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“If You Prick Us, Do We Not Bleed?”: Of Shylock, Fetuses, and the Concept of Person in the Law

Published online by Cambridge University Press:  28 April 2021

Charles H. Baron
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The focus of the abortion debate in the United States tends to be on whether and at what stage a fetus is a person. I believe this tendency has been unfortunate and counterproductive. Instead of advancing dialogue between opposing sides, such a focus seems to have stunted it, leaving advocates in the sort of I did not—You did too impasse we remember from childhood. Also reminiscent of that childhood scene has been the vain attempt to break the impasse by appeal to a higher authority. Thus, the pro-choice forces hoped they had proved the pro-life forces wrong by having had the Supreme Court of the United States decide in Roe v. Wade that a fetus is not a person for purposes of the fourteenth amendment. Now the pro-life forces are trying to prove the pro-choice forces wrong by passing legislation or a constitutional amendment that declares a fetus to be a person after all

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Law, Medicine and Healthcare , Volume 11 , Issue 2 , April 1983 , pp. 52 - 64
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Copyright © American Society of Law, Medicine and Ethics 1983

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References

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For example, I was appointed counsel for a fetus in one case where a maternal grandmother sought authority to consent to an abortion for her daughter who was a long-term inmate of a mental institution. Out of an abundance of caution, the judge wanted the record to reflect advocacy for the fetus in addition to that which was provided for the mother. Ultimately, the court decided that, though mentally ill, the mother should be allowed to refuse an abortion since she was not proved to be incompetent to make that decision. In re Culotta, , Middlesex Probate No. 522761 (Mass. November 19, 1979).Google Scholar
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I have argued elsewhere the value of the common law courts in seeking answers to these questions. See Baron, C., Medical Paternalism and the Rule of Law: A Reply to Dr. Relman, American Journal of Law & Medicine 4:337 (1979); Baron, C., Euthanasia Decisions in the Courts: The Post-Saikewicz Experience, in Genetics and the Law II (Milunsky, Annas, , eds.) (1980) at 141.Google Scholar
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Because some states have not enacted abortion laws to replace those which were struck down as unconstitutional by Roe v. Wade, “abortion on demand” is available in those states through the entire period of pregnancy. The occasional abortion of a viable fetus which takes place in such states can produce very discomfiting results. For example, a storm of controversy developed in June 1982, over a 26 week old fetus which had died 27.5 hours after it was aborted in a Wisconsin hospital. Suggestions were made that the civil rights of the fetus had been violated by performing the abortion in a facility which did not have equipment for the care of premature infants. See U.S. Pledges Probe of UW Abortions, Madison Capital-Times, June 2, 1962, at 4, col. 1.Google Scholar
Roe v. Wade, supra note 1, at 165. This is only one of several places where the Court shows a distressing tendency to delegate governmental power to physicians. Here the doctor is given discretion to decide whether an abortion in the third trimester is “necessary” for the preservation of the “health” of the mother. But what degree of diminution of health of the mother will outweigh the life of a healthy, third trimester fetus? Will indications of the necessity for a cesarean section be enough? See Jefferson v. Griffin Spalding C'ty Hosp. Auth., 274 S.E.2d 457 (Ga. 1981). What about threatened impairment of mental health where changed circumstances make the mother no longer want the child? Roe seems to leave these “choice of evils” determinations entirely to the medical community. In a later case, Colautti v. Franklin, 439 U.S. 379 (1979), the Court delegates to the individual physician the power to decide whether or not a particular fetus is “viable”—not only for determining the medical facts regarding probability of survival outside the mother, but also for determining the governmental question of what degree of probability of survival brings in to play the state's “compelling interest” in protecting fetal life. Id. at 391–96. Too often overlooked by pro-choice advocates is the fact that Roe does not recognize a woman's right to an abortion; it recognizes power in the physician to prescribe an abortion for his patient. As the Court says of its holding in Roe:Google Scholar
The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention. Up to these points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician. If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intraprofessional, are available.Google Scholar
Roe v. Wade, supra note 1, at 166. This is true even for the period of the first trimester: “For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.” Id. at 164. This deference to doctors on the part of Justice Blackmun, who wrote the Court's opinions in both Roe and Colautti, has not escaped the notice of the other members of the Court:Google Scholar
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Woodward, B. Armstrong, S., The Brethren (1976) at 146. Equally patent was the source of Blackmun's willingness to defer to doctors. Before coming to the Court, he had been for ten years general counsel to Minnesota's famous Mayo Clinic.Google Scholar
At Mayo, he had watched as Doctors Edward C. Kendall and Philip S. Hench won the Nobel Prize for research in arthritis. He rejoiced with other doctors after their first successful heart bypass operation, then suffered with them after they lost their next four patients… . He grew to respect what dedicated physicians could accomplish. These had been terribly exciting years for Blackmun. He labeled them the best ten years of this life.Google Scholar
If a state licensed a physician to practice medicine, it was entrusting him with the right to make medical decisions… . To completely restrict an operation like abortion, normally no more dangerous than minor surgery, or to permit it only with the approval of a hospital committee or the concurrence of other doctors, was a needless infringement of the discretion of the medical profession.Google Scholar
Blackmun would do anything he could to reduce the anxiety of his colleagues except spurn the assignment [to write the opinion in Roe v. Wade]. The case was not so much a legal task as an opportunity for the Court to ratify the best possible medical opinion.Google Scholar
Id. at 174–75. In essence, the doctors whom Blackmun respected so highly were to take over from the state governments the job of making the “choice of evils” decision inherent in abortion. This role they would perform on a case-by-case basis by influencing and, perhaps in some cases, blocking the mother's decision. Thus, after the Court recognizes a right of privacy covering the mother's decision and lists the cost factors the state would impose on the mother if it denied the abortion choice altogether, the Court concludes: “All these are factors the woman and her responsible physician necessarily will consider in consultation.” Roe v. Wade, supra note 1, at 153.Google Scholar
This distressing tendency to want to leave to physician philosopher-kings tough ethical questions which the courts find “too hot to handle” is not restricted to the Supreme Court or the issue of abortion. In regard to the issue of euthanasia for terminally ill patients, some courts have expressed a willingness to delegate to doctors the power to decide what circumstances justify cessation of life-prolonging treatment. The trial judge in the famous Karen Quintan case, for example, acceded to medical judgment on the question of whether Karen's respirator was to be turned off, saying: “The morality and conscience of our society places this responsibility in the hands of the physician. What justification is there to remove it from the control of the medical profession and place it in the hands of the Court?” In re Quinlan, 348 A.2d 801, 818 (N.J. Super. 1975). For their part, most doctors have seemed eager to have such matters labelled “medical questions” so that involvement of courts in medical practice can be kept to a minimum. See Relman, A., The Saikewicz Decision: A Medical Viewpoint, American Journal of Law & Medicine 4: 223 (1978). However, like Justice White, some courts have openly rejected Justice Blackmun's “medical question doctrine.” Thus, the Supreme Judicial Court of Massachusetts has held that termination of life-prolonging care decisions are to be made by the courts, concluding:Google Scholar
We do not view the judicial resolution of this most difficult and awesome question—whether potentially life-prolonging treatment should be withheld from a person incapable of making his own decision—as constituting a “gratuitous encroachment” on the domain of medical expertise. Rather, such questions of life and death seem to us to require the process of detached but passionate investigation and decision that forms the ideal on which the judicial branch of government was created. Achieving this ideal is our responsibility and that of the lower court, and is not to be entrusted to any other group purporting to represent the “morality and conscience of our society,” no matter how highly motivated or impressively constituted.Google Scholar
Superintendent of Belchertown School v. Saikewicz, 370 N.E.2d 417, 435 (1977). See generally Baron, C., Medical Paternalism and the Rule of Law: A Reply to Dr. Relman, American Journal of Law & Medicine 4:337 (1979); Baron, C., To Die Before the Gods Please: Legal Issues Surrounding Euthanasia and the Elderly, Journal of Geriatric Psychiatry 14:45 (1981).Google Scholar
See Hart, H. Sacks, A., The Legal Process: Basic Problems in the Making and Application of Law (Tent. ed. 1958) at 665-67. Because the focus of this paper has been on the question of personhood, I have not directly criticized the Court's argument that the Roe decision was mandated by the Court's “discovery” that the Constitution protects a woman's choice of an abortion as part of her “right to privacy.” For criticism of that argument in terms that I would embrace, see Ely, J., The Wages of Crying Wolf: A Comment on Roe v. Wade, Yale Law Journal 82: 920 (1973). Dean Ely does not oppose abortion but does oppose the Court's anti-majoritarian imposition of its own abortion “statute” on the fifty state legislatures:Google Scholar
Let us not underestimate what is at stake: Having an unwanted child can go a long way toward ruining a woman's life. And at the bottom Roe signals the Court's judgment that this result cannot be justified by any good that anti-abortion legislation accomplishes. This surely is an understandable conclusion—indeed it is one with which I agree—but ordinarily the Court claims no mandate to second-guess legislative balances, at least not when the Constitution has designated neither of the values in conflict as entitled to special protection. But even assuming it would be a good idea for the Court to assume this function, Roe seems a curious place to have begun. Laws prohibiting the use of “soft” drugs or, even more obviously, homosexual acts between consenting adults can stunt the “preferred life styles” of those against whom enforcement is threatened in very serious ways. It is clear such acts harm no one besides the participants, and indeed the case that the participants are harmed is a rather shaky one. Yet such laws survive, on the theory that there exists a societal consensus that the behavior involved is revolting or at any rate immoral. Of course the consensus is not universal but it is sufficient, and this is what is counted as crucial to get the laws passed and keep them on the books. Whether anti-abortion legislation cramps the life style of an unwilling mother more significantly than anti-homosexuality legislation cramps the life style of a homosexual is a close question. But even granting that it does, the other side of the balance looks very different. For there is more than simple societal revulsion to support legislation restricting abortion: Abortion ends (or if it makes a difference, prevents) the life of a human being other than the one making the choice.Google Scholar
Id. at 923–24. Other constitutional scholars have taken similar positions with respect to Roe. As one text has noted:Google Scholar
The Supreme Court abortion rulings provoked immediate criticism. Some of the most severe indictments of those decisions came from unexpected sources—pro-abortion writers. Criticism was aimed not only at what the Supreme Court had done (i.e., the substance of the new constitutional abortion doctrine), but also at how it had done it (by resort to the doctrine of substantive due process), and why (the legal arguments given in the official opinion to justify the result reached by the Court).Google Scholar
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