by Jean Reith Schroedel [Welcome]
[Home Page]
[Alternate Navigation]

PADNET NOTE: Following is the Executive Summary by the author of an important book that will have a significant impact on the Pro-choice - Anti choice debate.† Dr. Schroedel's book, Is the Fetus a Person? A Comparision of Policies in the Fifty States, Cornell University Press, Ithaca, NY is expected to be published in June 2000.

Is The Fetus A Person?
Dr. Jean Reith Schroedel, November 11, 1999 --In the Bible the fetus is referred to as a sacred "fruit" or "seed," but more recently less positive descriptions, such as non-consensual "trespasser," also have been used to describe the fetus. These radically different perceptions of the fetus have triggered a polarized and strident debate over its moral and legal status within American society. Without a doubt, the sharpest debates over the value of fetal life have revolved around the question of the conditions, if any, under which abortion should be legal. Yet the question of whether the fetus is or is not a person is a central concern in other policy domains, most notably policies concerning pregnant women whose substance abuse could harm the fetus and those dealing with whether third parties (usually husbands or boyfriends who physically assaulted pregnant women) can be charged with murder if their actions result in the death of the fetus.
    The purpose of this research is to study the question of fetal personhood within the context of all state criminal statutes that have the potential to accord personhood status to the fetus. Because the question of fetal "personhood" involves public order in criminal law, as opposed to the settling of private disputes among citizens as occurs in civil law, we believe that criminal law is a more appropriate venue to examine. Moreover, only in criminal law are the coercive powers of the state employed to their fullest extent to enforce the law. For these reasons, the focus of the research is on the three main areas of criminal law which concern fetal "personhood"----abortion statutes, the prosecution of pregnant women for potentially harmful conduct against the fetus, and lastly, third party actions that inflict physical harm upon the fetus. The first two of these actions involve women's behavior which could endanger the fetus. In contrast, third party fetal killing/battering usually involves men, most often husbands or boyfriends who batter their pregnant partners, resulting in death or injury to the fetus. Developments within civil law that have the potential to more broadly affect the legal status of the fetus are also discussed. These include bans on tort actions for damages in "wrongful life" and "wrongful birth" cases and civil detention laws that allow for the involuntary civil commitment of pregnant women whose drug or alcohol use might harm the fetus.
    This research has three broad and inter-related aims. First, because most of the existing scholarship on fetal personhood fails to consider the impact of a shared cultural history on contemporary developments, the initial focus is on to developing a comprehensive history of fetal protection ideas and policies. The history traces the moral and legal underpinnings of existing American laws and practices and shows how cultural interpretations of the fetus have changed over time. The second aim is to compile and analyze case and statutory laws in the fifty states that relate to the fetal protection. The focus is on identifying and analyzing patterns with particular attention being paid to the impact gender and power relations on laws dealing with fetal status. The final aim is to examine more broadly the relationship between state fetal policies and the role of the states in protecting society's most vulnerable citizens. Just as the issue of fetal personhood is relevant to all three aims, so too is women's economic, political and social status.
    This study examines the logical underpinnings of the arguments put forth by the pro-life and pro- choice sides. The two sides' underlying moral imperatives are quite different, generating a distinct set of testable propositions. If the pro-life movement is fundamentally about the protection of society's most vulnerable "persons," the following set of propositions should be upheld.
    Proposition 1a: Anti-abortion states treat the fetus as a "person" in other areas of the law, regardless of the gender and/or status of the individual responsible for harming it.
    Proposition 2a: Anti-abortion states are more likely to adopt policies to combat prenatal drug use and third party killings than other states.
    Proposition 3a: Anti-abortion states are more likely to support a wide range of policies that improve the health and well-being of society's weakest and most vulnerable "persons."
    Conversely, if the women's rights position is correct, the following set of alternative propositions should be upheld.
    Proposition 1b: Anti-abortion states do not consistently treat the fetus as a "person" in other areas of the law.
    Proposition 2b: Differences in abortion laws are a function of women's political, social and economic status, which is generally lower in anti-abortion states than in pro-choice states.
    Proposition 3b: Anti-abortion states are not more likely to support a wide range of policies that improve the health and well-being of society's weakest and most vulnerable "persons."
    A comprehensive data set was developed to test the validity of these propositions. Data on each state's case and statutory laws as of January 1998 was compiled using Lexis/Nexis. The composite measure of the pro-life content of state laws awarded points for each aspect of laws that either constrained the abortion choice or facilitated the choice to continue a pregnancy. Higher scores indicated that the laws reflect the pro-life position while lower scores place fewer restrictions on the abortion choice. The data set also included measures of the degree to which states protect fetal life from prenatal drug exposure and third party fetal killing. A wide range of other variables---public support for pro-life policies, support for women's rights, indicators of women's economic, social and political status, level of prenatal care and measures of state aid to needy children---were also developed.
    Though the moral imperative invoked by pro-life activists is based on the claim that the fetus is a "person" fully deserving protection as a born human being, the data showed that anti-abortion states do not consistently value fetal life. They are far more interested in protecting fetuses from potential harms caused by in utero drug exposure than from third party battering and killings. For example, six of the states with the strongest anti-abortion laws do not make it a crime for a third party to kill a fetus, but prosecute women for prenatal drug offenses. When states are divided into quartiles (strong pro-life, weak pro-life, weak pro-choice, and strong pro-choice) based on the stringency of their abortion statutes, we find that nearly half of the states in the most strongly pro-life quartile do not make it a crime for a third party (in a non-abortion context) to kill a fetus of any gestational age. Among the weak pro-life states, roughly one-quarter have statutes criminalizing third party fetal killing. In fact, the weak pro-choice states are more likely than either the weak or strong pro-life states to criminalize third party fetal killing. Three- quarters of the weak pro-choice states have such statutes. One quarter of the strongest pro-choice states have laws criminalizing third party fetal killing. In short, there was no discernable relationship between the pro-life content of a state's abortion statutes and its willingness to criminalize third party fetal killing. Given that third party actions (i.e., beatings, knifings, shooting etc.) that result in fetal death are the major way that men harm the fetus, this disjuncture between the stringency of abortion statutes and willingness to criminalize third party fetal killings undermines the pro-life argument that their actions are solely motivated by concern for the well-bing of society's most vulnerable members.
    In order to test whether women's rights proponents are correct in charging that pro-life rhetoric about the need to protect unborn babies is simply a smokescreen to cover up a broad-based attack on women's rights, we developed measures of women's political, social and economic status in each of the states. While these measures will not allow us to determine the conscious and unconscious motivations of state legislators, they will allow us to determine whether women's status is inversely related to the restrictiveness of state abortion statutes. If so, that would suggest that the pro-choice side's argument has some validity. With respect to this question, the evidence was quite clear cut. States with pro-life abortion laws consistently accorded lower political, social, and economic status to women. The two measures of women's social status (women's educational levels and whether the state had laws mandating insurers to cover minimum hospital stays after childbirth) were inversely related to the stringency of state abortion laws. The indicators of women's political status (the percentage of female state legislators and an index of women's rights laws) are also negatively related to the pro-life content of abortion laws, but these were not statistically significant. Finally, the economic status of women (as measured by earnings ratios of female to male workers, percentage of women in managerial and professional occupations, percentage of businesses owned by women, and the percentage of women in poverty) was consistently lower in the pro-life states.
    Since the strength of the fetal rights position is its moral imperative that we, as a society, must protect and care for our weakest and most vulnerable "persons," it makes sense to examine whether anti-abortion states consistently exhibit this regard for human life. Is this rhetoric only invoked when women's actions harm or potentially harm the fetus or is there a consistent commitment to aiding society's weakest and most vulnerable members. To test this proposition we picked the group which most closely resembles fetusesóchildren. The applicable indicators are divided into three categories: 1. general measures of infant health, 2. indicators of state responsiveness to the needs of particularly vulnerable infants and children and 3. a comprehensive indicator of overall state support for children as a class. With respect to the first group of variables, we found no statistically significant relationship between the general measures of infant health (e.g., percentage of babies born to women who got adequate prenatal care and the percentage of low birth weight babies) and the stringency of abortion laws. With respect to the second indicator, pro-life states were far less likely than pro-choice states to provide support for the poorest and most needy children. On a per child basis, these states provide less funding for the adoption of special needs children and for foster care. Welfare payments also are lower in pro-life states than in pro-choice states. Also on a per child basis, pro-life states spend lower amounts on all forms of assistance to poor children. They also provide less support for children in general as measured by spending per pupil on K-12 education. Basically, the evidence support the pro-choice claim that their opponents' concern the weak and vulnerable stops at birth. Pro-choice states provided far more support for needy children than did the pro-life states.
    On all three of the propositions, the evidence was generally consistent with the explanations put forth by the pro-choice side. Although there was virtually no support for the pro-life side, we are not denigrating the sincerity of pro-life lawmakers who attribute their anti-abortion actions to a desire to save unborn babies. It is possible that many of these people are unaware of the effect of some of their other beliefs on policies toward born and unborn children. For example, the belief that women should be primarily responsible for the welfare of children may lead them to overlook the ways that male actions harm the fetus. Of equal importance is the finding that pro- choice states as a class provide higher levels of support to needy children. This should put to rest the notion that equates being pro-choice with being anti-children.
Reprinted with permission from Dr. Jean Reith Schroedel, Associate Professor, School of Politics and Economics, Claremont Graduate University.