John Cunningham is a lawyer licensed to practice law in New Hampshire and Massachusetts, and he writes “Law in the Marketplace,” a column on business law and tax in the Monitor Sunday Business section. Before he became a lawyer, he taught philosophy at Georgetown University.
Not all moral rights are also legal rights. However, when, in its decision in the pending Dobbs case, the U.S. Supreme Court addresses the constitutional right of women to abort, we must hope that it will decide that case in a manner not inconsistent with moral convictions about abortion that are held by tens of millions of Americans, whether or not these convictions conflict with one another.
In my experience, the moral arguments for and against the abortion right — that is, arguments based not on religious or political commitments or on U. S. Supreme Court cases such as Roe v. Wade or Casey v. Planned Parenthood, but rather, on empirical facts and reasoning — are too rarely addressed in print and online media.
Before I became a lawyer, I taught philosophy at Georgetown University, including moral philosophy. In this My Turn, I’ll briefly articulate, as best I can, two widely held but conflicting moral arguments about abortion,both of which, I hope, the Supreme Court will take into account in its Dobbs decision.
Let me do so on the basis of a hypothesis. Jane Doe is 17. She and her family are poor. One night, she drinks too much and has unprotected sex with her boyfriend. A month later she misses her period. A drugstore test tells her she’s pregnant. She decides to abort.
Jane’s fetus has a moral right to develop as a human person in Jane’s womb and to be born. And the state clearly has a moral right to protect this right.
However, Jane has a moral right to seek the life she longs for as long as her choice doesn’t inflict unjustified harm on other persons. Her moral right is an unselfish one that, after many millennia, millions of Americans have finally come to recognize as belonging as fully to women as to men. It is a fundamental right for Jane because of its fundamental, practical and emotional impact on her life.
Jane is deeply troubled at the prospect of aborting her fetus. However, on the basis of her felt moral right of self-fulfillment, she believes she has a right to abort.
■Jane loves children, but she doesn’t want to have a child until she is older and more mature, has completed her education, and marries a man who also wants children and will help her support and raise her child. This is the future she longs for.
■She knows that she and her family can’t support another child.
■She doesn’t want to go through the often harsh experience of pregnancy and the agony of giving birth, only to have to give up her child for adoption.
Which moral right is greater, Jane’s right or that of her fetus?
Not only on religious and legal grounds but also on the basis of facts and reasoning, tens of millions of pro-life advocates believe that because fetuses are human beings, they have an absolute right to be born. In my view, this argument has great intuitive power.
On the other hand, tens of millions of pro-choice supporters believe that Jane’s question must be resolved through a careful process of balancing. The balance is between Jane’s fundamental right to seek her own self-fulfillment and the right of her fetus to be born.
On this basis, pro-choice supporters believe that Jane’s right as a young woman longing and working for a meaningful life is greater than the right of her newly conceived fetus, which, at five weeks, even lacks sentience.
In my view, this argument, too, has great intuitive power.
My conclusions are, first, each of us who confronts Jane’s question must seek as best we can to answer it on the basis not only of religion and politics but also of reason and the facts. We owe this duty to Jane, to ourselves and in our capacity as citizens.
And second, the Supreme Court must somehow decide Dobbs in a way that honors not only pro-life but also pro-choice moral concerns.