Abortion Ethics and the Texas Heartbeat Law

Fresno Bee, September 12, 2021

Abortion is a contentious moral and political issue. The new law in Texas, “The Texas Heartbeat Act,” gives us a lot to think and argue about.

One issue is the law’s novel “enforcement” mechanism. The law does not put the state directly in charge of policing abortion. Rather, that is left up to what the law calls “a private civil right of action.” Citizens may direct lawsuits against abortion providers.

Critics have pointed out that this is a kind of vigilante enforcement, where ordinary people are empowered to punish abortion. There will likely be legal challenges to that enforcement mechanism.

The deeper moral question is about where we draw the line that establishes the moral worth of a fetus. The Texas law draws that line around so-called fetal heartbeat. The law states that “fetal heartbeat has become a key medical predictor that an unborn child will reach live birth.” It defines fetal heartbeat as “the steady and repetitive rhythmic contraction of the fetal heart within the gestational sac.”

Critics have pointed out that while rhythmic activity is detectable at about six weeks, this is not a heartbeat. There are no heart valves at that stage of development.

You might think that the question of fetal heartbeat would be easy to answer. But is there a “heartbeat” before the heart is fully formed? Furthermore, why does heartbeat matter?

This is connected to questions at the other end of life. Is a person whose heart has stopped beating really dead? Hearts can be re-started and even transplanted. And blood can be pumped artificially.

So, heartbeat is not the only thing that matters in thinking about the moral status of a body. Indeed, there are deep disagreements about how we determine that moral status.

Some opponents of abortion draw the line earlier than six weeks, claiming that “life begins at conception.” This perspective claims that when there is a unique set of DNA — when sperm and egg unite — a unique person is created. The “life begins at conception” idea opposes abortion as well as “contraception” that prevents fertilized eggs from implanting in the uterus.

On the other hand, some defenders of abortion argue that what matters is “viability,” the ability of a fetus to live outside of its mother’s womb. Others focus on brain development. The brain-based view may be fleshed out in various ways. Perhaps what matters is sentience, the ability of a fetus to feel pain. Or maybe what matters is the development of complex neurological systems capable of desire, intentionality, and higher-thought.

Viability and complex brain development happen much later than six weeks.

A further consideration is what happens when there is a conflict of goods and values. Some pro-choice arguments will admit that a fetus has some moral value while also maintaining that the mother’s autonomy can trump that value. Sometimes this is articulated as saying that an actual person’s rights outweigh the emergent rights of a merely potential person.

Furthermore, there is the legal question of what we should do when there are fundamental disagreements about all of this. In Texas, the state has decreed that what matters is the so-called heartbeat. But what if a woman in Texas disagrees with that? She may think that brains matter.

Or she might think, as they used to in the old days, that what matters is “quickening” — the moment when a woman feels the fetus move within her. Or she may believe that a fetus becomes a person when it draws its first breath at the moment of viability.

How can we restrict abortion without violating a woman’s right to decide for herself about fundamental questions of personhood, ensoulment, and the value of her own autonomy?

Abortion is contentious because we disagree about the answer to that question and the other questions mentioned here. These disagreements are not going away. They cannot be solved by science and medicine. Nor does yelling and protesting resolve them.

These are metaphysical and moral disagreements, involving disputes about the meaning and value of life. As we continue to argue about abortion, we ought to try our best to understand the depth of these disputes and to think critically about our disagreements.

Common Morality and Moral Agreement

Let’s not forget our common beliefs

Andrew Fiala

Fresno Bee 2012-11-17

Some people were not happy with the outcome of the 2012 election. Rocker Ted Nugent called it “spiritual suicide.” Tens of thousands of citizens in some states have signed petitions asking for their states to secede from the Union. And Matthew Staver, dean of the Law School at Jerry Falwell’s Liberty University, explained: “Millions of Americans looked evil in the eye and adopted it … Abortion, same-sex marriage, and immorality carried the day.”

Some states legalized marijuana. Some other states legalized same-sex marriage. And a Democrat was re-elected president. It’s not clear that there is much new, or especially evil here. Ten years ago, the Supreme Court ruled that anti-sodomy laws were unconstitutional. Marijuana has been available for “medical use” in California since 1996. And abortion has been legal for 40 years.

Despite our disagreements about these issues, we tend to forget how much we agree upon. Consider, most importantly, the fact that the election and transition of power proceeded peacefully. We take that for granted. We also take it for granted that most of us agree most of the time about what philosopher Bernard Gert called our “common morality.”

Gert maintained that morality could be reduced to the basic idea of minimizing harm to others. He pointed out that no one thinks that it is morally acceptable to hurt someone simply because you don’t like him. While this sounds trivial, it is the broad heart of our common moral agreement.

It is remarkable, for example, that no candidate or referendum advocated harm to others out of malice or hatred. It wasn’t always so. In the bad old days, it was possible to advocate harming others based upon mere dislike. Racism is the idea that some others can be harmed simply because we don’t like them. But no one in American public life can get away with advocating racist ideas today.

Even those who disagree about homosexuality, marijuana and abortion would most likely agree that freedom matters. No one should be forced into a homosexual relationship. No one should be forced to smoke pot. And no one should be forced to have an abortion.

The abortion question is complicated by the question of the moral status of the fetus — and yes that is a tough question. But if a mother were forced to have an abortion, we would all agree that this was wrong.

It is easy to forget our agreements because we tend to focus on our disagreements. But our common morality becomes obvious when we think about our common ideas about a variety of issues.

Consider women’s rights. We would agree, I hope, that forced marriages and honor killings are wrong. That’s not true in other parts of the globe, where girls are forcibly married and murdered for dishonoring their families. Perhaps this shows us that our “common morality” is not common to all cultures. Much more needs to be said about cross-cultural standards and universal human rights.

A further problem is that our common morality does not extend in the direction of charity. While we agree about minimizing harm, we do not agree that there is a duty to assist those in need.

Gert’s idea of common morality is fairly modest. He only thinks that we have a duty not to harm others. But this does not mean that we have a duty to help them. Of course, people are free to give their money to help others. But the common morality does not require charity. This common morality may not be very useful for dealing with the problem of poverty.

Despite the talk of secession and evil, we will most likely continue to expand our agreement about the need for liberty with regard to activities that do not harm others. But we will continue to disagree about whether there is a duty to help. And we will continue to disagree about specific cases — such as about the moral status of the fetus.

We should not let our disagreements cause us to forget our general agreement that it is wrong to deliberately inflict harm on another simply because you do not like her. And we should not forget that in some parts of the world such ideas are not yet common.