the genetic factor and the development of the disease constitute an exception to this, as for example in the cases of Huntington’s disease, cystic fibrosis, and Tay-Sachs disease. Of course, some of the diseases are treatable and some are not. In the former case, there is substantial benefit to knowing one’s genetic risk factors.
These diagnostic tests are also available to pregnant women to test their unborn children for a variety of genetic anomalies. These are performed largely through amniocentesis, a procedure in which the unborn child’s cells are obtained through the mother’s amniotic fluid and then subject to genetic testing. In this area the moral status of a human person has been further compromised. Though claiming objectivity, the genetic counselors and physicians who test children in the womb often carry forward an assumption that is premised on the availability of abortion. That is, if the couple receives bad news back from their genetic testing, it is widely assumed that the couple will end the pregnancy, sparing the child a difficult life and the parents the task of raising a child with what could be severe challenges. The standard practice in the genetic testing and genetic counseling industry is to present the abortion alternative to every couple who receives bad news from testing. This abortion assumption can actually put the burden on the couple to justify why they are keeping the pregnancy when carrying a genetically anomalous child. Of course, this rationale for abortion in the case of genetic testing assumes a view that the unborn child is less than a full person. For only if one assumes that premise can the argument from handicap make any sense. That is, unless it is assumed that the unborn child is not a person, then there is no morally relevant difference between abortion for genetic problems and infanticide for genetic problems.
In order to avoid the necessity of abortion to deal with genetic anomalies, couples have another option, that of preimplantation genetic diagnosis (PGD). In this procedure, couples who are at risk for a specific genetic problem can conceive using IVF, screen the embryos prior to implantation, and then implant only the embryos that are free from the genetic anomaly. The rest, that is, the genetically defective embryos, are discarded, similar to embryos that are left over after infertility treatments. This is the standard of practice with PGD. For those who hold that embryos are persons, there is no morally relevant difference between abortion for genetic problems and discarding genetically defective embryos. By extension, embryos would have had even fewer rights, since they are not even implanted and exist outside the womb. It would seem that the desensitizing impact of society’s view of fetuses was quite easily applied to ex-utero embryos. Thus the standard of practice in both infertility and genetic testing could include discarding embryos at least as easily, if not more so, than abortion of already implanted and developing unborn children.
With the advent of technology that can isolate embryonic stem cells, embryo research has gained new significance and greater public prominence. With all the hope for medical progress from stem cell research, the source of these stem cells was easily pushed into the background. Originally, the source of stem cells was to be the embryos left over from infertility treatments, analogous to using fetal tissue from induced abortions. Proponents reasoned that since the embryos were going to be discarded, why not put them to good use?
The debate over the use of embryonic stem cells indicates that the legacy of abortion and the resultant low view of fetuses and embryos contributed to the ease with which the source of these stem cells was viewed as irrelevant. Concerns about the destruction of human life in order to harvest stem cells were dismissed as “symbolic.” In other cases, views that upheld the moral status of embryos were minimized because of their religious roots, even though opponents had sought to make the argument against stem cell research on the basis of publicly accessible reasons. In the public debate, for proponents the potential for medical progress trumped any concerns about the destruction of embryos.
This low view of embryos, as is the case in IVF and genetic testing, is an outgrowth of society’s low view of a human person at the beginning of life. If it is permissible to end a pregnancy for virtually any reason, including the health of the mother, then by extension, ending the lives of ex-utero embryos, particularly if doing so could potentially save the lives of others, must surely be permissible.
It is more difficult to identify the legacy of Roe when one moves from the beginning edge to the end. But even at the end of life in the debate over physician assisted suicide (PAS), the impact of the abortion decision has been felt. In 1973, opponents of abortion predicted that the arguments used to justify abortion would someday be used to justify various forms of euthanasia. It wasn’t until 1996 that such a prediction was realized, when the Ninth Circuit Court of Appeals explicitly used the abortion decisions as the basis for its ruling that laws prohibiting PAS are unconstitutional.4 This ruling was overturned upon appeal to the United States Supreme Court in 1997.5
This is the example of the logic of abortion coming full circle and affecting the end of life. In the decision issued by the Court of Appeals, they relied heavily on the abortion precedent. The Court of Appeals put it like this:
In deciding right-to-die cases, we are guided by the [Supreme] Court’s approach to the abortion cases. Casey in particular provides a powerful precedent, for in that case the Court had the opportunity to evaluate its past decisions and to determine whether to adhere to its original judgment … the fundamental message of that case lies in its statements regarding the type of issue that confronts us here: “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.” (Casey, 112 S. Ct. 2791, at 1807 [sic], 1992)6
The Court of Appeals, in their view, extended the notion of liberty and privacy to include assistance in dying in the same way that they read the Supreme Court in their extension of liberty and privacy to apply to abortion decisions. Further, the Court of Appeals goes on to admit that they found the Court’s reasoning “highly instructive” and “almost prescriptive” for deciding the right to die cases. The Court put it in this way:
Like the decision of whether or not to have an abortion, the decision how and when to die is one of “the most intimate and personal choices a person may make in a lifetime, a choice central to personal dignity and autonomy.” A competent terminally ill adult, having lived nearly the full measure of his life, has a strong liberty interest in choosing a dignified and human death rather than being reduced at the end of his existence to a childlike state of helplessness, diapered, sedated, incontinent. How a person dies not only determines the nature of the final period of his existence, but in many cases, the enduring memories held by those who love him.7
What is often assumed is that the moral status of the terminally ill person cannot be the same as a healthy adult. This reflects a functional view of a person that stands at odds with the substance view defended by J. P. throughout his work. But what seems clear is the impact our views of a person at the beginning of life are to our views of a person at the end of life. Both seem to be examples of viewing a person not as something they are but determined by something they can or cannot do. Even though the Supreme Court overturned this decision, in popular culture and among many in the bioethics community, the notion that abortion and PAS are analogous is still a powerful one.
A big part of the legacy of J. P.’s work revolves around the notion of the human person. All the above-mentioned areas of bioethics assume certain answers to this fundamental question.
To be clear, the designation of a “person” has less to do with science and more to do with a being’s moral status, implying rights and protections that follow from being a person. What science can tell us is what a human being is—that from conception forward, the union of egg and sperm is a living and separate human entity with its own unique genetic code (except in the case of identical twins). We tend to regard embryos like this. If embryos were neither living nor human, then researchers and health clinics would not be nearly so interested in their stem cells. Of course, embryos are not fully mature human beings. But neither are post-viability fetuses, nor newborns, nor toddlers, nor preschoolers … etc. But from the moment of conception, the embryo has all it needs to mature, if given nutrients and shelter that the womb normally provides. Our use of language here is important. Embryos don’t become fetuses; fetuses don’t become newborns. Nor do embryos develop into fetuses and fetuses into newborns. This terminology suggests that in the process they actually become something different than they already are. But that’s not true. Embryos mature into fetuses, which mature into newborns, which mature into toddlers … etc.
The substance view of a person, which J. P. has championed for some time, begins with our commonsense view that a person is something we are, not something we do. In addition, a substance view emphasizes that there is something fundamental about persons that enables them to have the same identity through time and change. Our continuity of personal identity through time and change is grounded in an immaterial essence. This is also known as an essential view of a person, or an endowment view of a person.8
What underscores the substance view of a person is the way we view moral responsibility and criminal justice. If someone commits a crime, and it takes years to capture the person and bring him or her to justice, we assume that the person standing before the court is the same person who committed the crime (unless it’s a case of mistaken identity). If the person argued that they had undergone physical changes, such as loss of hair, cosmetic surgery, even amputation, and as a result, was not the same person who had committed the crime, they would likely be laughed out of court, and justifiably so. The reason is that the court operates on a substance view of a person—that there is a continuity of personal identity that endures through time and change. But if human persons are nothing more than a collection of physical parts and properties, then there is no adequate basis for recognizing this continuity of identity. In fact, the person in court could argue that he or she has undergone significant changes, such as recycling through all their cells (which we all do every seven years) and make a plausible case that they are not the same entity that committed the crime. But our intuition about persons tells us something different—that a person is what we are, not what we do.
Again based on our commonsense view of a human being, every human person is the result of a continual process of growth and development that begins at conception—not much debate about that, though I would use the term “maturity” instead of “development” here. Further, there is no morally or ontologically relevant break in the process from conception to birth. All points along the continuum from conception to birth are arbitrary points of delineation that have no necessary connection to the moral and ontological status of a person.
Some will agree that these “decisive moments” are not so decisive when it comes to what constitutes a person. They argue that the indicators of personhood include things like self-consciousness, self-awareness, awareness of one’s environment, sentience (the ability to experience sensations such as pain), and some capacity for relationships. On this type of functional view, the unborn, the seriously mentally impaired, those in a vegetative state, and others would be human beings, but not persons, and would not have the rights of persons. Most who hold to after birth abortion/infanticide base it on some sort of functional view of a person.
This functional view of a person suffers from at least two significant shortcomings. First, there are times in the lives of most of us when we don’t meet the functional criteria for being a person. Take someone who is in a reversible coma, or more commonly, who is under general anesthesia. If the latter is working properly, the person has lost all functional criteria, albeit temporarily. But as soon as you make the counter argument that it’s temporary, you’ve admitted that during that temporary time period, there’s something else besides those functions, that grounds that person’s status, and corresponding rights. Since they don’t have those functions, what keeps them a person sounds a lot like an essence.
A further weakness of this view is that it leads to a very counterintuitive notion that being a person is a matter of degree. If personhood is degreed, so are the rights and protectability of the person. For example, a person in a vegetative state, or at the end of a terminal illness who has a lower level of functioning would have fewer rights to life, and thus laws authorizing removing of treatments from them or actually putting them to death, with or without their consent, would be plausible. And that’s the real problem. You can’t have personhood being degreed and have equal rights at the same time. To have a robust commitment to equal rights, it’s critical to safeguard the inherent and equal dignity of all human beings regardless of their ability to perform certain functions deemed critical for persons to perform.
I commend J. P. for his providing a solid, well thought-out metaphysical framework for defending a substance view of a human person. I’m grateful for his contribution in undergirding bioethics, especially the pro-life version with this important philosophical grounding.
1. J. P. Moreland & Scott Rae, Body and Soul: Human Nature and the Crisis in Ethics (Downers Grove, IL: InterVarsity Press, 2000).
2. Doe v. Bolton, 93 S. Ct. 739 (1973) at 747.
3. Alberto Giubilini and Francesca Minerva, “After-Birth Abortion: Why Should the Baby Live?” Journal of Medical Ethics (forthcoming).
4. Compassion in Dying v. Washington, 49 F. 3d 790 (1996).
5. Washington v. Glucksberg, 117 S. Ct. 2258 (1997).
6. Compassion in Dying v. Washington, 79 F.3d 790 (1996), cited in Michael Uhlmann, Last Rights: Assisted Suicide and Euthanasia Debated (Grand Rapids, MI: Eerdmans, 1998), 487.
7. Washington v. Glucksberg, cited in Michael Uhlmann, Last Rights: Assisted Suicide and Euthanasia Debated, 493−94.
8. See for example, Christopher Kaczor, The Ethics of Abortion: Women’s Rights, Human Life, and the Question of Justice (New York: Routledge, 2011).