Abstract
On 22 January 2019, New York state passed the Reproductive Health Act (RHA), which specifies three circumstances under which a healthcare provider may perform an abortion in New York: (1) the patient is within twenty-four weeks of pregnancy, (2) the fetus is non-viable, or (3) the abortion is necessary to protect the patient’s life or health. The first one, that of abortion being accessible within the first twenty-four weeks of pregnancy, is not unique to New York, as many other states allow medical professionals to provide abortions during this time. The latter two have caused significant controversy because they detail certain circumstances in which abortions would be accessible after twenty-four weeks. This paper will focus on these latter two circumstances. I will first argue that any debate or discussion about (2) must go beyond the conventional debate about the ethics of abortion and incorporate, more appropriately, a discussion on euthanasia and the ethics of end-of-life care for nascent human life. In particular, it requires us to consider the morality of non-voluntary active euthanasia for non-viable fetuses, rather than just a discussion of the ethics of late term abortions. When it comes to (3), I will argue that assessing its moral permissibility actually raises some legitimate moral concerns, even from a reproductive rights perspective. On certain readings, it seems as if condition (3) would allow for the termination of a healthy fetus for reasons not related to the mother’s physical health or life. If this is the case, I argue, the right to an abortion would be construed as a right to fetal termination, rather than just fetal evacuation. However, I will argue that there are good reasons that pro-choice advocates should interpret the right to an abortion as a right to fetal evacuation instead of termination, and if this is the case, a woman should not be able to demand the death of a healthy fetus if ending the pregnancy safely via fetal evacuation would suffice.
Highlights
On 22 January 2019, on the 46th anniversary of Roe v
Many of the traditional arguments against the permissibility of abortion do not apply in these cases, nor in any case where a pregnancy is deemed “non-viable”, i.e., when a fetus is suffering from a terminal affliction where it would not survive outside the womb
Barring an immediate threat to her life or physical health, there is a strong case to be made that the best defense of abortion rights, one that is largely impervious to attacks from pro-life advocates who insist on fetal personhood, is one that entails that women cannot, in general, demand fetal termination to end a pregnancy when fetal evacuation safely suffices
Summary
On 22 January 2019, on the 46th anniversary of Roe v. Philosophies 2021, 6, 15 maintained that states may only limit abortions after the onset of fetal viability, i.e., when the fetus has the capacity to survive outside the womb.1 The latter two have caused significant controversy because they detail certain circumstances under which abortions would be accessible after twenty-four weeks (referred to here as “later abortions”). What counts as protecting a woman’s health is so broad that some have voiced concerns that (3) may allow for the termination of a viable and healthy fetus for reasons unrelated to the life or physical health of the pregnant woman. As I will further explain below, if (3) allows for the termination of a healthy viable fetus for reasons unrelated to saving a woman’s life or preserving her physical health, Thomson’s argument may entail that this exercise of abortion rights is morally problematic. The law will be required to revisit the notion of fetal viability and its impact on abortion rights
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