Ken Matheson, St. Francis Xavier University

It was a pleasure to read this well-crafted essay. The author’s conclusion that terminating a pregnancy earlier rather than later minimises moral harm, seems to be a reasonable moral position, however, I do not find that the author’s argument provides strong support for the conclusion. The argument is based on two claims, a fetus has rights, and that the Roe v. Wade decision established that there is a point in fetal development when the fetus becomes morally considerable, therefore justifying state action, and I believe that both claims are unfounded.

The author argues that the moral worth of a decision to terminate a pregnancy lies in the least infringement of the rights of the mother and the fetus and that the right to life carries more weight than the right to liberty. The argument rests on the author’s claim that “[a fetus] almost certainly does acquire rights at some point, otherwise no one would have rights.”1 However, this conclusion does not follow from its premise. There is no point at which a fetus acquires rights in virtue of being a person. Judge Haynsworth, citing Roe v. Wade in the majority opinion for the panel in Floyd v. Anders, writes: “Indeed, the Supreme Court declared the fetus in the womb is neither alive nor a person within the meaning of the Fourteenth Amendment.”2 Consequently, a fetus does not have a right to life, liberty, property and equal protection under the law as specified in the Fourteenth Amendment. When a viable baby is delivered of its mother, the baby is a person within the meaning of the Fourteenth Amendment and has the rights so described. However, at the point of deciding to terminate a pregnancy, the fetus has no rights. The author’s proposed moral calculus considers the moral worth of a fetus’ rights to life and liberty, neither of which accrue to a fetus, and therefore, the moral calculus cannot work as a guide to making an ethical decision about terminating a pregnancy.

The author claims that “[m]ore importantly, in both Roe v. Wade and Planned Parenthood v. Casey, the standard of fetal viability is used as a stand-in for when

1. Roe v. Wade and Decisions Under Uncertainty, 9 2. Floyd v. Anders, 440 F. Supp. 535 (D.S.C. 1977), section III, https://law.justia.com/cases/federal/district-courts/FSupp/440/535/1817339/

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Response to Jake Turner 20

the fetus becomes morally considerable, therefore justifying state action.” I think the author is making a charitable interpretation of the concept of fetal viability expressed in Roe v. Wade. My reading of the court’s decision is that fetal viability is a limitation on the state’s ability to act rather than a justification for state action. The state is prohibited from acting prior to fetal viability, and if the state has an interest in potential life (and there is no suggestion in Roe v. Wade that the state has such an interest), then the state can act to protect a fetus only after it is potentially viable outside the womb.

I don’t find anything in Roe v. Wade that provides a moral foundation for state intervention in a woman’s decision to terminate a pregnancy.