A Defense of the Unborn Person

Abstract

The classic defense of abortion presented by philosopher Judith Jarvis Thomson has profoundly influenced a half-century of scholarship. Thomson’s bold approach assumes, arguendo, that an unborn human is a person and claims that abortion is nonetheless just in some cases. Thomson’s essay and its progeny have achieved heightened importance following Dobbs v. Jackson Women’s Health Organization, in which the United States Supreme Court, overruling Roe v. Wade and Planned Parenthood v. Casey, held that there is no constitutional right to an abortion. The return of abortion regulation to legislative bodies demands urgent attention to the philosophical, jurisprudential, and policy arguments on the justness of abortion.

Primarily reasoning within Thomson’s rights-based framework, general philosophical assumptions, and internal logic, and adopting her style and assumption of fetal personhood, this Article critically examines the broad argument of Thomson’s influential essay and many of the most important analyses of her central claims. Contrary to the directional thrust of Thomson’s argument, fundamental principles of justice compel the conclusion that abortion is unjust in the vast majority of pregnancies. A proper analysis of the nature of the rights in question, the assumption of the risk of pregnancy by the biological parents of the unborn human, and the dictates of the equal justice principle require rejection of Thomson’s defense in most cases. With highly limited exceptions, abortion is unjust.

However, to justly assign the scope of relevant rights between the unborn person and her pregnant parent so as generally not to permit abortion is insufficient. A just society, one committed to the principle of equal justice, must ensure that society fairly allocates the burdens of pregnancy. A just legal and political system must support the mother institutionally and financially in her own right and on behalf of her unborn child. This conclusion holds in all pregnancies and is especially compelling when pregnancy results from a sexual assault and when the unborn person’s parents lack adequate financial resources. The same principles of justice that protect the unborn person against abortion compel this institutional and financial support of her mother. Additional implications follow.

Keywords: Abortion, Jurisprudence, Fetus, Dobbs, Unborn, Pregnancy, Thomson, Pro-Life, Rawls, Justice