How the Danziger Story Advances the Abortion Debate in America: Actual Futures, Moral Status, and Common Ground
It has become commonplace in recent years to note that the ‘abortion debate’ in America has become entrenched. Indeed, there seem to be few issues in contemporary politics that elicit less common ground than the abortion debate finds in its stalwartly pro-choice and pro-life opponents. It is just as common, if not more so, these days to speak of the ‘attack on Roe v. Wade’ or ‘the attack on women’s rights,’ particularly in light of recent findings that more abortion restrictions were enacted between 2011 and 2013 in the U.S. than in the entire previous decade. Now more than ever, especially for the pro-choice movement, it is necessary to conceptualize novel approaches to the questions of the beginning, end, and quality of life that sit at the heart of the abortion debate. Here I examine a recent case and how it has the potential to advance this debate.
In an article in Slate earlier this month, Phoebe Day Danziger shares the story of her and her husband’s decision to terminate their pregnancy at 19 weeks as “an end-of-life care plan for [their] son.” A third year medical student at the time and a prospective neonatologist, Danziger was all too aware of the potential outcomes for her fetus when the anatomy scan revealed serious abnormalities; set off by a bladder outlet obstruction, the fetus exhibited serious kidney damage that almost certainly had severely hindered lung development. In discussions with doctors and counselors, it became clear that even if the fetus was successfully carried to term and delivered, the child would most likely require mechanical ventilation, dialysis followed by a kidney transplant in his first few years, and palliative care in the absence of any aggressive options, due to the severity of his condition. The fetus was, in other words, already at the beginning of an agonizing end of life.
Based on these considerations, Danziger and her husband opted for an abortion, what they considered to be “the most humane, comfortable, and loving end-of-life experience we felt we could facilitate.” Describing a group of women who have similarly aborted for medical reasons, she notes that “there is not an easy language for situations like ours,” for women who desired and planned to be mothers – who identify as mothers nonetheless – but who chose to terminate their pregnancies for serious medical concerns:
Opponents of abortion may argue that terminating my pregnancy violated our baby’s human rights and that if anything, we should have continued the pregnancy and opted for palliative care at birth. The more surprising and hurtful responses, however, have been from people like my staunchly pro-choice friend who told me that she was jarred by my use of the word son to describe our fetus, as though the moral basis for abortion depends on denying the fetus any semblance of humanity, no matter how close it is to the point of viability, no matter how the woman herself chooses to define her relationship to the fetus.
This rejection of Danziger’s choice by both the right and the left, particularly the denial of Danziger’s emotions and self-identification by the pro-choice discourse, is perhaps one of the greatest but least recognized failings of the current debate. It is also, perhaps, the most promising starting point for transforming that debate, for moving beyond the so-called entrenchment.
At this point, it is useful to step back a bit and consider the relation between Danziger’s case and an earlier attempt by Elizabeth Harman, a philosopher at Princeton University, to work through similar, seemingly paradoxical intuitions and decisions. Harman, in a 2000 article in Philosophy and Public Affairs, describes the central apparent paradox using the hypothetical Katherine, who believes both 1) that early fetuses lack moral status and thus may be permissibly aborted and 2) that an early fetus of a couple that wants a child is the appropriate object of love and must therefore have some moral status. Harman suggests the ‘Actual Future Principle’ in the hopes of resolving that tension between what she considers to be two valid intuitions: “An early fetus that will become a person has some moral status. An early fetus that will die while it is still an early fetus has no moral status.” (Crucially for Harman’s purposes but not – as I will explain – ours, ‘early fetus’ is defined as “a fetus before it has any intrinsic properties that themselves confer moral status on the fetus,” thus presupposing that such a period exists.)
Harman’s Principle helps explain why a woman or couple who miscarries after desiring and planning to have a baby is understandably and justifiably upset:
They loved a living being and then that being died; it is a traumatic event. While the fetus lived, the couple was rational to love the fetus, according to the Actual Future Principle, because they had a false belief. They thought that the fetus was the beginning stage of their child. They thought that the very living being in the woman’s womb was identical with their child. If this had been true, then the fetus would have been the kind of thing that is the appropriate object of love: an attitude of love toward the fetus would have been warranted by (and appropriate given) the nature of the fetus. But as it turns out, the fetus was not the beginning of their child; its entire existence lacked any moment of consciousness or experience. It turns out that the fetus did not have any moral status. The couple rightly recognizes the miscarriage as a terrible thing that has happened to them; not only is it traumatic, but now they must start again in their attempt to have a child. However, they should also recognize that the death of the fetus should not be mourned – it should not be treated as the death of a morally significant being – because it turns out that the fetus lacked moral status.
This Actual Future position also explains other strong but puzzling intuitions, like why we think it morally permissible for a woman carrying a preterm fetus to smoke if that fetus will never become a person (e.g. she plans to and actually does abort it) but not if that fetus will actually become a person (e.g. she carries it to term), because in the latter but not the former the fetus has moral status and is thus deserving of certain prohibitions against harm. In common-sense terms, it would be wrong to harm, by smoking or other practices, a fetus that you believed would become a baby and one day a person, particularly if those harms were thought to be serious and long lasting.
Regardless of the trimester or form of termination (‘natural’ or intentional), Harman’s example of miscarriage explains why a woman or couple who ‘loses’ a desired and planned pregnancy may understandably feel grief and anguish, a point that, as Danziger states, is not “comfortable or convenient for the pro-choice narrative.” Why this shying away (or outright rejection) on the part of pro-choice supporters? The fear seems to be that allowing Danziger to identify as a ‘mother’ and to call her fetus her ‘son’ implies some intrinsic moral status that would make abortion morally impermissible. Incidentally, Harman’s argument above demonstrates why that is not the case, how we could simultaneously validate the trauma and gravity of Danziger’s experience of her abortion yet also maintain the view that the fetus that was aborted lacked moral status.
Yet, importantly, it is just ‘incidentally’ for our purposes that Harman’s argument preserves both of these beliefs. The analogy is meant only to illuminate certain features of Danziger’s case, which differs in that the pregnancy was almost in the third trimester and the termination was intentional based on serious medical reasons. Harman, of course, only claims that ‘early fetuses’ lack moral status; a 20-week fetus is not (on many accounts) an ‘early’ fetus and it is plausible that it has certain intrinsic, morally relevant features that Harman’s characterization of an ‘early fetus’ do not. Thus, though Harman is interested in supporting what she terms ‘the very liberal view on the ethics of abortion,’ namely that “Early abortion requires no moral justification whatsoever,” we need not engage the debate on the moral status of the fetus in order to benefit from the analogy: accepting Danziger’s grief is consistent with both positions that posit and deny the moral status of the embryo.
In coming to the metaphorical table, the classic problem of entrenchment in the abortion debate almost always lies in this very abyss: the dispute over the moral status of the fetus. What is transformative about Danziger’s case is that we can proceed without falling into that abyss: we might come to some common ground on the slew of attempts to restrict abortion in the past few years in the U.S. without consideration of the moral status of the fetus.
Consider that Roe v. Wade and Supreme Court cases like Gonzales v. Carhart and Gonzales v. Planned Parenthood allow states to ban certain late-term abortions (after 20 weeks) – generally but not exclusively third trimester abortions (after 26 weeks) – with exceptions only for the life or physical and mental health of the mother. Consider also that state legislatures have recently attempted to remove those exceptions and place the cut off at or before 20 weeks, usually on the basis of claims about the moral status and/or viability of the fetus. What I want to illustrate in what follows is that you have good reason to preserve so-called late term abortions in certain circumstances regardless of your views on 1) the viability and moral status of the fetus and 2) the importance of claims about the physical or mental health of the mother (the respective current starting points of the right and the left in the question of the permissibility of late-term abortions).
Recall Danziger’s alternate future had she chosen and been able to give birth: it was likely that her son would never make it out of the neonatal intensive care unit. Indeed, he would seem to fall into a class of newborns that regularly die after a decision to withhold or withdraw treatment. This class includes infants who have no chance of survival, who have a very poor prognosis within the NICU and a very poor prognosis for quality of life after the NICU, or who are expected to experience a ‘life not worth living’ or a life below a ‘threshold level’ of unbearable suffering (even if expected to survive the NICU). This decision to withhold or withdraw treatment in particularly hopeless situations or for infants that will suffer unbearably seems right. In terms of finding common ground, it also seems acceptable to a more cross-cutting swath than either side of the traditional abortion debate.
If we accept that such end-of-life care decisions that result in the death of the infant are appropriate for newborn infants, it would seem inconsistent to deny that such end-of-life care decisions are appropriate for late-term fetuses, particularly on the pro-life argument that ‘birth’ is an arbitrary distinction between viable, late-term fetuses and newborn infants. Remove, if questions of degree concern you, the particularities of Danziger’s case: consider, with a hypothetical in which it was certain that a fetus once delivered would not be able to breathe on its own ever, the philosophical inconsistency, not to mention practically cruelty (for the mother) and physical pain (for the potential child), of telling the prospective mother that she had to carry it for three to four more months only to watch her child struggle to breath and die at birth.
Since, as Danziger notes, certain conditions like hers can only be detected in the later stages of pregnancy, there are certain cases of hopelessness and/or unbearable suffering that may not be discoverable/discovered until after 20 weeks. Therefore, if we permit (as we should) end-of-life care decisions that result in the death of a newborn infant whose case is hopeless or who will experience unbearable suffering, we ought to permit end-of-life care decisions that result in the death of a late-term fetus that has the same prospects. This would, at the very least, require special exceptions for considerations of the fetus’s actual future as a person as judged by its intentional parents and doctors, similar to the consideration granted to those fetuses that are, actually, born. And there would be strong, practical reasons for thinking that the burden of proof ought to fall on the state to prove that such decisions to abort failed to meet these exceptions, given that the decision would require extensive medical expertise and doctor-parent deliberations, as well as being particularly sensitive for individuals and families.
This is not to say that there are no other strong reasons for opposing the recent abortion restrictions, only that this may be a more fruitful path forward in the abortion debate for the (honestly struggling) pro-choice movement, in its attempts to provide not only convincing arguments to the pro-life contingent, but also arguments that actually convince. It also, returning to Harman’s justification of the experienced trauma of a miscarriage, should alter how the pro-choice movement relates to women like Danziger: that the acceptance of a couple’s understandable grief over the loss of what was believed to be the ‘beginning stage of their child’ need not be tantamount to an admission of fetal personhood. For pro-life supporters, this re-conception posed by Danziger’s story, even granting the moral status of the fetus, forces a reconciliation of previously incongruous views on the treatment of newborn infants and late-term fetuses.
 Phoebe Day Danziger, “A Peaceful Death,” Slate, February 5, 2014, http://www.slate.com/articles/double_x/doublex/2014 /02/abortion_as_end_of_life_care_why_i_chose_a_peaceful_life_and_death_for_my.html.
 Elizabeth Harman, “Creation Ethics: The Moral Status of Early Fetuses and the Ethics of Abortion,” Philosophy and Public Affairs 28 (2000), 311, http://onlinelibrary.wiley.com/doi/10.1111/j.1088-4963.1999.00310.x/abstract.
 Harman, 310.
 Ibid., 316.
 Harman is careful, however, to deny that moral status depends on the mother’s intentions as opposed to the fetus’s actual future, see pg. 318: “The intentions of the woman who carries a fetus are weak, relational properties of that fetus; they are not among the facts that can determine what kind of thing it is.”
 Harman claims that the couple ought not ‘mourn’ the loss of the fetus as one would the loss of a person. The importance of this claim, beyond recognizing that the fetus did not have the moral status of a person, is unclear and seems to rest upon the definition of ‘mourning,’ and how different it is from other experiences of and interactions with grief/trauma. In any case, I do not think the distinction between ‘being upset by the traumatic loss of a fetus’ and ‘mourning’ is central here, so long as the lack of moral status is recognized.
 See Jaideep Singh, John Lantos and William Meadow, “End-of-Life After Birth: Death and Dying in a Neonatal Intensive Care Unit,” Pediatrics 114 (2004), http://pediatrics.aappublications.org/content/114/6/1620.full.pdf.
 See Eduard Verhagen and Pieter J.J. Sauer, “The Groningen Protocol – Euthanasia in Severely Ill Newborns,” New England Journal of Medicine 352 (2005), http://www.nejm.org/doi/full/10.1056/NEJMp058026, and Dominic J. Wilkinson, “A Life Worth Giving? The Threshold for Permissible Withdrawl of Life Support From Disabled Newborn Infants,” The American Journal of Bioethics 11 (2011), http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3082774/.
 I’ve attempted, perhaps awkwardly, to avoid the killing vs. letting die distinction, and I accept that this position will not convince those who hold a strong position on this distinction. However, I assume that not all who hold the traditional pro-life position are so attached to this distinction that they cannot see the similarities between aborting a late-term fetus upon recognition of serious and irreversible medical complications and allowing that same fetus to die as a newborn. I also accept that there is still great disagreement on the situations in which it is morally permissible to withhold treatment, withdraw treatment, pursue only palliative care, or (and especially – again the killing/letting die distinction) actively euthanize newborns. Yet this disagreement presupposes a dynamic discussion that occurs for newborn infants but asymmetrically not for late term fetuses.
 For a discussion of the distinction between convincing arguments and arguments that actually convince, see Michael Dunn et al., “Toward Methodological Innovation in Empirical Ethics Research,” Cambridge Quarterly of Healthcare Ethics 21 (2012): 469-471, http://journals.cambridge.org/action/displayFulltext?type=1&fid=8645977&jid=CQH&volumeId=21&issueId=04 &aid=8645975&bodyId=&membershipNumber=&societyETOCSession=.