Sherry F. Colb

Nebraska Passes Law Prohibiting Abortion After Twenty Weeks: Implications for Abortion and Animal Rights

Wednesday, April 28, 2010

Earlier this month, the State of Nebraska passed a law, scheduled to go into effect later this year, prohibiting all abortions after the twentieth week of pregnancy, with some very narrow exceptions. The express reason for selecting twenty weeks as the cut-off point was that some experts say that this is when a fetus begins to experience pain.

The new measure represents a significant development in the evolution of pro-life theory. The line that is drawn, between permissible and impermissible abortion, is sentience. It is not conception, or viability (which was the focus of Roe v. Wade), or "quickening," but sentience, the capacity to suffer and experience pain.

The decision to draw this line – between non-sentience and sentience – as the basis for an abortion prohibition, has important implications for debates about nonhuman animals, and for linking some objectives of the anti-abortion movement with those of the animal rights movement. It also provides an occasion for reflection among those who oppose and those who support a woman's right to terminate her pregnancy.

What Motivated the Law?

Almost a year ago, Dr. George Tiller was murdered in Kansas, while attending a Sunday service at his church. His killer, Scott Roeder, explained his motive as the desire to prevent Dr. Tiller from killing any more babies. Dr. Tiller, unlike most abortion providers in the U.S., specialized in later-term procedures that occur during the second and sometimes third trimesters. One type of later-term abortion, called "dilation and extraction" or "intact dilation and evacuation" (and referred to by opponents as "partial-birth abortion") involves the delivery of part of the fetus while it is still alive.

After Dr. Tiller's death, another doctor, LeRoy Carhart, began performing later-term abortions in Nebraska (though he had previously performed them only as part of Dr. Tiller's practice in Kansas). This decision appeared to have played a role in inspiring Nebraska to pass the twenty-weeks law.

Part of what especially offends many people who object to later-term abortions is the possibility that the fetus is already capable of experiencing the abortion – of consciously suffering the pain of being killed. That concern, which seems to have animated "partial birth abortion" bans, is much more explicit in the new Nebraska statute, named the "Pain Capable Unborn Child Act".

In upholding the federal ban on "partial-birth abortion," in Gonzales v. Carhart, the U.S. Supreme Court majority opinion quotes the following description by an observer of the procedure: "'The baby's little fingers were clasping and unclasping, and his little feet were kicking. Then the doctor stuck the scissors in the back of his head, and the baby's arms jerked out, like a startle reaction, like a flinch, like a baby does when he thinks he is going to fall . . . The doctor opened up the scissors, stuck a high-powered suction tube into the opening, and sucked the baby's brains out. Now the baby went completely limp . . .'"

It is difficult to escape the conclusion that the Justices in the majority found such abortions offensive at least in part because the being who was involved appeared to be sentient and to be experiencing fear and distress during the procedure. The Court acknowledges that the more common, alternative procedure, "dilation and evacuation," left legal by the federal law, involved just as much (or more) cruelty. This fact, however, speaks more to the imprecision of the law than to its underlying logic. As I have argued elsewhere, the "partial-birth abortion" law – and the implicit hierarchy it erects – views the killing of later-term fetuses as categorically worse than the killing of earlier-term fetuses. An important factor that distinguishes earlier from later is sentience.

The Twenty-Weeks Law and Its Implications for Earlier Abortions

The twenty-weeks law removes the imprecision of the "partial birth abortion" law by holding that what matters is not where the fetus is located, relative to the woman. A position that stresses location orientation, after all, is uncomfortably similar to the pro-choice position that it is the fact of pregnancy (i.e., the location of the fetus inside a woman) that distinguishes lawful termination from impermissible killing.

Nor does the Nebraska law turn on viability – a dividing line that also derives, at least arguably – from the fetus's necessary location inside a woman and the woman's biological role in sustaining the fetus's life. As noted above, Roe v. Wade drew the line at viability. The important factor under the Nebraska law is, instead, sentience, which those who passed the law apparently believe occurs at twenty weeks.

One interpretation of the twenty-week line might be to say that it is simply a first step. In reality, perhaps, those who oppose abortion do not accept the notion that terminating a 23-week pregnancy is morally distinct from terminating a three-week pregnancy – they would equally like to criminalize both, but they know that the voting public would balk. Therefore, rather than attempt to ban all abortions – and risk alienating much of the public – it makes strategic sense to seek to ban only the sorts of abortion that people find most disturbing and then, after a victory, to move on and seek to prohibit more abortions.

If this is indeed the strategy of at least some abortion opponents – as seems likely – it may or may not be successful, depending on whether people continue to believe that sentience is an important milestone for the fetus, or whether people instead get into the habit of condemning abortion. Only time will tell.

I will assume here, however, that the twenty-week line is not simply a strategic maneuver on the part of anti-abortion absolutists, intended to seduce others onto a slippery slope from a partial measure to a total ban. Instead, it seems likely that at least some of the people who promoted, and many of the people who supported, the law actually do believe that it addresses a meaningfully distinct kind of action that merits differential treatment.

The necessary implication of the law is that earlier abortions are not as bad, that killing a fetus prior to sentience, assumed by the law to be achieved at twenty weeks (a controversial assumption that I will not here dispute), amounts to a less harmful, less immoral act.

This implication is significant because proponents of the view that "life begins at conception" (LBAC) take a very different position. On their approach, the capacity to suffer is not a morally-relevant fact about a living thing. What matters, instead, is that the living thing is a human organism, however primitive, however undifferentiated, and however incapable of consciousness or pain. Taking this view, a woman who ingests the morning-after pill to prevent a fertilized egg from implanting in her uterus is engaged in killing someone, to the same extent as is the woman who has an abortion the day before she is scheduled to give birth (or, indeed, the woman who stabs her baby to death the day after giving birth to him).

This position is in one respect inherently hostile to animal rights, because the latter posit that the morally-relevant characteristic distinguishing someone from something is the capacity to suffer and have experiences, a capacity that a human embryo lacks but that a later-term fetus and a nonhuman animal both have. Stated differently, the view that killing a zygote is murder because the zygote is human is fundamentally at odds with the view that killing a nonhuman or human animal is murder because both are conscious, suffering beings.

Animal Rights Versus Fetal Rights

Though one cannot possibly do justice to the relationship between the rights of nonhuman animals and the rights of human fetuses in one section of an essay, it is useful here to consider briefly what proponents claim on behalf of each.

Those – including me – who support the rights of nonhuman animals contend that anyone who is capable of experiencing pain and suffering, regardless of whether she is human or not, is entitled to be let alone and not to have humans inflict pain, death, or other harm on her. This means, for example, that all humans, including those who are mentally-disabled and may not have the skills that philosophers view (incorrectly) as distinguishing all humans from all nonhumans (e.g., symbolic language) still have rights not to be killed, not to be tortured (in experiments or otherwise), not to be abused, and not to be confined. Similarly, all sentient beings (including cows, pigs, chickens, turkeys, and fishes) have the right not to be killed, not to be tortured, not to be abused, and not to be confined, regardless of what cognitive skills they do or do not share with human beings.

These rights are not absolute, however, and may be defeated if their exercise poses a threat of harm to another being with rights. One may, in other words, kill a human or nonhuman animal, in self-defense or in defense of others.

The reason we focus on capacities, as I do above, rather than on the presence or absence of human DNA, is that most people feel the need to justify the moral distinctions they draw between different classes of beings, on the basis of some quality that members of the in-group share and that members of the out-group lack. This is why, for example, those who supported race-based (and non-race-based) human slavery made a point of saying that there were traits that distinguished those suited to slavery from those suited to mastery. Aristotle, for example, said of human slavery:

There is no difficulty in answering this question [whether human slavery represents a "violation of nature"], on grounds both of reason and of fact. For that some should rule and others be ruled is a thing not only necessary, but expedient; from the hour of their birth, some are marked out for subjection, others for rule.

That whatever distinguishing traits identified do not in fact justify slavery, of animals or of humans, means only that they fail in their task. That people feel compelled to justify their discriminatory violence, however, is understandable. People do not want to believe that they are acting in an arbitrary and unjust fashion, even – and perhaps especially – when they are.

The LBAC view of fetal rights does not identify uniquely human traits to justify the position. There is no attribute or capacity that a zygote has that would distinguish it from any other individual cell or non-sentient organism. The LBAC view nonetheless holds that a one-celled human zygote – simply because it is a human cell – is the moral equal of a human infant or adult (and the moral superior of all sentient nonhuman life).

It is telling that when asked to defend the notion that a zygote – which has no ability to feel, think, experience, or in any way process the world around it – should properly be described as a "human being," the frequent response is that "it is not a zebra or a dog." In other words, it is the very fact that the human zygote is not a nonhuman animal – one whose capacity to think, feel, and suffer in fact rivals that of a developed human baby no longer in the womb – that purportedly elevates its status and its interest in life.

The new view, expressed in the twenty-weeks statute, by contrast, is that prior to sentience, the fetus might not be entitled to live (or, at least, lacks the same entitlement to live held by its sentient analogue). Once the fetus reaches the age at which sentience is likely (depending on which doctor you ask and on whether you count twenty weeks' gestation from a pregnant woman's last menstrual period, as obstetricians and midwives typically do, or from conception, as anti-abortion advocates generally do), however, the fetus acquires an entitlement to live and not be harmed.

This entitlement, which parallels that of the nonhuman animal in an animal rights framework, is also not absolute. If the fetus threatens to take another's life – that of the woman in whose body he or she lives – then the woman may defend herself against the fetus, just as she could defend herself against any other human or nonhuman threat. Notably, the twenty-week law acknowledges this exception to the fetal right to live, and includes in the exception a threat of substantial physical harm to the woman.

The Connections Between Abortion and Flesh-and-Secretion Eating

Having accepted, as the Nebraska statute does, that sentience (rather than human DNA) represents the important moral line between permissible and impermissible killing, the question becomes whether those who oppose such abortions and those who support nonhuman animal rights can now join hands.

It is possible that these two groups can come together, even if only in a limited capacity. First, those who oppose abortion could begin to take seriously the idea that a sentient being may not be treated as a thing and may not be killed and tortured for patently frivolous reasons. This means that the abortion opponent would, at the very least, herself stop consuming flesh, dairy, and eggs, because the animals involved (even on "organic," "free range" and "local" farms) are all tortured and then killed, and the "justification" is to please someone's palate or fashion sense, both of which are in fact easily pleased without the torture and killing.

Rather than distinguishing between "human" and "not human," then, an understanding that killing becomes a moral harm when the one killed is sentient entails the conclusion that the consumption of animal flesh and secretions is immoral.

Though a consumer might say, "I am not the one doing the torture and the killing," the economics of animal agriculture make evident that the demand for animal flesh and secretions (expressed through purchases) is the reason that the cruelty continues. Like the pregnant woman who delegates her later-term abortion to a provider, the consumer's hands are no "cleaner," no less bloody, than those of the farmer or the slaughterhouse worker.

And second, those who support animal rights would take seriously the obligation on every woman considering a later-term abortion to evaluate her reasons for doing so, and to consider whether they are frivolous, in the way that the desire to ingest animal flesh and bodily secretions is frivolous. My understanding of later-term abortions is that many of them are undertaken because of discovered fetal anomalies or birth defects. Depending on the nature of the anomaly, it could be said that, even after sentience, abortion is a mercy for the fetus (certainly, for example, in the case of a condition like Tay Sachs).

That said, it would be incumbent upon all who take sentience seriously to make every effort to find out about fetal anomalies as early as feasible so that an earlier abortion is selected, if at all possible. Having a post-fetal-sentience abortion because one has not previously gotten around to having it (or because one has taken weeks to decide what to do) is wrong. And the fact that the fetus may not yet be viable, or the fact that there has not yet been a birth (or a "partial birth"), does nothing to mitigate this wrong.

Building Consensus and Challenging Shibboleths

For people within the anti-abortion-rights community who are used to thinking of all abortions as equally wrong, and for people within the pro-right-to-abortion community who are used to thinking of all abortions are equally acceptable, the sentience line poses a challenge. We can all continue to say "abortion is abortion," but most people who think about it deeply conclude that this position is morally unconvincing.

We might instead acknowledge as much, rather than erecting clever arguments for treating either the species of the fetus or the location of the fetus as morally dispositive. An early abortion is different from a later one, and, whether or not the law reflects this difference, our own individual behavior should. The scraping away of an unwanted blastula, the tissue of which has not even differentiated, simply cannot plausibly be characterized as a "murder." Conversely, the dismembering of a sentient fetus without an extremely good reason simply cannot be plausibly be characterized as a mere private matter of concern only to the individual. One can acknowledge that this is true, moreover, even though one does not – as I do not – favor criminalizing later-term abortion.

For people who contend that whatever supposedly distinguishes humans from nonhumans justifies our current practice of consuming animal flesh and secretions and thereby supporting unfathomable torture and killing, the sentience line poses a challenge as well. The challenge is real precisely because most of us share the belief that, whatever the law might be, something significant happens when we encounter a feeling, conscious being who suffers when she is mutilated and killed. And this is true despite the fact that many nonhumans animals, like the sentient fetus and the born infant, cannot speak in symbolic language or engage in the sorts of complex cognition that is said to distinguish "us" from those who allegedly do not count.

If the fetus's "graduation" to sentience is morally significant, as the twenty-weeks law expressly provides, and as most of us understand to be so, it also means that what we have accepted as routine – the slaughter of tens of billions of sentient animals to satisfy cravings that cost us our health, and have the effect of denying the earth's human inhabitants sufficient water and food for survival, as well as, ultimately, a habitable planet – is in fact an atrocity, rather than a libertarian entitlement that is "nobody's business but my own."

A Remaining, Uncomfortable Difference Between the Movements

For those of us who support both abortion rights and animal rights, there is an important fact about animal agriculture that is often overlooked and that bears on any attempt to divide or reconcile the two: the use of violent force to compel nonhuman animals to reproduce.

In the case of "dairy cows," for example, there is first forcible insemination on a "rape rack," followed by the cow experiencing pregnancy and birth. Soon after a birth, the farmer forcibly separates mother and baby, despite their cries and bellows of distress, and the farmer sends the baby (if male) to a veal facility and ultimately to slaughter, while the mother and her female baby are "milked" (i.e., forcibly pumped for their reproductive secretions) and then forcibly impregnated again so that their new babies can be taken away. When her milk productivity drops to an unprofitable degree, the "dairy cow" is then sent to a loud, bloody, terrifying slaughter, along with her "spent" daughters.

This violence signifies the idea that the sentient beings whom we own as slaves may be subjected to hideous suffering to create offspring whom we can then also torture and kill, along with their parents, just because they are not human and we therefore may do with them as we please.

The legal force involved in prohibiting abortion is, of course, different in scope from what happens in animal agriculture. Supporters of fetal rights do not endorse the forcible impregnation of women, nor do they view fetuses as potential slaves. These differences are important.

Nonetheless, a regime in which abortion is prohibited, without a rape exception (which, for example, the Nebraska law does not contain), has the effect of using state force to compel women to carry out forced reproduction, as initiated by a rapist. Furthermore, regardless of how the woman came to experience an unwanted pregnancy, a law prohibiting abortion presumes that society has the right to compel her, by force if necessary, to serve as a living incubator for children. And if a woman cannot – due to her dire economic situation or age – keep her baby, but will have to give him or her up for adoption, then the State, by prohibiting abortion, forces the woman to bond with her growing fetus and to deliver a baby into the world, only to suffer the terrible pain of separation from that baby, as The Girls Who Went Away documents so well.

Though the violence of flesh, dairy, and egg production is greater and more total than the violence of abortion regulation in the U.S., it is useful to consider that what we are forcing upon females, in both cases, is a greater or lesser form of reproductive servitude. From that perspective, a concern for the rights of sentient beings would seem to counsel restraint in passing laws that prohibit abortions, despite an important acknowledgment that terminating the life of any sentient creature – human or nonhuman – is a wrong and that we as individuals – as consumers of both food and reproductive services – must avoid that wrong.

Sherry F. Colb, a FindLaw columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is available on Amazon.

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