The Ethics of Later Abortion

Discussions of the ethics of abortion and fetal personhood can sometimes break down because pro-life and pro-choice debaters often focus on abortions at different stages of pregnancy. Pro-life proponents often speak of abortion as if it were always taking place at the end of pregnancy, while pro-choice advocates often speak abortion as if it were always taking place in the first trimester. Pro-choice advocates justify this by pointing out that the vast majority of abortions take place before 20 weeks, generally considered the earliest point at which a fetus could be conscious if removed from the womb. On the other hand, pro-life advocates respond by pointing out that a significant number of abortions still take place after this point, and that many of these abortions are still elective (or not done because of fetal abnormalities or to save the life of the mother. )

In discussing late term abortions specifically, pro-choice advocates often fall into one of two positions. Many argue that women only ever seek out late term abortion for a “good reason,” such as fetal abnormalities or immediate health risk to the woman. Others will concede that women who get late term abortions are acting immorally, even if bodily autonomy still guarantees their right to do so. The former position is not supported by research on the motivations of women who get late term abortions, while the latter position sets up a dichotomy between “good women” who abort early and “selfish women” who wait too long.

Feminists should not promulgate misleading or false rhetoric about later term abortions – nor should they lazily throw women who get late term abortions under the bus to “save” abortions for the “good women” who got them early. It may be argued that this issue is more important than that of early abortion to intersectional feminists, because the women who get abortions late in pregnancy are more likely to be poor, underage, non-white, and otherwise underprivileged; they are also likely to face the harshest punishments and retribution from their communities. Instead, we should confront the morality of late term abortion head on and consider whether women who acquire abortions or self-abort late in pregnancy are actually any more selfish or immoral than the women who did not do so.

In this particular piece, I’m going to focus specifically on the ethics of late term abortion, or abortions that take place after the neurological development required for consciousness has occurred. I will make the argument that the scientific evidence on fetal life supports the idea that, if consciousness is accepted as necessary for personhood, there is no difference in the morality of late term abortion vs early term abortion; both early and late term abortions are morally equivalent, and even late terminations of pregnancy can be justified as moral by personhood arguments without referencing bodily autonomy.

I assume here that the arguments made to justify early-term abortion, IVF, and certain types of birth control on the grounds that personhood begins with consciousness are valid; justification for this argument can be found here, but will not be repeated in this piece. Nor will specific arguments around bodily autonomy be addressed, though they may provide additional reason to consider all abortions morally acceptable.

The beginnings of consciousness

In his work “A Defense of Abortion”, David Boonin makes the claim that a fetus ought to “[acquire] the right to life …. when it begins to have conscious desires.” Boonin goes on to imply that conscious desires begin “when [the fetus] begins to have a certain kind of electrical activity in its cerebral cortex… at some point 25 to 32 weeks after fertilization.” (Boonin, 115) That fetuses can be assumed to be conscious at this point, or at least cognitively equivalent to newborns, has generally been accepted by other pro-choice philosophers.  Indeed, Peter Singer has been quoted as saying the following:

Pro-life groups are right about one thing. The location of the baby inside or outside the womb cannot make such a crucial, moral difference. We cannot coherently hold that it is all right to kill a fetus a week before birth, but as soon as the baby is born, everything must be done to keep it alive.

Peter Singer, “The Right Thing to Do: Basic Readings in Moral Philosophy”, 1989

Putting aside feminist objections around autonomy, the assumption these philosophers make is that birth is an inconsequential event in the mental life of a newborn, and that a fetus prior to birth has equivalent subjective experience or consciousness before and after birth. This assumption is not supported by the scientific evidence. A careful review of the scientific literature around the onset of consciousness supports the idea that birth marks the first conceivable conscious experience of the newborn. If Boonin is otherwise correct about the moral value of consciousness, it is at birth rather than during the third trimester that personhood begins; more poetically, a woman really does bring a new person into the world at birth.

The scientific research

Relatively few researchers have done extensive work on the emergence of consciousness in fetal and neonatal life. But one of the primary researchers in the field, Hugo Lagercrantz, writes the following on when and how human consciousness emerges:

A simple definition of consciousness is sensory awareness of the body, the self, and the world. The fetus may be aware of the body, for example by perceiving pain. It reacts to touch, smell, and sound, and shows facial expressions responding to external stimuli.

However, these reactions are probably preprogrammed and have a subcortical nonconscious origin. Furthermore, the fetus is almost continuously asleep and unconscious partially due to endogenous sedation. Conversely, the newborn infant can be awake, exhibit sensory awareness, and process memorized mental representations. It is also able to differentiate between self and nonself touch, express emotions, and show signs of shared feelings. Yet, it is unreflective, present oriented, and makes little reference to concept of him/herself. Newborn infants display features characteristic of what may be referred to as basic consciousness and they still have to undergo considerable maturation to reach the level of adult consciousness.

Lagercrantz and Changeux, “The Emergence of Human Consciousness: From Fetal to Neonatal Life”, 2009

Lagercrantz writes that the delivery process itself likely stimulates consciousness in the newborn:

The delivery from the mother’s womb thus causes arousal from a “resting,” sleeping, state in utero. After birth, electrophysiological signs on EEG scalp recordings indicate an intense flow of novel sensory stimuli after birth… In addition, arousal is enhanced by the release from endogenous analgesia possibly caused by removal of the mentioned placental “suppressors” which in utero selectively inhibit neural activity of the fetus…. The catecholamine surge triggered by vaginal delivery may also be critical for the arousal at birth.

Lagercrantz and Changeux, “The Emergence of Human Consciousness: From Fetal to Neonatal Life”, 2009

Lagercrantz’s work lends support to the idea that it is birth, not a certain level of cortical development, that triggers the onset of consciousness. But readers may be concerned by Lagercrantz’s use of the words “almost continuously” with regard to fetal consciousness. Could it be true that the fetus occasionally becomes conscious and then goes back to sleep?

David Mellor investigated this question, writing:

The obvious and critical question is what state late-gestation fetuses are in during the 5% of the time that they are apparently not in REM or NREM sleep? Are the fetuses awake or merely in transition between the two sleep states, and how is an awake state defined?

Mellor, Diesch, et al, “The Importance of Awareness for Understanding Fetal Pain”, 2005

Mellor defines an awake state as “purposeful directed behavior as seen after birth”. His conclusion as to whether the fetuses reach this state is negative, even for the period between REM and NREM sleep. He concludes:

This evaluation of the literature shows that there is no convincing evidence the fetus is ever awake; rather, it supports the concept that the fetus exists in a continuous sleep like state. Evidence suggests that unlike the newborn, noxious or nociceptive stimuli do not cause cortical arousal to an awake state as a defense response…

Mellor, Diesch, et al, “The Importance of Awareness for Understanding Fetal Pain”, 2005

In a later paper, Mellor explains three lines of reasoning for believing that mammalian fetuses are not ever conscious. First:

..fetal EEG patterns and fetal behaviour demonstrate that sleep-like states of unconsciousness are continuously present throughout the last half of pregnancy (Mellor et al., 2005). This is because the continuous undifferentiated EEG patterns, which exhibit a mixture of REM-non-REM features, and the differentiated and alternating REM-non-REM patterns, which appear later and are indistinguishable from those seen during postnatal sleep, are all incompatible with consciousness…

Mellor, Diesch, et al, “Fetal ‘Awareness’ and ‘Pain'”, 2007

Second, endogenous uterine factors support the neuroinhibition of the fetus:

… at least eight fetal, placental and uterine factors with well-demonstrated inhibitory effects on the fetal EEG apparently operate throughout the last half of pregnancy.

Mellor, Diesch, et al, “Fetal ‘Awareness’ and ‘Pain'”, 2007

Finally, in contrast to the neonate, the fetus doesn’t wake up due to unpleasant stimuli:

Third, the neurologically mature fetus is not arousable from non-REM or REM sleep-like states to conscious wakefulness by potentially noxious interventions such as induced hypercapnia (high carbon dioxide), sounds loud enough to cause intense auditory pain and surgery-induced tissue damage (Mellor et al., 2005). This contrasts strikingly with the situation after birth where these potent stimuli do arouse the sleeping young to conscious wakefulness.

Mellor, Diesch, et al, “Fetal ‘Awareness’ and ‘Pain'”, 2007

The conclusion of all of this research is that, contra Singer, birth is of central importance to any theory that holds consciousness as the fundamental moral issue. Even after the neurological structures necessary for consciousness have developed, the release from placental neuroinhibitors and the uterine environment are still required for consciousness to actually occur.

Pro-life Scientific Objections

Fetal Dreaming

A few pro-life commentators have suggested that, even if the fetus is in a sleep state throughout pregnancy, later abortions would still be wrong because the fetus may be dreaming, and that fetuses have “dream experiences” and possibly even “dream desires” that ought to endow personhood. Yet this hypothesis ignores the research done on the development of dreaming in children. David Foulkes, in his work “Children’s Dreaming and the Development of Consciousness“, writes:

…these findings suggest that dreaming is a symbolic production neither generally shared with other animals nor generally present in early childhood, and that reflective consciousness itself, therefore, is neither generally shared with other animals nor generally present in early childhood.

Foulkes, “Children’s Dreaming and the Development of Consciousness”, 1999

Other research on dreaming has generally supported the idea that infants do not dream in the way adults do, and that dream content is informed by memories formed during an awake state. Given that dreaming seems to develop throughout childhood, and that children themselves are unlikely to dream before about age two, there is little support for the theory that fetuses dream in utero, as other researchers have noted:

After birth, dream content is informed by recent and more remote memories. Longitudinal studies of dreaming in children by retired American psychologist David Foulkes suggest that dreaming is a gradual cognitive development that is tightly linked to the capacity to imagine things visually and to visuospatial skills. Thus, preschoolers’ dreams are often static and plain, with no characters that move or act, hardly any feelings and no memories. What would dreaming be like for an organism that spends its time suspended in a sort of isolation tank, with no memories, and no way to imagine anything at all? I wager that the fetus experiences nothing in utero; that it feels the way we do when we are in a deep, dreamless sleep.

Christof Koch, “When does Consciousness Arise in Human Babies?”, 2009

Fetal Pain

Some pro-life activists have objected to abortion on the grounds that the fetus may feel pain during the abortion procedure. Whether and how fetuses could feel pain is hotly debated; some researchers have suggested that fetal pain may be morally relevant in the case of abortion even if the capacity for reflective pain experience does not yet exist. Pro-life groups have referenced rare cases of anencephalic fetuses like that of Andrew Vandal to point out that pain experience may be possible without a cerebral cortex.

Feminist groups have argued that concerns about fetal pain with respect to abortion are selective and insincere. If fetal pain is a morally relevant and important issue that ought to be addressed, one might expect an interest in alleviating fetal pain when the fetus’ head is compressed during childbirth, yet there seems to be little interest in alleviating this potential pain.

Providing experimental fetal analgesia/anesthesia may compromise the health and safety of the pregnant person…these risks are unjustified given the lack of sound scientific evidence confirming the capacity of the fetus to feel pain while in utero…Analgesia is not always recommended in the event of potential painful events. For example, we do not use analgesia during the birth process when the baby’s head is compressed to pass through the cervix.

Later Abortion Initiative, 2018

Whether truly scientifically supported or not, concerns about fetal pain during abortion seem to have little to do with the question of whether abortion can be morally permissible. At most, concern over fetal pain might give reason to use fetal analgesia before an abortion procedure, to ensure there is never even a brief experience of pain in the fetus. Pressure to mandate fetal analgesia, however, ought to be balanced with careful studies of risks to the woman involved and honest assessments of the real risk for fetal pain.