Most people are neither completely pro-choice nor completely pro-life. They don’t think abortion is always wrong or should always be illegal, but they also don’t think a woman has either the ethical or legal right to have an abortion under any circumstances. They have some kind of middle ground position, often thinking abortion justified early on in pregnancy but opposing it as the fetus becomes more developed. This is why in most European countries you’ll see abortion on request permitted up to a certain point – 20 or 16 or 12 weeks – and then generally restricted after.

Given all this, it’s a strange feature of the abortion debate is that you very rarely see the middle-ground gradualist pro-choice people get exercised about late term abortions. They don’t expend any significant effort in actually opposing them, and they’re reluctant to even criticise them much. Politicians who support late abortions get treated as partial allies, while consistently pro-life ones are generally regarded as firm opponents by gradualist pro-choicers. Active, campaigning opposition to late abortion is almost always led by people who oppose all abortion.

An exception to this general trend is the pro-choice philosopher Flo Bacus, who blogs at Moral Law Within.

My contention is that, before the fetus is sentient, abortion is completely and utterly morally neutral, as morally neutral as the decision of whether to get pregnant or not in the first place. But nothing magical happens at the moment of birth; almost certainly, either newborn babies aren’t sentient, or else sufficiently developed fetuses are sentient. Thus, a sufficiently developed fetus is morally equivalent to a newborn infant. I agree with the common judgment that killing a newborn infant without sufficient reason is murder; thus, a sufficiently late abortion done without sufficient reason is murder.

It goes without saying that I don’t think the point of sentience is the point at which a fetus gains the right not to be killed. I’ve had some good exchanges with Flo about this before, as a result of which she modified the basis of her position somewhat. I owe her a proper response to the latest version of her view. Forthcoming! (For an idea of some of what I’ll be arguing, check out this comment on Flo’s post from James Reilly – no relation).

But given what Flo does believe about the point during pregnancy at which the fetus gains personhood, I think her position is consistent and admirable. One of the things I find most admirable about it is that she treats late abortion with the seriousness that anyone ought to treat the legal killing of an innocent person. It’s not a regrettable thing, it’s a moral emergency.

A lot of gradualist pro-choice people don’t have the same moral urgency. My question is: why not?

People are, after all, really really anti-infanticide. If you find it mysterious why pro-lifers care so much about abortion, this is the reason! You’d expect to find a similar strength of opposition to late abortion among the moderately pro-choice.

As Flo points out in her piece, a lot of the stated reasons gradualists give for their lack of this opposition are not very good. For example, take the worries that restrictions on late abortions might lead to restrictions on earlier ones, or that over-regulations might lead to some justified late abortions being blocked.

[These objections] usually goes in one of two ways. First, it is claimed that any limitations at all to abortion will be exploited by conservatives in order to prevent abortion in cases that are justified. Second, it’s claimed that, irrespective of such exploitation, regulations imposed inherently have some bad effects, e.g. too-strict rules or fear of punishment preventing justified or medically necessary abortions.

At the risk of being a bit catty, I would ask my detractors for other cases where they think killing an innocent person should be legal for reasons like these. Should it be legal to kill a terminally ill parent under your care, at your discretion? Plausibly, opponents of euthanasia will do whatever they can to exploit laws and prevent even justified cases of euthanasia, and also plausibly, any regulations at all will be a burden that prevents some justified cases. Perhaps some factor makes these cases disanalogous. But suppose they were analogous; would you seriously want to legalize killing innocent people for reasons like these?


Bodily rights

You might think that the obvious answer is that this isn’t about fetal personhood at all, but bodily rights. People who are pro-choice on bodily rights grounds think that a woman’s bodily autonomy justifies abortion even if the fetus is a person. Even if moderate pro-choice people don’t think a woman’s bodily rights are enough to actually justify late abortion, perhaps they nonetheless weigh in the balance, making it less bad than infanticide would be. Flo isn’t convinced by bodily rights arguments in general (she gives a great run down of the Conjoined Twins Argument in her post) but perhaps this explains why other gradualists don’t share her strong opposition to late abortion.


We’re always going on about bodily rights here at Minimise, and we maintain that they are a massively neglected part of the abortion debate. But I don’t think bodily rights are doing much work in explaining the soft-pedaled reaction to late abortion from most gradualists. That’s because bodily rights aren’t rights to kill the fetus, just to get it out of the woman’s body. But the further on a pregnancy is, the easier it is for a woman to exercise her bodily rights in a way that doesn’t lead to the death of the fetus, via early delivery or C-Section. Both natural birth and C-sections are more physically demanding than most forms of late abortion, but this difference is again not the kind of thing that would justify killing an innocent person.

Some of the reason is probably plain old political polarisation. In the same way that pro-lifers can convince themselves that Donald Trump is in some fundamental way On Their Side even when he’s championing access to the abortion pill, moderately pro-choice people can see Governor Maura Healy signing legislation to make Massachusetts the tenth (!) US state to have no gestational limit on abortion and see it as misguided moves from a person who is fundamentally of the same tribe, the tribe that cares about women’s rights, health, dignity.

I think another part of it is just that you can’t see the unborn when they’re in the womb. The whole abortion procedure can take place without anyone except the doctors performing it actually seeing the fetus or their body. There might be no intrinsic difference between late fetuses and born babies, but when it comes to moral rights out of sight is often out of mind. 

Finally, I sometimes wonder if many gradualists don’t actually think the beginning of actual consciousness is as significant as Flo Bacus does. This is getting into stuff that I want to address properly in a future post, but I think an implication of her view is that a baby born in a coma who had never been conscious yet (but who doctors expect to come out of the coma in a few weeks) would have zero moral status and no right to life. I think this is a view that most pro-choice gradualists would be very reluctant to embrace. We’re back to the troublesome fact for pro-choice theories of personhood that there is no property that varies as the fetus develops during pregnancy that doesn’t also vary in certain circumstances after pregnancy ends. I wonder if softer opposition to late abortion is a way of fudging things a bit, not resting too much significance on a difference that the gradualists aren’t really sure about.

These are all just guesses. The truth is that I don’t actually know why gradualists aren’t in general more strongly opposed to late abortion. But it’s the kind of thing I’d love to get an answer to.

Ben