800 word paper ( double spaced, APA-style bibliography) and a Final

Applied Jurisprudence

Abortion – Part 3

The Abortion Debate

The Abortion Debate

Two Main Issues in the Abortion Debate ▪ 1) The Rights Of The Fetus

▪ 2) The Rights Of The Pregnant Woman

The Abortion Debate

The Rights of the Fetus

▪ Much of the abortion debate centers around the status of the fetus - namely, whether/at what point it is a person

• If the fetus is a person, then it has the rights that belong to persons, including the right to life.

▪ If the fetus has the right to life, then it is wrong to kill/abort it

The Abortion Debate

The Rights of the Fetus (continued)

The Conservative View

▪ The Conservative View is that the fetus becomes a person at conception

• Conception occurs when a sperm fertilizes an egg, forming a single cell known as a zygote

The Liberal View

▪ The Liberal View is that the fetus becomes a person at birth

The Abortion Debate

The Rights of the Fetus (continued)

The Moderate View ▪ The Moderate View is that the fetus becomes a person at some

point between conception and birth

▪ Stages of Fetal Development Between Conception and Birth • Implantation • Formation • Heartbeat • Quickening • Consciousness • Viability

The Abortion Debate

The Rights of the Fetus (continued)

The Moderate View (continued)

▪ Stages of Fetal Development Between Conception & Birth (continued)

• Implantation

o Implantation occurs when a zygote attaches to the wall of the uterus

▪ Implantation is what the Morning After Pill ( “Plan B”) prevents

• People who believe that the Morning After Pill is immoral/impermissible believe that the fetus becomes a person at conception

The Abortion Debate The Rights of the Fetus (continued)

The Moderate View (continued)

▪ Stages of Fetal Development Between Conception & Birth (continued) • Formation

o Formation occurs when the major components of all of the fetus’ body structures and organs have been formed

• Heartbeat o When the fetus’ heart starts to beat

• Quickening o When a pregnant woman first feels the fetus move inside of her ▪ According to a now abandoned English common law theory,

quickening was when the fetus obtained a soul

The Abortion Debate

The Rights of the Fetus (continued)

The Moderate View (continued)

▪ Stages of Fetal Development Between Conception & Birth (continued)

• Consciousness o Consciousness occurs when the fetus is able to feel pain

• Viability o Viability occurs when the fetus is capable of meaningful life outside

of the uterus

▪ By tying the state regulation of abortion to fetal viability (in Casey), the U.S. Supreme Court inferred that a fetus has the right to life at viability

The Abortion Debate

The Rights of the Pregnant Woman

A pregnant woman is not just a container for a fetus - she's a person with rights of her own, which must be considered

▪ Rights of The Pregnant Woman At Issue In The Abortion Debate 1. The Right to Autonomy & Bodily Integrity

o The right to control/choose what happens to your body

2. The Right to Self-Determination o The right to decide your own destiny (free will)

3. The Right to Health

The Abortion Debate

The Rights of the Pregnant Woman (continued)

The Conservative View

▪ The Conservative View is that a pregnant woman’s rights to autonomy & bodily integrity, self-determination and health (even her right to life) NEVER outweigh a fetus’ right to life

• As a result, the Conservative View is that abortion is never permissible/is always impermissible

o In other words, the Conservative View is that abortion should never be legal; It should be prohibited at any time during pregnancy.

The Abortion Debate

The Rights of the Pregnant Woman (continued)

The Liberal View

▪ The Liberal View is that a pregnant woman’s rights to autonomy & bodily integrity, self-determination and health ALWAYS outweigh a fetus’ right to life

• As a result, the Liberal View is that abortion is always permissible/is never impermissible

o In other words, the Liberal View is that abortion should never be prohibited; It should be legal at any time during pregnancy.

The Abortion Debate

The Rights of the Pregnant Woman (continued)

The Moderate View

▪ The Moderate View is that a pregnant woman’s rights to autonomy & bodily integrity, self-determination and health MAY outweigh a fetus’ right to life

• As a result, the Moderate View is that the permissibility and legality of abortion depends on secondary considerations

The Abortion Debate

The Rights of the Pregnant Woman (continued)

The Moderate View (continued)

▪ Secondary Considerations At Issue In the Abortion Debate • Whether there is a serious medical issue

• Whether the pregnancy was unintentional o Approximately 50% of pregnancies are unintended o Approximately 50% of unintended pregnancies result in abortion

• Whether there is a social issue

The Abortion Debate The Rights of the Pregnant Woman (continued)

The Moderate View (continued) ▪ Secondary Considerations At Issue In the Abortion Debate • Whether There Is A Serious Medical Issue

• The Mother's Life/Health Is At Risk  The Mother will die - or her held with be seriously compromised - if she

carries pregnancy to term

• The Fetus' Life/Health Is At Risk  The Fetus Is So Sick That It Will Die Later In The Pregnancy (stillborn)  The Fetus Is So Sick That It Will Die Shortly After Birth  The Fetus Is So Sick That It Will Die Within First Year of Life  There Are Too Many Fetuses In The Womb For Them All To Survive At

All/Without Defects (Selective Reduction)  The child will suffer from a serious physical or mental defect that will

seriously damage its quality of life

The Abortion Debate The Rights of the Pregnant Woman (continued)

The Moderate View (continued) ▪ Secondary Considerations At Issue In the Abortion Debate • Whether The Pregnancy Was Unintentional

o Approximately 50% of pregnancies are unintended o Approximately 50% of unintended pregnancies result in abortion

▪ Cases Where Pregnancy Is Entirely Unintentional o Pregnancy Is Caused by Rape or Incest o Pregnancy caused by a badly done vasectomy or a failure of

contraception where the potential parents are not to blame

▪ Cases Where Pregnancy Is Unintentional But Where A Risk Was Taken (Abortion As Contraception) o Pregnancy caused by failure to use – or careless use of - contraception

• Responsibility for Actions - Woman had sex out of her own free will) & she should take responsibility for the consequences of her actions

The Abortion Debate The Rights of the Pregnant Woman (continued)

The Moderate View (continued) ▪ Secondary Considerations At Issue In the Abortion Debate • Whether There Was A Social Issue

▪ The pregnant woman is financially unstable/can’t afford to care for/raise a/another child (i.e., impoverished, unemployed)

▪ The pregnant woman is too young to raise a child ▪ The pregnant woman is in an unstable/poor/bad or abusive relationship ▪ The pregnant woman is unmarried ▪ Having a child would prevent the pregnant woman from achieving a life objective (i.e.

school) ▪ Having a child would interfere with the pregnant woman’s job/career ▪ The pregnant woman is unable to emotionally cope with caring for a/another child ▪ Having a/another child would lower the family’s standard of living/hurt their lifestyle ▪ The pregnant woman is too old to raise a child (advanced maternal age) or completed

childbearing/childrearing ▪ The fetus is not of the preferred sex

Abortion Jurisprudence

Normative Jurisprudence

Normative Jurisprudence

The Relationship Between Law & Morality

Abortion Jurisprudence: Normative Jurisprudence

Normative Jurisprudence Examines:

▪ 1) The Relationship Between Law & Morality

▪ 2) The Proper Limits of the Law

Normative Jurisprudence: The Relationship between Law & Morality

Deontological Ethical Theories

Natural Law

▪ According to Natural Law, Abortion is Always Immoral

• Rationale for the View that Abortion is Immoral

• Abortion is immoral because it violates fetus’ fundamental and inalienable right to life

o We have a moral obligation to preserve life – especially innocent life

Normative Jurisprudence: The Relationship between Law & Morality

Deontological Ethical Theories (continued)

Kantian Ethics

▪ According to Kantian Ethics, Abortion can be Moral or Immoral

• Rationale for the View that Abortion is Immoral o All human life has equal value – even unborn/fetal life

o Since the fetus' life has value, we have a duty to treat it with dignity (as an end unto itself/not merely as a means to an end

o Abortion is immoral because it treats the fetus as a means to an end (we are aborting the fetus so that the pregnant woman can achieve happiness/fulfill her goals )

Normative Jurisprudence: The Relationship between Law & Morality

Deontological Ethical Theories (continued)

Kantian Ethics (continued)

• Rationale for the View that Abortion is Moral o Since the pregnant woman’s life has value, we have a duty to

treat her with dignity (as an end unto herself/not merely as a means to an end)

o Abortion is moral because it treats the woman as an end unto herself (a person with rights, needs and desires)

o Abortion is moral because forcing a woman to carry child she doesn't want (which we would be doing if abortion was prohibited) treats her [the pregnant woman] as a means to an end (she is being used as an "oven" to bake the fetus)

Normative Jurisprudence: The Relationship between Law & Morality

Teleological Ethical Theories Utilitarianism

▪ According to Utilitarianism, Abortion can be Moral or Immoral

• Whether Abortion is moral depends on whether it produces the greatest good for the greatest number of people.

• We must make this determination on a case-by-case basis by tallying the positive & negative consequences of (the good & bad that will result from) each woman’s decision to terminate her pregnancy.

o When determining the morality of abortion, we must weigh the potentially positive consequences that legalized abortion might have for some people against the potentially negative consequences that it might have for others

Normative Jurisprudence: The Relationship between Law & Morality

Teleological Ethical Theories (continued)

Utilitarianism (continued)

▪ Rationale for the View that Abortion is Moral

• The Positive Consequences of Abortion Outweigh Its Negative Consequences

o Potentially Positive Consequences of Abortion ▪ It allows women to make decisions about their bodies & their

future without government interference

▪ It reduces injury and death caused by unsafe illegal abortions

▪ It reduces the number of unwanted & neglected children

Normative Jurisprudence: The Relationship between Law & Morality

Teleological Ethical Theories (continued)

Utilitarianism (continued)

▪ Rationale for the View that Abortion is Moral (continued)

o Potentially Positive Consequences of Abortion (continued) ▪ It has a positive effect on women’s education, careers &

finances

▪ It has a positive effect on romantic relationships

▪ It saves taxpayers money on Medicaid & other social services programs (welfare, food stamps)

▪ It reduces crime

Normative Jurisprudence: Relationship between Law & Morality

Teleological Ethical Theories (continued)

Utilitarianism (continued)

▪ Rationale for the View that Abortion is Immoral

• The Negative Consequences of Abortion Outweigh Its Positive Consequences

o Potentially Negative Consequences of Abortion ▪ It sanctions the senseless killing of innocent life/devalues

the sanctity of human life ▪ It interferes with doctors’ roles as healers & violates the

Hippocratic Oath ▪ It has a negative effect on a woman’s health

Normative Jurisprudence: The Relationship between Law & Morality

Teleological Ethical Theories (continued)

Utilitarianism (continued)

▪ Rationale for the View that Abortion is Immoral (continued) o Potentially Negative Consequences of Abortion (continued) ▪ It deprives fathers of the opportunity to raise their children ▪ It’s a drain on taxpayers ▪ It reduces the number of adoptable babies ▪ It could expose women in vulnerable groups to pressure to

terminate their pregnancies ▪ It eliminates the fetus’ potential contribution to society ▪ It negatively affects people with genetic abnormalities ▪ It’s a slippery slope to Eugenics

Normative Jurisprudence: The Relationship between Law & Morality

Teleological Ethical Theories (continued)

Ethical Altruism

▪ According to Ethical Altruism, Abortion can be Moral or Immoral

• Whether abortion is moral depends on why the pregnant woman had the abortion:

o Abortion Is Moral ▪ Abortion is moral if the pregnant woman did it for unselfish

reasons/for someone else's benefit (to her own detriment)

o Abortion Is Immoral ▪ Abortion is immoral if the pregnant woman did it for selfish

reasons/for her own benefit (to someone else’s detriment)

Normative Jurisprudence: The Relationship between Law & Morality

Teleological Ethical Theories (continued)

Ethical Egoism

▪ According to Ethical Egoism, Abortion can be Moral or Immoral

• Whether abortion is moral depends on why the pregnant woman had the abortion:

o Abortion Is Moral ▪ Abortion is moral if the pregnant woman did it for selfish

reasons/for her own benefit (to someone else’s detriment)

o Abortion Is Immoral ▪ Abortion is immoral if the pregnant woman did it for unselfish

reasons/for someone else's benefit (to her own detriment)

Normative Jurisprudence

Freedom & The Proper Limits of the Law

Normative Jurisprudence: Freedom and The Proper Limits of the Law

The Harm Principle

▪ The government may prohibit abortion only if doing so is necessary to prevent pregnant women from causing harm to others

• A law that bans abortion out of the government's desire to spare the fetus - which it deems to be a person - from being killed, is justified by the Harm Principle

Normative Jurisprudence: Freedom and The Proper Limits of the Law

The Principle of Legal Paternalism

▪ The government may prohibit abortion if doing so is necessary to prevent pregnant women from causing physical or psychological harm to themselves

• A law that bans abortion out of the government's desire to protect pregnant women from suffering long-term psychological damage as a result of their decision to terminate their pregnancies is justified by the Principle of Legal Paternalism

Normative Jurisprudence: Freedom and The Proper Limits of the Law

The Principle of Legal Moralism

▪ The government may prohibit abortion if society deems the practice [of abortion] to be immoral

• A law that bans abortion because society, as a whole, believes that it's immoral to destroy human life is justified by the Principle of Legal Moralism

Critical Jurisprudence

Critical Jurisprudence

Legal Realism

▪ Legal Realists believe that when judges hear abortion cases, they often base their decision on their own political and moral views on abortion instead of relying on court precedent

• Example: In Gonzales v Carhart the conservative leaning US Supreme Court ignored the precedent set by Roe, Doe and Casey by upholding a federal law that banned the partial birth abortion procedure without including an exception for instances where the procedure was necessary to protect the health of the pregnant woman.

Critical Jurisprudence

Critical Legal Studies

Critical Legal Studies Theorists believe that abortions laws are enacted to oppress the poor and keep the wealthy in power

▪ When Abortion is Prohibited or Restricted, the Poor Suffer the Most

• Abortion prohibitions & restrictions disproportionately affect the poor

▪ When Abortion is Legal, the Poor Suffer the Most

• Abortion is an instrument of class genocide

Critical Jurisprudence

Critical Race Theory

Critical Race Theorists believe that abortions laws are enacted to oppress racial and ethnic minorities and keep Whites in power

▪ When Abortion is Prohibited or Restricted, Racial/Ethnic Minorities Suffer the Most

• Abortion prohibitions & restrictions disproportionately affect racial and ethnic minorities (specifically, non-Hispanic Blacks)

▪ When Abortion is Legal, Racial/Ethnic Minorities Suffer the Most

• Abortion is an instrument of racial genocide

Critical Jurisprudence Feminist Legal Theory

Feminist Legal Theorists believe that abortions laws are enacted to oppress women and keep men in power ▪ When Abortion is Prohibited or Restricted, Women Suffer the Most

• Legalized abortion is vital for gender equality

▪ When Abortion is Legal, Women Suffer the Most • Abortion doesn’t liberate women, it constrains them by allowing the government to

refrain from giving women what they need to survive socially & financially as mothers (e.g. paid maternity leave, inexpensive childcare, programs that reintegrate mothers into the workforce, flexible work and school scheduling)

• Legalized Abortion Damages Women’s Psychological Health

• Legalized Abortion Is a Male Plot. It Allows Men to Sexually Exploit Women Without Having to Take Responsibility for Any Resulting Children