The House of Representatives voted May 13, 2015, to pass the Pain-Capable Unborn Child Protection Act.
Republicans largely supported and Democrats largely opposed the measure, which would prohibit many late-term (i.e., 20th week or later) abortions. The bill allows some exceptions, such as for rape victims, so long as they get medical care or counseling before having the abortion.
The bill doesn't have much chance of making it through the Senate, and would almost certainly be vetoed by President Barack Obama if it did. White House Press Secretary Josh Earnest summed up Obama's position:
We hear Republicans a lot – particularly in their discussions about health care – articulating that it's a priority for them to keep the government out of the doctor's office. But, in fact, this piece of legislation would actually, ironically enough, actually insert the government right between a woman and her doctor. And, so not only is this entirely inconsistent with the argument that we hear Republicans make on a range of other issues, it is, it’s disgraceful that House Republicans would be considering a party-line vote on a piece of legislation that would continue to impose even additional harsh burdens on survivors of sexual assault, rape and incest.
Conservatives reply that they don't oppose the government coming between a murderer and their victim, which gets us to a key part of the abortion debate: do the unborn have rights, or moral standing?
In a court of law, you can't insert yourself into a legal dispute unless you have legal standing. That is, you have to have a stake or some interest in the court's decision. Similarly, moral standing means having rights or interests that others have to take into account.
Moral standing (or moral status) pops up in several controversies, including abortion, euthanasia, and animal welfare, and has been debated for centuries. The argument that people have equal moral standing regardless of race or gender led to the abolition of slavery and the codifying women's rights. Medieval European thinkers even debated whether the mythical dog-headed people should be evangelized.
Anti-abortion demonstrators hold signs during a Priests for Life protest outside the US Court of Appeals for the DC Circuit Court as the Court hears the oral arguments in the "Priests for Life v. US Department of Health and Human Services (HHS)" case in Washington, DC, on May 8, 2014. (SAUL LOEB/AFP/Getty Images)
So, what is the moral standing of an unborn fetus? Proponents of the House bill essentially argue that, if a 20-week fetus can feel pain, then it has moral standing and can't be killed casually. This is a different benchmark from what the Supreme Court laid down in the 1973 Roe vs. Wade decision, which said states could only restrict abortions after the point of viability (i.e., the point at which a fetus can live outside the uterus), which is perhaps 23 weeks at the earliest.
So what is it that makes a life worth defending? The defining characteristics of what gives a living thing moral standing isn't just going to have implications for abortion.
For example, if we say that it's the ability of people to reason and make judgments (rationality and sapience, as in homo sapiens) that gives them moral standing, then it looks like we're leaving out not just the unborn, but also the newly born, as well as patients who are comatose or in a persistent vegetative state. If we instead take sentience – the ability to feel pleasure or pain – as the standard, then we'll attribute moral standing to most every human being, born or unborn, but also to a large chunk of the animal kingdom.
Could viability be the key? Not obviously. After all, lots of people need help in one form or another to survive even after they've been born, why should they have moral standing but not someone who needs help while still in the womb?
To make matters even more complicated, medical science keeps changing our understanding of who and what fits the description of being sentient or sapient or viable. An anencephalic fetus – a fetus with most or all of its brain missing, and little chance of survival – might today seem an apt candidate for abortion or even organ donation. But who knows? A decade or so from now new technology might make anencephaly as manageable as smallpox.
And, just to add yet more caveats, even in cases where we all agree that humans have a right to life, we still debate whether, how much, and in what form we should protect their lives. Today there are people at risk of famine in South Sudan, or at risk of being massacred in Pakistan, Syria, and Myanmar. No one questions whether they have a right to live, but how much are we obligated to do in order to defend that right?
So, how much aid and protection should we give to the unborn? Or to people who have been rendered brain dead or permanently unconscious? Or to animals that aren't human but that feel pain, and in some cases, sympathize with the pain of others?
Better yet, what would we do if we met an alien (like Star Trek's Mr. Spock) or an artificial intelligence (say, C-3PO) who was clearly not human, biologically speaking, but who could talk, reason, emote, and have friendships with us? Would we say they have every bit as much moral standing as we do, or deny it to them simply because they're the wrong species?
The bill passed in the House is going nowhere, but the debate about moral standing isn't. Whatever problems as the House bill might have, the status quo of Roe v Wade has several of its own. While it might seem like the issue of abortion was settled back in 1973, science is bringing us ever more knowledge about fetal development, comatose states, the mental abilities of animals and more.
And that means we're going to be debating things like abortion, euthanasia and animal rights even more in the near future, not less.
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