There are serious inconsistencies within Missouri’s newest abortion law, House Bill 126. Its preamble cites the Missouri Constitution, which “provides that all persons have a natural right to life.” Left unmentioned from Missouri’s Constitution is “that all persons are created equal and are entitled to equal rights.” But acknowledging this entails that all persons have an equal natural right to life.
Within Missouri’s Constitution, the status of the unborn child is not addressed within its definition of “person.” However, in HB126 the meaning of “person” is stretched to include “unborn child,” defined as “the offspring of human beings from the moment of conception until birth.” Then cited is a 1972 Missouri Supreme Court ruling that “unborn children have all the qualities and attributes of adult human persons, differing only in age or maturity.”
So if fetuses are indeed fully human persons, then abortion, so planned and premeditated, is murder, and should be not merely a Class B felony but as Class A, punishable by up to life for any woman performing one on herself, and/or for any practitioner involved.
Then again, considering the unborn child a person with equal right to life led Republicans to insist on forced birth in cases of incest or rape — allowing for the potential that a rapist could appear with his victim in court to claim paternity rights, including full custody if the mother is judged unfit, and even the mother owing child support if she were well-to-do and the rapist less so.
The new law does retain an exception favoring the mother when her life is endangered or in serious risk of irreversible physical impairment. The Missouri Constitution dictates both mother and fetus have equal claim to life, yet HB126 nonetheless predetermines that the right to life of the mother supersedes the “equal” right of the unborn child in such cases. This outcome feels intuitively correct but requires justification.
These results show that legislating the unborn to be a fully human person is problematic in its implications.
Regarding personhood, philosophers point to qualities that normal adult persons have, e.g. ability to think rationally, being aware of oneself as existing over time, the ability to act upon decisions made, having complex social relationships. Such attributes also presuppose self-awareness (self-consciousness). The unborn have yet to acquire any of these qualities, whereas the mother, in most cases, exhibits them.
Hence the mother’s life, when threatened, takes precedence, as she is fully a person. (De-personizing the fetus would also be more consistent with the lesser felony sentences encoded within HB126 for those pursuing abortions, and would solve the rape/incest conundrum.)
The Supreme Court case Planned Parenthood v. Casey in 1992 did not address when life begins but elevated Roe’s “fetal viability outside the womb” (about 22 weeks) as the standard after which states may regulate abortion. HB126 did assert when life begins: “The child is, in truth, alive from the moment of conception.” It also outlaws all abortion when a pulsing fetal pole — a fetal heartbeat — is detected, or after 8 weeks of pregnancy.
There is no reason that detection of a fetal heartbeat should be morally significant; such embryonic pulsing merely confirms pregnancy. What is most morally relevant is whether this being would suffer if it’s aborted. Medical consensus suggests that fetal consciousness may ensue at 18 weeks of gestation — the time beyond which the fetus could feel pain if aborted. Abortion before that time is more humane, more morally defensible, and well within the viability standard established by Casey.
We needn’t deny that the fetus is alive or that it’s human. It’s when we try to declare it a natural person that both moral inconsistencies and conflicts with Roe and Casey arise. “Life is sacred” can be a premise, a religious tenet; or a conclusion, but typically without argument. Either way it’s problematic to impose on the public.
The Missouri Constitution also decrees “that no human authority can control or interfere with the rights of conscience.” This certainly includes Missouri persons who are making moral decisions of conscience regarding their pregnancies. Designed to challenge federal constitutional edicts, HB126 is already in breach of the Missouri Constitution, and should be challenged as such in Missouri courts.
Our common goal should be to minimize the incidence of abortions, and when occurring to accomplish them within the safe pain threshold of 18 weeks. And this is when 95% of abortions already take place. Women and their caregivers should be entrusted to make these personal moral decisions.
William Ash is a University City resident with a degree in philosophy from the University of Illinois, Champaign-Urbana.