” Blackmun then cited the views of various groups that had, according to him, rejected the view that life begins at conception. Second, Blackmun went on to defend the view that “In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth or to accord legal rights to the unborn….” He concluded that the court had neither judicial precedent nor philosophical or theological authority for making a decision based on the judgment that life begins before live birth. It is not hard to understand d how this conclusion, when combined with women’s liberty rights or privacy rights, leads to the permissibility of abortion. Blackmun’s view deserves discussion. Suppose it is true that life does not begin before live birth. Given this, what is the appropriate way to think of fetuses? It follows from our supposition that we should not think of fetuses as now actually alive. Since life presumably begins at the time of live birth, these fetuses will become alive at a later date under favorable environmental conditions. This explains, at least in part, why, when thinking of fetuses, Blackmun spoke of the state’s legitimate interest in “protecting the potentiality of human life”7 (my emphasis). This same language turns up often in Planned Parenthood v. Casey. In this opinion the State’s interest in potential life, or the State’s interest in the protection of potential life is repeatedly mentioned. What is the nature and extent of this interest? One would naturally suppose the Court to be claiming that the State has some interest in the protection of a fetus in virtue of its interest in potential life. There is, however, a problem with this supposition. If the State has an interest in fetuses because they are potential lives, then the State should also have an interest in gametes because they are potential lives. We know something about the importance of this latter interest. The State’s interest in the contents of condoms as they are discarded seems to be as minimal as possible.
But if this is so, then the Court’s talk about the State’s interest in the potential life of fetuses seems to belong more to the category of rhetorical fluff than to the category of substantive legal doctrine. Reflection on Blackmun’s view suggests another question. Just what is the nature of this potential life in which the State is supposed to have an interest? Potential life talk seems to result from the denial that there is good reason for believing that fetuses are actually alive, and the acknowledgement that under the appropriate conditions the individuals in the fetal phase of existence would later be actually alive. Neither of these characterizations are of the present nature of fetuses. Certainly it is legitimate to ask what about a fetus, when it is a fetus, makes it potentially alive? If one considers what it is about fetuses that distinguishes them from other things that one would not dream of characterizing as potentially alive, such as rocks, one thinks of features such as metabolism, cell division, growth, and development into something that we might call a mature human being. The trouble with paying much attention to these features is that they seem to be signs of actual life. But the point of the talk about potential life was to deny this. This suggests that the Court’s claim about the State’s interest in potential life is incoherent. Consider two possible objections to the analysis offered above. One might object that I have selected texts from the famous abortion opinions to support it. To some extent, this s true. Sometimes the Court in Casey speaks of the State interest in protecting the life of the unborn.9 Taken literally this must mean the actual life, rather than the potential life. However, there is reason not to take this literally. The State interest in human life is a very significant interest. It explains why the State regards murder as a very serious crime. The Court would have had very great difficulty arriving at its decision if this language about actual life were to be taken as something other than a linguistic slip. The second possible objection is that sometimes when the Court speaks of when life begins; the Court seems, rather, to be thinking of the conditions under which the interests of human fetuses should be respected – what philosophers call fetal moral status. Accordingly, one might object that if one understands the Court this way, the argument that there is a problem with the Court opinion because fetuses are actually biologically alive would have no force. Inferences from biological properties to moral properties are invalid in the absence of additional premises. This objection won’t do either. There is absolutely no doubt, of course, that the Court in both Roe and Casey was concerned with the question of fetal moral status. However, it does not follow from this that the Court was not concerned with the question of when life begins. It seems clear that the issues of whether the fetus has moral status and when life begins were considered to be equivalent by the Court. They simply took for granted what I shall call in this essay “the standard view.” The standard view is the common view that all living human beings have the right to life because they are living human beings (although there may be, of course, special circumstances in which that right may be overridden or waived). If this (obviously partial) analysis of the major Supreme Court abortion opinions is correct, then it is clear that there is a huge problem within those opinions. The Court took for granted the supposition that being human and alive is what gives a human life full moral standing. Given this supposition, a major issue regarding abortion had to be when did that human life – with full moral status – begin? The Court claimed that they could find no reason for deciding that human life began before birth, a claim necessary for them to arrive at the doctrine of abortion choice. Nevertheless, this view has some consequences that seem to be absurd. The Court was induced to talk about an interest in potential life – an interest that seems to be all talk and no substance. Apparently they are committed to the view that fetuses are not actually, but only potentially, alive – a view that blatantly contradicts the biological facts. It is not difficult to understand how these aspects of the Court’s views have enraged abortion opponents. The Court’s views are seriously flawed. Once these flaws are corrected, abortion’s opponents can correctly argue that what remains of Roe and Casey provides no basis at all for a Constitutional right to an abortion. The majority in Roe and Casey took what I have called the standard view for granted. There are obvious rhetorical advantages to using the standard view to argue against the conclusion of the majority. There are also obvious rhetorical advantages to arguing from the assumptions of pro-choice Constitutional law to an anti-choice conclusion, and advantages to arguing from the standard view to claim that abortion is wrong. Nevertheless, I want to argue that these advantages should be foregone. In the final analysis this apparently attractive argument strategy is unsound. I want to argue this not on the ground that there is a different, superior argument strategy that is either pro- or anti- choice (although I think that there is), but on the ground that the standard view common to Roe, Casey, and the pro-choice and anti-choice movements simply cannot withstand serious analysis. Readers of this essay should beware. You will find it easy to assume as you read that I am criticizing the assumptions common to Roe, Casey, and the popular anti-choice movement in order to support the platform of abortion choice. Nothing could be further from the truth. My analysis of the standard view will constitute the bulk of this essay. After that I shall offer a brief account of a replacement for the standard view that underwrites the prohibition of abortion choice. I shall contend that this replacement view remedies the deficiencies of the standard view. I shall also suggest that this replacement is far more plausible than the standard view for other reasons.