Introduction

In March of 2006, the South Dakota legislature passed the Women's Health and Human Life Protection Act, which bans all abortions except when the mother’s life is in danger. Louisiana recently joined South Dakota in adopting a strict anti-abortion measure, scheduled to become law should Roe v. Wade be overturned. These statutes declare, in effect, that a newly-conceived embryo’s right to life trumps the interests of everyone else party to a decision about abortion.

The Declaration of Independence asserts our rights to “life, liberty, and the pursuit of happiness,” but conflicts between these rights are commonplace. The extreme pro-life position states that if there’s a conflict between an embryo’s right to life and the liberty of adults, for instance the freedom not to carry a child to term, life always trumps liberty. Pro-choice advocates obviously believe otherwise.

What establishes, they ask, the overriding value attached to an newly fertilized ovum that requires women to bear the children of rapists, and perhaps to sacrifice their health and life opportunities to raise an unwanted child? Why should the continued existence of an insentient group of cells have priority over the interests of a fully developed individual?

The pro-life answer – their argument against abortion (and embryonic stem cell research) – is pretty straightforward: embryos, babies, children and adults are all stages of human life. All these stages are equally alive, all are equally human, and therefore, the reasoning goes, all have equal worth. But does the conclusion follow? Are all stages of human life equally worthy of protection, and if so, why? 

The South Dakota statute declares that “the guarantee of due process of law under the Constitution of South Dakota applies equally to born and unborn human beings, and that under the Constitution of South Dakota, a pregnant mother and her unborn child, each possess a natural and inalienable right to life.” Nevertheless, the statute still permits the destruction of the fetus when the mother’s life is in danger. This suggests that even pro-life advocates accord more value to a sentient, autonomous individual than a fetus or newly fertilized egg. This is unsurprising, since we quite naturally feel more sympathy and concern for a person with fully developed capacities and a network of established relationships than we do for an insentient embryo which has neither. So it isn’t difficult to choose between these two stages of life when faced with a decision about which should live. The psychological and practical costs of death are simply much higher in one case than the other, and the South Dakota statute implicitly accepts this, despite its language about equal rights for the born and unborn.

But the question remains whether there are other interests besides the life of the mother that might outweigh the continued existence of the embryo, for instance the interest of the mother in not raising an unwanted child, or, in the case of stem cell research, the potential medical benefits of experiments involving embryonic stem cells which require destroying the embryo. The pro-life forces generally discount such interests, while the pro-choice, pro-research forces think there are many legitimate interests which might count more than the embryo’s survival.  So who’s right about this?   

Sectarian vs. secular justifications

When it comes to justifying social policy, for instance on abortion or stem cell research, we can draw a distinction between arguments that invoke contested worldviews about ultimate reality, such as faith-based religions and science-based naturalism, and arguments that don’t. The former I’ll call sectarian, the latter secular. The faith-based claim that God endows a newly-formed embryo with an immortal soul is sectarian, since it invokes a religious worldview that many might not hold in a diverse pluralistic society. The naturalist’s claim that there is no such soul is equally contested and equally sectarian. By contrast, the claim that an embryo has the potential to become an autonomous individual is secular, since whatever religion or view of ultimate reality you subscribe to, it’s likely you accept it. Even if we have disagreements about souls, we all agree about the basic biological facts of life.

In an open, pluralistic society such as the United States, only secular claims are allowed, or should be allowed, as direct justifications for laws and policies. Our loyalty to an open society stems largely from knowing that in matters of public policy we reach consensus on secular, shared grounds, such that no particular religious or metaphysical view of ultimate reality gets to rule in matters affecting all citizens. It might of course happen that policy lines up with a particular sectarian worldview, but in a democratic society the justifications for policy must have an independent basis stemming from concerns related to this world, the physical and social reality we all agree we inhabit.[1]

To allow a sectarian worldview to drive laws and regulations, without a supporting and independently sufficient secular rationale, would violate the First Amendment separation of church and state, since it would permit a contested understanding of ultimate reality to govern public policy. According to what’s become known as the Lemon Test, a constitutionally permissible law has to meet three criteria. In Justice Burger’s language from his opinion in Lemon vs. Kurtzman, a statute 1) must “have a secular legislative purpose”, 2) its “principal or primary effect must be one that neither advances nor inhibits religion”, and 3) “the statute must not foster ‘an excessive government entanglement with religion.’”

This means there must be secular reasons to justify anti-abortion policies which hold, in effect, that an embryo’s continued existence should trump all other interests, short of the mother’s life. To be constitutional, legal restrictions on a woman’s reproductive choices must be justified on grounds that appeal to values independent of contested worldviews and religions, otherwise the restrictions will unfairly enshrine a particular worldview in public policy.

Secular intuitions about personhood and rights

The debate about the rights of the embryo is often framed as the question of whether or not it’s a person. If it is, then it has all the rights of other persons, including the right to life. Dictionary definitions of “person” include “a living human,” “human,” “individual,” and “a man, woman or child.”  Since a newly-fertilized, microscopic human zygote – the conceptus –  is living and human, then according to at least some of these definitions it counts as a person. But of course this is hotly contested. The substantive issue at stake about personhood is whether the conceptus and later stages of the embryo and fetus have the same rights as uncontroversially existing persons. In the context of the abortion debate, the term “person” simply functions as shorthand for “a human entity owed the full set of rights under the Constitution.”  To assert that the conceptus, embryo, or fetus is a person is simply to assert that it has these rights, which is to assert that all stages of human life should be equally protected under law. This is the principle that strict pro-life advocates are trying to establish.

The current secular consensus, however, is that all stages of human life do not merit equal protection. As mentioned above, it’s an uncontroversially easy choice to allow a woman to live, not her fetus, when that choice is forced by a dangerous pregnancy. And of course Roe v. Wade gives later human life stages precedence over the beginnings of life, since prospective mothers are free to abort for personal reasons up until the 3^rd trimester, subject to various restrictions as determined by states. In most practical and legal contexts, the secular consensus is that the embryo is not a person – it doesn’t have the same rights as sentient individuals. If it did, then as Lawrence Tribe points out, a host of unpalatable consequences follow, including treating abortion as murder, forcing women to take extraordinary steps to maintain fetal health, outlawing certain forms of contraception, and requiring that all embryos created by in vitro fertilization be implanted and brought to term.[2] It would also mean banning all embryonic stem cell research, public and private. 

The consensus giving precedence to later stages of human life exists because ordinary human psychology generates different levels of concern for different stages. We are generally more protective and concerned about an entity that clearly has sentience and self-pertaining interests than something that clearly has neither. The capacity for such concern is a basic human endowment: we are hard-wired to be protective of beings that manifest sentience and self-interest, especially those close to us and those of our species. Having concern for other individuals is simply part of who we are; it’s in just about everyone’s psychological makeup.

Given that this shared predisposition is on a par with other instincts related to self and species preservation, it doesn’t need external validation from a religious or philosophical worldview to have a claim on us. Few suppose we have to justify, on any additional metaphysical basis, our natural impulse to be protective of newborns, children, and adults. Rather, our default concern for their welfare is among the secular, non-religiously grounded benchmarks of what’s moral; it sets an objective ethical standard for behavior, such that when someone’s welfare is unjustly compromised, for instance by an unprovoked attack or murder, it provokes near universal condemnation. This is a matter of shared, secular human psychology, not a contested metaphysics or worldview.

On the other hand, nearly everyone supposes we do have to justify, on some further basis, the claim that we should have the same level of concern for the conceptus. Some evidence for this is that anti-abortion, pro-life advocates are continually engaged in mounting arguments for why that concern is obligatory, and why embryos must be given the same rights as later stages of human life. The project of defending the embryo’s right to life implicitly concedes that the ordinary secular intuition about the conceptus is that it doesn’t merit the same concern, or possess the same rights, as do later stages. The pro-life forces are thus going very much against the grain of human psychology by demanding we accord embryos the same moral status as we do babies, children and adults, beings that we uncontroversially consider persons.[3]

The autonomy right vs. the fetal right to life

An uncontested secular value in our society, one that flows from our innate concern for persons, is the value of personal liberty and autonomy. Whatever their worldview, nearly everyone agrees that, barring certain conditions, babies, children and adults have constitutional rights to “life, liberty, and the pursuit of happiness.” Unless, for instance, we knowingly and voluntarily break the law, we are presumptively entitled to these rights, among which is of course the right to life itself. This, to repeat, is a categorically secular agreement about a central human value, in that it’s affirmed by those of many different persuasions about ultimate reality. The protection under the Constitution of what I’ll call the individual’s autonomy right is based not in the will of God, but the will of the people. Our agreement about rights is driven by our shared psychological disposition to feel concern for persons and their interests, not a shared metaphysics. After all, in the U.S. we are deeply divided on metaphysical questions about ultimate reality. 

Pro-life advocates insist that however insentient the embryo, and however much it can’t represent its own interests, its right to life has a moral claim on us nearly equivalent to the life of a child or adult (nearly equivalent because they concede a mother’s life trumps that of the fetus should a conflict arise). Further – and this is the crucial point – its continuing existence definitively overrides all conflicting personal interests except for the life of the mother. The continuation of life in utero from the moment of conception merits more protection than the autonomy rights granted under the Constitution to each existing sentient individual, including the right of a woman to end her pregnancy before the 3^rd trimester as now protected by Roe v. Wade. 

But what’s the secular justification for this claim? Since the conceptus has no sentience or self-represented interests, its secular value only derives from how adult persons such as ourselves value it on the basis of what we agree are shared, this-world, secular concerns. The only concern that could possibly trump the value of the autonomy rights of uncontroversially existing persons as protected by the Constitution is an opposing concern of at least the same magnitude. But unless one has already decided on other grounds, for instance a religious belief in the soul, that an embryo's existence has greater value than a sentient individual’s interests, such concern will not be present.

Existing interests and the persons that embody them are self-declared, actualized, and uncontroversially real for all of us; they directly motivate the secular conviction that human rights are worthy of protection under law. By contrast, the potential interests of a microscopic fertilized egg are just that – potential; and although it exists, it isn’t manifest or concretely real for us in the way developed human beings are.  Thus, a conceptus doesn’t normally generate moral concern sufficient to motivate giving its existence protection that overrides the interests of ourselves or our peers. Pro-life concern for the embryo isn’t the normal moral regard generated by a distinct individual in front of us, but typically a religiously-driven concern which then infects pro-life psychology.

This psychology then distorts the weights normally assigned to the competing values at stake in an abortion decision. In the case of an unintended and unwanted pregnancy, we must weigh the harm of forcing the woman to give birth to an unwanted child against the harm of destroying an embryo. The forced birth is quite likely a psychologically damaging burden for the mother that could severely limit her life prospects. Destroying the embryo, on the other hand, doesn’t destroy a sentient, self-interested being; it doesn’t inflict suffering or compromise any self-declared or manifest interests; nor does the embryo’s destruction inflict harm on the sentient being it would have become, since the capacity to suffer must first exist to suffer harms. Compared to the damage inflicted by a forced birth on the mother’s real, actualized life, its destruction is of far less consequence. We intuitively understand this when we judge, uncontroversially, that it is not a human tragedy that a high percentage of fertilized eggs never achieve implantation (up to two-thirds, by some estimates) but are expelled during menstruation.  

The psychology of the strict anti-abortionist reverses these judgments. For him, the value of the embryo’s continued existence, as a stage of human life, outweighs the value of the mother’s autonomy right, so the harm to the mother of bearing an unwanted child is less than the harm of the embryo’s destruction. But this reversal of the normally assigned values usually stems from a religious conviction about the God-given “sanctity” of all human life, starting at conception. This is usually the case since there’s nothing in normal human psychology, independent of such a conviction, that could accomplish the reversal. This is to say that there’s no secular basis for valuing the continued existence of the embryo over the life interests and autonomy of the mother, or if there is, pro-life advocates have yet to successfully articulate it.** Strict anti-abortionists assert that overriding concern for the embryo is mandatory for all of us, and that the right to life that flows from such concern must be protected, but they are finally unable to justify this assertion on grounds apart from religion. They can, of course, simply declare that fetal life has an intrinsic value that trumps the rights of the mother (the South Dakota statute in effect declares this) but that’s not a justification, merely a declaration. Without an explicit, independent basis in secular concerns, strict anti-abortion statutes lack a secular purpose and illicitly advance religion. They therefore violate the First Amendment as expressed in the Lemon Test, and so are unconstitutional.

**Some have tried, see here, for instance.

Pro-life persuasion, and how to combat it

Lacking a secular rationale, pro-life forces nevertheless try to marshal apparently secular support for the fetal right to life. One stratagem is to generate moral concern for early stages of human life by playing on their physical similarity to later stages, for instance by displaying images of fetuses that have recognizable human features. If this prompts a sympathetic response in us, we may start to feel on a gut level that to abort a conceptus or fetus before the 3rd trimester is to kill a baby, and babies, after all, are legally persons. So the superficial appearance of uncontroversial personhood is employed to generate person-level moral concern for early stages of pregnancy. It’s significant that abortion opponents don’t carry posters depicting newly conceived embryos, which when magnified look more like buckyballs than people. To do so would of course motivate intuitions in the opposite direction: this embryo is nothing like a stage of life to which we uncontroversially grant rights, so you needn’t be as concerned about it. 

Another seemingly secular pro-life ploy is to describe fetal life as “innocent.” An innocent life obviously has done nothing to “deserve” death, so must be allowed to live, the implicit logic goes. But of course on a secular understanding of guilt and innocence all of us are innocent until proven guilty of some crime, so there’s nothing especially innocent about the conceptus. So it doesn’t especially deserve to live. Of course abortion opponents are trying to trade on the Christian sense of innocence, the opposite of being fallen or sinful, without explicitly saying so. But again, there’s no valid secular sense in which the living are morally inferior to the unborn. Indeed, the unborn aren’t yet moral agents to whom we can be compared. All told, the appeal to unborn innocence fails as a valid secular argument for granting the embryo a mandatory right to life. Faith can’t hide behind it.

The South Dakota statute states, ominously, that abortions should be prohibited in order to protect, among other things, “the mother's fundamental natural intrinsic right to a relationship with her child.” I say ominously since this right, although ostensibly the mother’s to exercise, is deemed to supersede any other interests she might have, whether or not she voluntarily asserts the right. So what might sound like an appeal to protecting her autonomy is in fact just the opposite. Once a child is born, then yes, the mother-child relationship has an overriding secular priority, but the obligation to maintain that “relationship” from the moment of conception can’t be assumed without also assuming that the conceptus is the moral equivalent of an uncontroversially existing person. And as argued above, that assumption has no defensible secular justification. Our personal priorities can’t, and shouldn’t, be legislated in abortion statutes without such a justification, since to do so unconstitutionally enshrines a hidden sectarian agenda in public policy. By contrast, leaving the decision to abort (or not) up to those directly involved in the situation, as does Roe v. Wade, permits everyone to act according to the worldview of their choice, an important liberty right. This is as it should be since the question of whether or not to abort has no demonstrable secular right answer in all cases. Instead, the answer must depend on how much those involved in the decision value the existence of the embryo, weighed against their other interests.

It’s possible, perhaps because of pro-life persuasions, that a majority of citizens and their elected representatives come to feel the same concern for the embryo as they do for babies, children and adults. They might come to believe that it’s owed all the rights of personhood, and further that its right to life should trump the interests of the mother, short of killing her. Enacted into law (for instance along the lines of the South Dakota statute), this would count as nominally secular legislation since no explicit religious convictions need be invoked. That it lacks a cogent secular justification would make it vulnerable to challenge, but that wouldn’t necessarily prevent it from becoming (bad) law.

This is a depressing prospect for pro-choice advocates, but to reassure ourselves we should remember just how much the strict anti-abortion position conflicts with the basic human psychology that drives secular intuitions about personhood and rights. It’s an unlikely prospect that the majority of citizens, properly informed, will ever be persuaded that the continued existence of a microscopic, minutes-old, newly implanted conceptus should override the autonomy rights and liberty interests of the mother, father, or any other fully sentient and self-interested party to an abortion decision. But to forestall this eventuality, pro-choice forces must continually keep in the foreground of public awareness the vast objective differences between the conceptus and a sentient human being. They must capitalize on our robust, innate predisposition to feel far more concern for existing individuals than for a few dozen or hundred cells – something very close to an abstraction were it not for microscopes. And they must not permit religious ideology to distort the priorities set by normal human sympathies.

More generally, pro-choice advocates should make the case that human life is not necessarily a summum bonum to be maximized at all costs. Although life is a necessary condition of having a life worth living, it isn’t sufficient. We must acknowledge that the value of sheer existence (our own or an embryo’s) sometimes places below other secular values, such as our desires to avoid suffering, be autonomous in pursuit of one’s life goals, raise only wanted children, protect one’s family, serve one’s country, and to prevent the world from being overrun by homo sapiens, sometimes described as the planet’s most successful weed species. The pro-life, religiously-motivated injunction to produce and protect human life no matter what its quality (“go forth and multiply”) is one of our “selfish” genes’ most devious mimetic stratagems: human replicators become infected by the religious meme of ostensibly selfless, spiritual concern for the souls of the unborn, which unwittingly serves the genes’ reproductive agenda.[4]  Pro-life dogma about the fetal right to life is a gene-meme triumph of the first order, an attack on personal autonomy and planetary health which can best be combated by exposing it as such. Why should we sacrifice the quality and diversity of life, ours and other creatures’, for sheer quantity?

Pro-choice forces must also work to keep certain fundamentalist religious groups and their worldviews from gaining further influence, since after all it is religious convictions, hidden under seemingly secular rationales, that mostly motivate opposition to abortion.  In that regard, naturalism merits consideration as an alternative worldview, one that’s friendly to this-world, secular concerns precisely because it asserts that this world is all there is.[5]  To the extent that naturalism can help displace worldviews that mandate equal rights and a pre-eminent value for the embryo, this will help secure a woman’s right to choose.

Thomas W. Clark, July, 2006, updated 2022

Notes

Important Note:  Peter Wenz's 1992 Abortion Rights as Religious Freedom lays out in detail a First Amendment, church-state separation argument for abortion rights, so I'm mostly reinventing his wheel in this paper, which I wrote before finding his book, reviewed here. A similar tack is taken in Secularism and Sexuality: The Case for Gay Equality.