The Hand As Emblem Of Human Identity: A Solution To The Abortion Controversy Based On Science And Reason

Author:	Donald Hope JD, MSW
Subjects:	Abortion Law and Legislation United States Cases (Other articles) Abortion United States (Other articles) Roe v Wade (Other articles)
Issue:	Volume 6, Number 1 (March 1999)
Category:	Comment

Contents

• Analyzing Pro-Life and Pro-Choice Arguments
• A Legal Standard Grounded in Science
  • The concept of viability
  • An alternative biological dividing line
  • The human hand
  • The hand is the most basic tool
  • References to the hand in the culture of the law
  • The development of the hand-brain complex in the fetus
• Advantages and Objections to Using the Embryo-Fetus Distinction as a Legal Standard
  • Advantages - It is a reasonable standard
  • Objections - Abortion at any stage of development is morally wrong
  • Objections - The proposed scheme of protecting fetuses is anti-choice and would severely limit the constitutional abortion right
• Roe and ontogeny
• Changing the Standard
  • Compelling state interest
  • Overruling Roe
• Conclusion
• Notes

Analyzing Pro-Life and Pro-Choice Arguments

1. The abortion debate rages in America more than twenty years after the Supreme Court of the United States decided Roe v. Wade[1]. The pro-life and pro-choice camps are bitterly divided. The deep division, moreover, highlights the internal contradictions in each side's reasoning. Anomalies appear on the front pages of the newspaper. Pro-choice proponents, who advocate a wide range of individual freedom, condemn and denounce those who do not share their views as unenlightened religious zealots and agents of the patriarchal oppression of women. Pro-life extremists, who claim to defend the sanctity of every human life, have brutally murdered physicians and clinic receptionists. The debate has become so polarized that reasonable people cannot disagree without becoming disagreeable.[2]
2. In the voluminous literature about abortion, the biological facts are often distorted. For example, the word "fetus" is routinely misused. Otherwise knowledgeable authors often write about the fetus "from the moment of conception." [3],[4],[5] This usage is incorrect. The fetal stage does not begin until after the eighth week of gestation.[6] Before this time there is not a fetus, but an embryo. This verbal distinction is important and represents a fact of ontogeny, or development, recognized long before Roe was decided. The word embryo derives from Greek, "to swell or teem within" [7], and refers to the initial stages of development after implantation in the uterus (weeks 2-8 post-conception) that are marked by rapid growth and dramatic changes in form as the proto-human progresses from a microscopic ball of cells, through stages of folding and differentiation to become a complex organism comprised of various organ systems. The word fetus, from Latin meaning "young one or offspring" [8] refers to the stage that begins when the embryo has developed all of its internal organs and has attained the exterior form of a human being.[9]
3. It is important at the outset of this paper to clarify this difference between the terms embryo and fetus. This fundamental confusion of terminology illustrates the general confusion about the biological substrate of the abortion controversy as lawyers, judges, and moral philosophers, from literary rather than scientific backgrounds, grapple with one of nature's deepest mysteries.
4. Each side in the abortion debate makes compelling arguments and each side defends questionable propositions. The pro-choice arguments are most persuasive when referring to the early, embryonic, stages of development but are much less convincing when applied to fetal life. Conversely, pro-life reasoning applies most forcefully to fetuses but runs into serious difficulty when it is applied to embryonic life. The country is polarized, caught on the horns of a dilemma that seems insoluble.
5. The pro-choice argument maintains that women have a fundamental right of privacy in the area of reproductive choice that derives from the Fourteenth Amendment's due process clause. Pregnancy profoundly changes a woman's physiology and life choices, deeply held values of individual freedom and personal autonomy hold that she should have the liberty to choose whether or not to bring a pregnancy to term rather than have this choice circumscribed by the state. Sarah Weddington, the plaintiff's attorney in Roe, eloquently made this point in her first argument to the Supreme Court:

"Finally I was given a few minutes to point out in the most passionate yet professional way I could the varied impacts of pregnancy on a woman's life. I stressed that legal abortion in early pregnancy is eight times safer than carrying a pregnancy to term. I concluded that portion of my presentation by saying that to a woman, pregnancy is perhaps the most determinative aspect of her life: 'It disrupts her body, it disrupts her education, it disrupts her employment, and it often disrupts her entire family life. And...because of the impact on the woman, this certainly, in as far as there are any rights which are fundamental, is a matter...of such fundamental and basic concern to the woman involved that she should be allowed to make the choice as to whether to continue or terminate her pregnancy.'" [10]

6. The pro-choice argument goes on to point out that no method of birth control is 100% reliable and contraceptive failure exposes many women to unplanned pregnancy. Since women bear the burden of pregnancy and the long term responsibility of caring for children, they should be the ones to make the moral choice as to whether to carry a pregnancy to term or terminate it, not the state.
7. The pro-choice position also points out that pregnancy may involve substantial health hazards. They point to the high morbidity and mortality of illegal abortion in the United States in the era before Roe and the current high rates in Latin American countries where abortion is illegal. Abortion, in fact, is the leading cause of death of women of child-bearing age in Latin America.[11] Pregnancy occurs within a woman's body and creates profound physiologic changes. In consequence, the basic right of personal autonomy, to control one's own body free from external compulsion, is at stake in the abortion question. The idea that women's bodies can be conscripted by the state against their will and in the face of adverse and unwanted consequences goes against our most basic notions of the freedom and dignity of the individual.
8. The pro-choice logic makes a strong case when applied to the pre-embryonic and embryonic stages of development. While some claim that human individuality begins at conception the scientific facts do not support this assertion:
   • Conception is a process over time, not an discrete event. When looked at closely, the claim that life begins at conception becomes quite ambiguous.
   • After the first divisions of the fertilized egg, there is the possibility of the splitting of one embryo into two or more separate individuals. There is also the possibility of the merging of two distinct embryos with different genotypes into one individual.[12] These phenomena call into question the entire notion of individuality at this early cellular level of development.
   • Many fertilized eggs fail to implant or miscarry very early in pregnancy, yet there is no cultural tradition of grief at this loss of a so-called "individual", in fact, most of these lost embryos leave the mother's body un-noticed because they exist at a microscopic level.[13]
   • When the hollow ball of cells known as the blastocyst implants in the endometrium of the uterus, the outside cells in contact with the uterus differentiate to form the placenta and fetal membranes. Those cells inside of the sphere differentiate to form the embryo. Thus, the natural course of events for many of the early cells is to become placenta, not person, and to later die at the point of birth.[14]

9. However, when pro-choice logic is applied to fetuses rather than embryos and it is asserted that the fetus is a being too primitive and undeveloped to deserve legal protection, there is a headlong collision with the biological facts: * At twenty weeks of development the fetus is outwardly indistinguishable from a premature human infant. It has well developed facial features, arms and legs, hands and feet, fingers and toes, fingernails and fingerprints. It breathes amniotic fluid and moves spontaneously and in response to stimuli. It sucks, swallows, and squints. It is responsive to light and sound. It has well developed external genitalia that make it easily identifiable as male or female.[15] Within the fetal ovaries a lifetime supply of egg cells have differentiated. * The viability standard stands for the curious notion that all those who need the life support of gestation may be terminated at will, while for those who can survive without gestation, gestation can be mandated.
10. Thus, the pro-choice argument is compelling when applied to early stages of embryonic growth, but is open to increasing criticism as development unfolds into the fetal stage.
11. Pro-life proponents make a number of powerful arguments. They point out that the sanctity of human life is a central tenet of Western Civilization and the unique worth of each individual is a core value of the Constitution.
12. Pro-life advocates point out that society regards the pre-mature, just viable infant in the neo-natal ICU as a "baby". As such, the neonate enjoys the full protection of the law and has a claim on expensive medical resources necessary to sustain its life, though its day or week younger cousin may be legally aborted and this taking of life is a private, Constitutionally protected, matter. While critics have decried the pro-life rhetoric of infanticide as exaggerated and inflammatory, in certain cases it is accurate: * The viability standard announced in Roe means that the Constitutional abortion right, by definition, straddles the border with infanticide. * The border with infanticide is documented by the cases of those fetuses who are aborted and yet emerge alive from the process, though possibly gravely injured.
13. By the second trimester the fetus is almost fully formed and distinctly human. Indeed in very late abortions the fetus will occasionally emerge alive-creating a Hippocratic nightmare for the doctor. Is it his or her duty to save a being whose very 'birth' was caused by an effort to destroy it? "It happens very rarely, but yes, it does happen," said Dr. Kenneth Ryan of Harvard Medical School, head of the ethics committee of the College of Obstetricians and Gynecologists.
14. In these cases, he emphasized, most physicians "would say it has to be treated like any other under-weight infant" and try to keep it alive.[16]
15. The abortion procedure for late term fetuses is gruesome[17],[18] - the preferred technique being live dismemberment. While scientists are unsure as to whether the fetus can or cannot process pain at this stage of development,[19] there is the active possibility that abortion at this stage is a cruel and painful ending for the fetus. Finally, it is a fact that there is the taking of a life that is outwardly indistinguishable from that of its viable born cousin.
16. The pro-life argument maintains that this form of killing not only terminates a human life, but also, because the process is Constitutionally sanctioned, degrades that fundamental body of law. This facet of the pro-life argument is compelling.
17. However, the pro-life claim that individual human life begins at conception runs into major difficulties. While some may believe that a newly fertilized egg is a human being and a legal person, others assert convincingly that this interpretation is not supported by science and is more a matter of personal belief or theological dogma and as such cannot be the basis for social rules under the Constitutional doctrine of separation of church and state. The abortion issue remains locked in intellectual trench warfare. There is a stalemate between the polarized pro-life and pro-choice positions, each side composed of true believers tenaciously fighting to gain or defend a few yards of ground.
18. It is often asserted that there is no middle ground in the discussion. It is said that development is a continuum between conception and viability and therefore choosing any intermediate stage of development as a legal standard is either an arbitrary exercise or is based on one or another religious world view and thus unacceptable in a pluralistic society.
19. The purpose of this paper is to show that, despite the intense focus on the abortion question, the biological facts have not been fully examined and that there is an alternative to stalemate, one that is grounded in neutral scientific fact rather than religious belief.
20. There are those who say that the biological facts are not important to resolving the issue.
21. The value of life is not a simple attribute of any particular life form, something that can be discovered. Culturally created, the value of life rests on social meanings, and, importantly, on sexual politics. Fetal life has value when people with power value it. [20]
22. The theory that the biological facts of this issue are secondary in importance to the rhetoric of sexual politics is flawed and leads away from important empirical knowledge.
23. The value of life is culturally created, just as every other aspect of our civilization is a cultural creation, including law, science, the entire process of accumulating knowledge and making decisions. This does not mean that we value life on an arbitrary scale. Much of the legal enterprise is an attempt to value life according to a rational scheme. For example, the law has no objection to the killing of yeast or bacteria by boiling them alive, in fact, pasteurization of milk is mandated. However, killing mammals in such fashion would violate statutes forbidding cruelty to animals. Killing a human being in this fashion would be regarded as a heinous crime and might be more severely punished than a homicide committed using less painful means. The law places a higher value on life as one progresses up the evolutionary scale. Thus the proposition that the value of life is simply an exercise of power or sexual politics ignores important facts and is a way to dismiss the true complexity of the issue.
24. This article does not propose that biology alone provides a determinative answer to the abortion controversy. However, in a pluralistic society when deciding an issue that is deeply rooted in human biology and evolution it certainly makes sense to first delve deeply into the facts to search for conceptual fault lines where distinctions can be drawn based on science and reason.
25. Olsen's reasoning contains a deeper fallacy that can be seen if we take the question a step further. Given that the value of life is culturally created, what is the source of culture? As this paper will discuss, human culture and civilization can be traced back to distinct biological attributes of Homo Sapiens. I will argue that human beings possess a unique set of anatomic features that are the fundamental tools of human survival and cultural evolution and that there is thus a compelling logic for offering special respect and protection to beings who possess these features.

A Legal Standard Grounded in Science

The concept of viability as the 'compelling' point marking where fetal life can Constitutionally be protected is logically and biologically flawed and intrinsically unworkable

26. The advantage of using viability as a legal standard is that it seems to stand out, in theory, as a marker in the continuum of human development. In practice, however, this has not proved true. Viability actually becomes a vague marker if we ask whether we mean viability in an advanced neonatal ICU or viability in a remote rural county with limited medical resources. [21]
27. Thus, viability lacks one of the key characteristics of a rational standard, namely that it identify a conceptually distinct division point. This problem is amplified by the fact that as pediatric medicine has improved, the frontier of fetal viability has moved backwards several weeks and may retreat further. In a matter of such importance, when the issue has to do with termination of the life of a Homo Sapiens, using a standard of such relativity is deeply flawed.
28. Viability, in addition, fails another critical test of a good standard because it measures a quality that is not readily observable by those who need to rely on it to make decisions. Viability is a prediction about survivability, based on assessment of fetal lung maturity. As such, it has to be estimated from other developmental features and is not directly observable.
29. The ability to breath air occurs late in gestation and is not what makes humans unique or worthy of special respect. The viability standard thus measures a strange parameter in a life and death balancing of interests. It doesn't measure the universal human characteristics shared by the fetus and the larger community and species, but instead focuses obsessively on the potential ability of the fetus to breath air and thus survive separately from its gestational mother.
30. The strangeness of using viability as a marker comes into clearer focus when we consider that as a species humans are all born prematurely, a phenomenon biologists term neoteny.[22] The pre-viable fetus is helpless and dependent on others for its survival, as is the viable fetus, the child brought to term and the three month old infant.
31. Neoteny is a central element of Homo Sapiens' survival strategy and is intimately tied to the human invention of culture. Humans are born in an unprogrammed, plastic, incomplete and vulnerable state and have by far the longest childhood period of helplessness and dependence of any species. This early plasticity and dependency of the young allows humans to pass on to the next generation, through education and training, the accumulated knowledge of the social group, each generation standing on the shoulders of the previous one. The invention of culture was a revolutionary event that made humankind unique among animals[23] and has proven to be an extremely successful survival tool.[24]
32. When one considers the central role of neoteny in the social invention of culture, and that culture is the human species' primary survival strategy, then the viability standard seems strange indeed. It focuses narrowly on individuality and the ability to survive as an autonomous being, as if the viable infant could jump up and run like a young zebra or gazelle.
33. Thus, the viability standard purports to mark the "compelling" stage in fetal development at a point that has little to do with what makes a fetus human, with the emergence of unique human traits. Instead, as long as the fetus is dependent and vulnerable, it can be destroyed and it only earns the right to legal protection when it passes the point of a hypothetical independence. This occurs despite the fact that as a member of a neotenous species, dependence and vulnerability is one of the fetus' most human traits.[25]
34. What becomes clear on reflection is that the viability standard was not derived from ontogeny, from a consideration of the developing characteristics of the fetus. It just does not make much sense from the point of view of human development. Viability is a familiar legal grid, the grid of individual autonomy. When the fetus is judged potentially capable of being separated from its mother, viola, it becomes a rights bearer. The fact that it is still inside of the womb and is totally helpless and dependent whether born or unborn does not matter. Individuality and autonomy are the most basic themes in the Anglo-American legal system. Here they are reflexively called into play to solve a difficult problem. Avoiding the facts of ontogeny results in looking only to the law for a solution, law that was developed at a time when biological science was primitive or non-existent. In this instance, where half of the equation is about dependence and attachment and helplessness, the legal grid of individual autonomy doesn't resolve the fundamental problem.

An alternative biological dividing line exists, one that is as clear as the hand in front of your face, that will serve as a solution to the Roe dilemma

35. What makes us uniquely human are the presence of certain characteristic structures that appear developmentally at the transition from embryo to fetus. These uniquely human structures are the hand with an opposable thumb and the brain with a large neo-cortex. Over millennia these structures co-evolved together to create a unique creature, a creature capable of inventing, using, and passing along culture.
36. One cannot emphasize enough the importance of finger-thumb opposition for human emergence from a relatively undistinguished primate background. Through natural selection, it promoted the adoption of the upright posture and bipedal walking, tool-using and tool-making that, in turn, led to enlargement of the brain through a positive feed-back mechanism. In this sense it was probably the single most crucial adaptation in our evolutionary history.[26]
37. Humanity's evolutionary leap to culture is illustrated in the opening sequence to the film 2001, A Space Odyssey. A proto-human ancestor is engaged in daily rivalry with another hominid for access to a water hole. One day the protagonist grasps a large bone, and in a flash of invention, has the idea of using this as a weapon. In the next encounter at the water hole he uses the bone to slay his rival. With a triumphant gesture the victor heaves the tool into the air. The camera follows it to the apex of its flight where the bone turns into a space shuttle gracefully docking with a space station to the tune of a Strauss waltz.[27]
38. This scene illustrates how the hand capable of manipulating objects co-evolved with the brain capable of ideas and imagination. It shows the direct link between the slow evolutionary invention of the hand-brain complex and the comparatively rapid human invention of culture and civilization as symbolized by space travel and Stauss.
39. The tool-grasping hand stimulated the development of the large neo-cortex; the brain in turn expressed its thoughts through the tool-grasping, tool-manipulating hand. Upright posture and binocular vision enabling the brain to get instant feedback on the movement of the hands are keys to the amazing dexterity of the hand-brain system. The invention of written language depended on the dexterity of the hands, binocular vision, and the large brain capable of forming ideas and expressing these through symbols.
40. The hand is the visible manifestation, the emblem, of the cluster of anatomic features that are uniquely human and the basis of human survival.

The human hand is one of the foundation stones of culture

41. The history of art illustrates the link between the hand-brain complex and the evolution of culture. Drawing, painting, and sculpting involve both the brain's ability to think and imagine and the actual creation of artifacts through the remarkable dexterity of the hands, guided by the brain via the feedback of binocular vision. Not only is the hand the instrument of artistic creation, but artists down through history have recognized the special significance of the hand as one of humanity's unique gifts.
42. The earliest human art, and thus some of the earliest signs of culture, is found on the walls of caves in France and Spain. These sites contain striking pictures of animals, now extinct, and the imprint of human hands, the mark of the artists.
43. In the mountains of southern France, where human beings have produced art for thousands of years, explorers have discovered an underground cave full of Stone Age paintings, so beautifully made and well preserved that experts are calling it one of the archeological finds of the century.
44. The enormous underground cavern, which was found on Dec. 18, 1994 in a gorge near the town of Vallon-Pont-d'Arc in the Ardeche region, is studded with more than 300 vivid images of animals and human hands that experts believe were made some 20,000 years ago.[28]
45. Referring to similar finds in Spain noted scientist and author Jacob Bronowski observed, "All over these caves the print of the hand says: 'This is my mark, this is man.' " [29]
46. One of the most familiar and moving pieces of Western art is Michelangelo's The Creation of Adam, painted on the ceiling of the Sistine Chapel. The rendition of the hand of Adam and the hand of God nearly touching and yet separate illustrates mankind's existential dilemma: possessed of such God-like powers, reaching out to the divine, and yet separated by the tiny, unbridgable gap between the two hands.
47. Picasso's Guernica depicts the violence of the twentieth century invention of total warfare. Guernica, a village in northern Spain (not far from the sites of the cave paintings), was destroyed by saturation bombing during the Spanish Civil War - a rehearsal of the blitz kreig. Picasso's powerful painting symbolizes the tragedy of modern culture, created by human hands and intelligence, now turning on itself with a ferocity and destructive power never imagined possible. Everywhere in the painting are images of hands; hands raised in surrender, the hands of the fallen warrior, the hands of the woman cradling a dead child.

The hand is the most basic tool of mathematics and science

48. The hand is composed of digits. Digits were the first tools of counting, calculation and measurement. Our digital number system operates from the base of ten, the number of fingers on two hands. Later, written Arabic symbols took the place of fingers as counters, but the symbols 0 to 9 are still known as digits. The digit is also an ancient unit of length equal to the breadth of a finger.
49. Evolution of the hand allowed homo sapiens to manipulate and count objects, this activity drove the brain to devise logic and reason to create mental models of experience. Formal reasoning based on manipulating first physical counters, and then symbolic counters, became the science of mathematics.
50. Computers count not with ten fingers, but with switches in the on or off state. Binary arithmetic is the natural language of computers, a system that operates with only the numbers 0 and 1. The symbols zero and one are digits borrowed from the base ten number system. Thus a computer is called a digital machine, perhaps manufactored by Digital Equipment Corporation, one of the businesses participating in the digital revolution.
51. Science is the systematic acquisition of knowledge about the natural world based on observation and manipulation of phenomenon and the application of formal reasoning to the data collected from observation. The word derives from the Latin scientia, to know. Scientists develop hypotheses about the natural world from prior knowledge, intuition, or mathematical prediction. They then test these hypotheses through a formal process of experimentation, i.e. the manipulation of the natural world. The hand is the first, the most adaptable, the most flexible of all the tools in the scientist's inventory and is the primary tool that created both the atomic accelerator and the radio telescope. The process of physical manipulation in turn stimulated the brain to create images, concepts, mental models, theories and systems to explain the natural world.
52. We live in a scientific civilization and science is the basis of our survival and flowering as a species.

References to the hand in the culture of the law

53. The culture of the law is filled with references to the human hand as an important sign of identity. Fingerprints are used as forensic evidence of identification. Every person's hand is imprinted with patterns that distinguish him or her as a unique individual.
54. The signature is a complex product of the hand-brain system. We speak of each person writing in his or her own hand to refer to unique handwriting. A person's signature is an identifier and a way that persons commit themselves to legal obligations.
55. When one takes an oath in court, they raise their open hand as a symbol of the gravity of this act and of their promise not to conceal the truth.
56. When a couple decides to commit themselves to the contract of marriage, we refer to them taking each other's hand in marriage and there is the well known ritual of exchanging rings as a symbol of joining together two lives.
57. The judge in her study writing an opinion, a holding, that builds on the long history of her society is an illustration of how fundamentally linked is the hand-brain system to the invention of civilization. Without the hand-brain connection there would literally be no study, no legal system, no society. However, because these structures exist, the judge is able to add to the sum of culture as she struggles to apprehend (from prehendo: to grasp) difficult ideas and then express through her hand the written synthesis of ideas that is a legal opinion.

The development of the hand-brain complex in the fetus

58. The transition from embryo to fetus occurs at the end of 8 weeks post-conception. It is at this stage that the hand emerges from the paddle-like precursor and the brain first begins to show electrical activity that is measurable by EEG
59. Measurable brain activity is an indicator of "brain birth", the developmental point at which the fetal brain shows signs of function as well as growing to resemble the human brain characterized by the large neo-cortex.
60. The emitting of EEG signals does not indicate the presence of sentience or consciousness. There is general agreement that these "software" functions do not have sufficient "hardware" support until later in development. However, it is probably impossible to define with any precision when these higher level functions emerge.[30] "Brain birth" has been proposed by several authors as marking the point where humanness begins because it is symmetrical with our definition of death, the cessation of brain waves as measured by EEG.
61. The primitive, sub-cortical brain comes into being at five weeks as an organized unit [...]. Cerebral hemispheres differentiate at seven weeks and as previously noted, EEG activity has been demonstrated at eight weeks."[31]
62. The brain-life theory simply stated is: "Whenever a functioning human brain is present, a human being is alive. [...] Whether that being is in utero or ex-utero, whether that person will die in the next minute, or at age nine weeks, or ninety years is immaterial to this definition.[32]
63. The brain birth standard has long been advocated as a rational alternative to the viability standard.[33] One such advocate was none other than the plaintiff's attorney in the original district court case of Roe v. Wade! Sarah Weddington relates reading about her argument before the district court,
64. A Dallas Morning News story of May 24, 1970, headlined "Survival Rights of Mother, Fetus in Conflict" [...] The article reported my comment, in response to questioning about the state's interest, that the state "could recognize life when the fetus is able to live outside the mother" at twenty-two to twenty-six weeks after conception, or that another possible standard for life, used in organ transplants, might be considered: whether the brain was functioning.[34]
65. This rather stunning fact demonstrates that the brain birth standard was an acceptable solution, at least at the district court level, for the original plaintiffs in Roe. Somehow, as Roe v. Wade skipped appellate level review and then progressed through two arguments to the Supreme Court, this solution to the most difficult question in the abortion puzzle got lost in the shuffle. Perhaps, if the Supreme Court had taken up brain birth as the point of compelling state interest, the abortion question would not be the deeply divisive issue that it has become.
66. The transition from embryo to fetus is the point of yet another developmental milestone that provides sound reason for deeming this stage a legal milestone. It is at this stage of development that movement, first reflexive and then spontaneous, appears.[35] Fetal movement stirs factors of intuitive recognition and empathy on the part of observers. Common law considered "quickening" a legal marker. Actually, fetal movement begins long before quickening at fourteen weeks, but is too faint to be detected by the pregnant woman until this point. Fetal movement is a sign of increasing complexity and systems integration and the appearance of fetal movement points to the possibility that there may exist some form of primitive self.[36]
67. Up to this point in development, the probability of the existence of self is very low. Because the organism is not fully formed, the burden of proof is on those who claim that embryos have self to demonstrate that this is biologically possible. However, the appearance of motor activity makes it reasonable to suspect the presence of sensory activity, since movement and sensation are intimately related. With the appearance of movement, the burden of proof shifts to those who maintain that the fetus lacks the rudiments of self to prove their assertion. This is a burden of proof that they cannot carry given the current state of scientific knowledge.
68. Distinguishing between the embryo and fetus is thus a conservative measure in an area where caution is indicated. There is a strong moral argument that the right of abortion must be tempered by considerations of the humanity of the fetus and the possibility that the fetus is capable of sensation. The gruesome live dismemberment of the fetus in the D and E procedure becomes grotesque and barbaric if the fetus is capable of processing pain. Beyond the embryonic stage it is unclear when the fetus develops the sensory equipment necessary to produce such experience, but it becomes probable that this is present by the stage of viability.
69. The fetus is thus defined as coming into being at the same time that the hand emerges, the brain begins to show electrical activity, and the developing human begins to demonstrate reflexive and then spontaneous movement. The hand and the brain working together are the primary tools that have built civilization. The possession of hands, a brain capable of electrical activity, and sufficient neurological integration to support movement are profound signs of membership in the human community.

Advantages and Objections to Using the Embryo-Fetus Distinction as a Legal Standard

Advantages - It is a reasonable standard

70. This paper proposes that the embryo-fetus distinction is a developmental transition that will prove useful in framing legal rules about abortion, far more useful than the current legal standard of fetal viability. First and foremost, there are well reasoned grounds for choosing the embryo-fetus distinction as a marker, in contrast to the viability standard announced in Roe, where the reasoning that establishes viability as a central parameter is thin and conclusory.
71. When one looks at the full spectrum of human development, from conception to birth, the question is not when human life comes into existence - at all stages of pre-natal development there is human life. All adult persons share the common experience of having been at one time a conceptus, embryo, fetus, new-born, and so forth. The abortion controversy is about what point in the course of human development does termination of a developing life become a matter of public concern rather than a strictly private decision. The issue as framed by Roe is when in development does the state have a compelling interest to protect the life of the developing human being, only a compelling state interest being legally sufficient to outweigh the pregnant woman's constitutional privacy interest.
72. The transition from embryo to fetus is the point in pre-natal development that marks brain birth, the stage where detectable brain activity is first present. Brain death has been widely accepted as an ethical and legal marker of the end of life. There is thus a powerful analogy and symmetry in proposing that if human life is valued and legally protected up to the point of brain death, then brain birth marks the point at the other end of the life cycle where the human being deserves to be valued and legally protected.
73. The transition from embryo to fetus also marks the emergence of the distinctive human hand, no other species is capable of the precise opposition of thumb and fore-finger that characterizes the structure of the human hand.[37] The physical possession of this structure argues for special respect for developing human life at this stage.
74. There is a core analogy between these developmental events in the individual and the co-evolution in the species of the hand and large brain, features that distinguish Homo Sapiens from other animals and are the basic tools in the creation of culture and civilization. This core analogy makes a powerful, reasonable, claim on the law for protection of the fetus from destruction. 2. It is an observable standard.
75. A key problem with the viability standard is that it is unobservable and vague. Rather than an observable feature of the fetus, viability is a prediction about the fetus's ability to survive outside of the womb. This is dependent both on the maturational level of the fetus, which is difficult to assess accurately, and on the external technology presumed available to sustain pre-mature infants. So, inherently, viability is difficult to judge. Add to this the fact that technological advances have changed the frontier of viability and the standard becomes even more indefinite and open to dispute.
76. In contrast, the change from embryo to fetus is by definition accompanied by a change in external form, one of the most striking changes being the emergence of human hands. Those effected by the law would have a clear marker rather than a fuzzy and confused one as is the case under the viability regime.
77. As a practical matter, perinatologists using ultra-sound can measure the age of the late embryo and early fetus with great precision, within a margin of error of a day or two. This contrasts with the margin of error of four weeks when estimating the age of the twenty week fetus. This is because the growth rate of embryos is very uniform across a population and thus standard measurements give an accurate estimate of age. However, in the fetal stage growth rates vary as the individuality of the fetus is expressed and size measurements give only rough approximations of age. 3. It is a morally defensible standard.
78. The viability standard raises grave moral problems because it draws the line protecting the abortion right very late in development. There is a serious question about cruelty and pain in the killing of well developed but pre-viable fetuses. At the very least, the burden should be on those who advocate abortion up the point of viability to prove that the fetus lacks self or sensation or sentience, a proof that is not in the scientific literature.
79. There is also the moral problem of human recognition and empathy. Those who recognize in the fetus the features of a complex human being intuitively feel strong empathy. Because humans are a neotenous species, with care of helpless infants a central experience of every family, this intuitive empathy for fetuses creates for many reasonable people a conflict between their conscience and the Constitutional abortion right.
80. If the abortion standard were not based on viability, but on the transition from embryo to fetus, the above moral objections would have much less force.
81. The issue of pain and cruelty drops out of the debate because it can be stated with a high degree of certainty that embryos lack a nervous system sufficiently advanced to support sensation or self.
82. The human recognition factor also drops out of the debate to some extent. Quite simply, embryos do not have distinctively human features. A scientist can differentiate a human embryo from that of another species, but this is not obvious to lay-persons. Lack of human features corresponds to a basic fact of development, the human embryo is less complex and differentiated than the human fetus.

Objections - Abortion at any stage of development is morally wrong

83. There are those who say that abortion at any stage of development ends human life and is therefore morally wrong. For those who take this position abortions at the embryonic stage are unacceptable and the distinction between the embryo and fetus is irrelevant.
84. If one takes the position that abortion is wrong at any stage of development, a logical corollary is that it is equally wrong to end a very early embryonic life or an advanced fetal life. This line of reasoning seems to make those forms of birth control which prevent implantation of a fertilized ova as morally objectionable as the dismemberment of an advanced fetus.
85. This reasoning is unsatisfying. If one believes that abortion is morally wrong it would seem that the degree moral danger would increase as the potentiality of the just fertilized egg becomes actualized in the well developed fetus.
86. The argument that abortion at any stage is morally wrong is difficult to refute, but it is also difficult to prove. To a large extent the notion that humanness begins at conception relies on articles of faith rather than scientific fact. The claim of this paper is not that drawing the abortion line at the point between embryo and fetus is THE moral solution to this problem, a problem that might lack such a certain resolution, but only that it is a morally defensible solution in a pluralistic society and one that is clearly superior to the viability scheme.

Objections - The proposed scheme of protecting fetuses is anti-choice and would severely limit the constitutional abortion right

87. The proposal to limit the constitutional abortion right to the embryonic stage of development is not anti-choice, it is pro-choice within scientifically and morally defensible boundaries. Those who defend the current scheme are stuck with two difficult and intractable problems. First, the viability standard was invented by Justice Blackmun out of whole cloth as part of the trimester notion[38] and is not grounded in any fundamental principle, as the tortured apologies for viability demonstrate.[39] Second, those who link the right of choice with the viability standard must forever defend the right to abortion from the compelling and well documented concerns about brutality and infanticide. In defense of abortion, they must somehow come up with a rationalization for "calvaria sign" (footnote 18).
88. Statistics show that 50% of current abortions are performed before week nine post-conception and another 40% of abortions occur between weeks nine and thirteen post-conception.[40] Hence, half of all current abortions fall within the embryonic stage and 90% of current abortions are performed before week thirteen, within four weeks of the transition from embryo to fetus. Thus, even within a liberal abortion regime, the majority of women exercise the abortion choice in the early stages of pregnancy.
89. If the abortion standard were to change from viability at twenty-three weeks to the embryo-fetus transition at eight weeks this would have no effect on the 50% of those who currently choose abortion before this point. Of the 40% who choose abortion between weeks nine and thirteen it is probable that under a more restrictive standard many women would change their behavior to adapt to a more limited freedom. Of the remaining 10% who currently have access to abortion past thirteen weeks, it is likely that the eight week threshold would deprive them of a choice that they currently enjoy.
90. From this analysis it is reasonable to assert that limiting the abortion choice to the embryonic stage would leave the fundamental principle of choice intact - the option of safe and legal abortion in the event of unplanned pregnancy or contraceptive failure - while eliminating from the debate the most troubling aspect of the abortion controversy, the killing of advanced human fetuses.
91. A serious consequence of an eight week abortion threshold would be a much shorter window for detecting abnormalities and making a decision about abortion. The fetal stage is defined as beginning at the point where the developing embryo becomes fully formed. Thus, the fetal stage is also where deformities are often detected. Under the liberal Roe scheme deformed fetuses can be detected and legally aborted, this would no doubt be impacted by an earlier abortion standard.
92. There are several ways of approaching this issue. Medical practice developed for twenty years under the Roe standard - if another standard were adopted there would be adjustments and innovations to detect abnormalities earlier in pregnancy. For example, genetic abnormalities are currently detected by amniocentesis, a test which is only available relatively late in pregnancy when there is enough amniotic fluid available for sampling. There is another procedure for genetic screening, chorionic villus sampling (CVS), where a small sample of the placenta is removed for testing. This procedure can be performed much earlier in pregnancy. If an earlier abortion standard were adopted medical practice would shift towards tests and methods that would detect abnormalities within the narrower window.
93. If the Supreme Court adopted an earlier abortion standard, or if it overruled Roe entirely, this would not necessarily rule out abortion in the case of fetal abnormalities that are detected late in pregnancy. If Roe were modified or overruled, state legislatures would be faced with the issue of deciding the parameters of abortion in each state. Opinion surveys have shown that even those who identify themselves as pro-life see the issue differently in the case of deformed or damaged fetuses and it is likely that exceptions would be painfully hammered out to cover these difficult and heartbreaking cases.

Roe and ontogeny

94. The Roe opinion focuses almost exclusively on the law and gives little attention to the facts of human development, or ontogeny. Roe steadfastly minimizes or chooses to ignore the scientific facts of human development and instead much of the opinion focuses on a lengthy discussion of the medical-legal history of abortion. This avoidance is all the more striking when one reads the original briefs. In the appellees' brief submitted by Henry Wade, District Attorney for Dallas County, Texas, by far the longest section in the brief, twenty-five out of fifty-eight pages, discusses "The human-ness of the fetus" and describes in detail the stages of human development leading up to birth.[41] The amicus brief submitted by Fellows of the American College of Obstetrics and Gynecology (FACOG) similarly gives a detailed overview of the process of human development in the womb.[42]
95. The Roe opinion has a strange, almost dismissive, attitude towards the facts of development:

The appellee and certain amici argue that the fetus is a "person" within the language and meaning of the Fourteenth Amendment. In support of this they outline at length and in detail the well-known facts of fetal development.[43]

96. The assertion that the facts of fetal development were - or are - well known is debatable. However, in a matter open to such difference of opinion, wouldn't the biological facts be a good place to start? If well known, the neutral facts might be potential common ground in a polarized dispute.
97. Later in the opinion, Justice Blackmun again avoids delving into the subject of human development:

    Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.[44]

98. But wait. If there was a consensus as to "when life begins", the abortion issue would not be in the Supreme Court, it would have been settled long ago at a lower level. Courts are often asked to solve society's difficult, value laden questions where there is no scientific consensus but at the same time a need for a rational standard. To develop a rational standard, it is desirable to build as much as possible from the known facts, to stick close to the data. Yet, at each turn, the Roe opinion avoids discussing the facts of ontogeny. The tactical reason for this is to avoid having to discuss the appellee's contention that life begins at conception. By dismissing the issue it need not be dealt with. However, by skirting the hard question Roe writes off the level of basic factual data where a workable answer to the puzzle might lie.
99. The avoidance of ontogeny is a strange aspect of Roe, but it becomes stranger still at the end of the opinion where the viability standard is invented. Without supporting analysis, without reasoned explanation, Justice Blackmun, out of thin air, declares:

    With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother. [45]

100. This short paragraph, at the end of an opinion that avoids any discussion of ontogeny, is the origin of the viability standard. What stands out is the conclusory nature of the assertion that viability is the "compelling" point. Why does the potential to survive outside of the mother's womb confer a right to remain in the womb undisturbed? What has fundamentally changed that allows the State to impinge on the woman's privacy right? From the point of view of ontogeny the viability standard makes little sense, has very little to do with what makes humans, human.

Changing the Standard

101. There are two scenarios in which the notion of distinguishing between the rights of embryos and the rights of fetuses might prove useful.

Compelling state interest

102. The first would be the case in which the Supreme Court modified Roe to adopt a more conservative definition of "compelling state interest" in an attempt to preserve the logic of Roe and the prestige of the court. This would mean developing a less inflammatory standard than viability and one more firmly rooted in science and reason. In this scenario, abortion would be preserved as a constitutional right, but within a narrowed window of development. Beyond this point state legislatures would be free to regulate or proscribe abortion on a state by state basis.
103. In the abortion cases the Supreme Court holds a wolf by its ears. They can't hold on and they don't want to let go. Twenty odd years after Roe the Court is in a difficult position. In a broad stroke the Court created a constitutional right for 50% of the population, the right to terminate embryonic and fetal life prior to viability, free from any meaningful regulation by the states. Yet, that decision unleashed a firestorm of protest and polarized the nation.
104. Changes in the Court's membership which resulted in a backing away from an activist judicial philosophy and a change of perception about the abortion issue now brings the Justices to the brink of overruling Roe. Yet this creates a huge problem, the problem of taking away a right already granted. A basic rule of human behavior is that it is far easier to withhold something in the first instance than to grant it and then try and take it away.
105. The Court has thus fallen into a judicial tar pit, mired to an ill-conceived decision that has produced a voluminous and truly confused line of cases, yet unable to extricate itself.
106. Roe began to unravel around the issue of viability. After a long series of cases where state laws challenging the availability of abortion were consistently ruled unconstitutional by the Court, the strategy of state legislatures shifted to passing statutes that focused on the notion of viability, the weak link in the Roe chain of reasoning.
107. In Webster v. Reproductive Health Services[46] the Court was confronted with a Missouri statute that required physicians who have reason to believe that a fetus is twenty or more weeks old to make a determination about fetal viability. This in turn might require them to perform additional tests before deciding to perform an abortion. Since many of these tests would result in a finding of second trimester, pre-viable pregnancy the Court found that the tests conflicted with the Roe framework. The Roe scheme only allows testing in the second trimester for the purposes of protecting maternal health, not until post-viability can states regulate in order to protect the life of the fetus.
108. The fact that viability is a fuzzy marker, difficult to measure and not directly observable created a Catch-22 problem. At twenty weeks gestation there is a four week margin of error in estimating viability, the statute required additional care so that post-viable fetuses were not accidentally and illegally aborted.
109. In a plurality opinion the Court decided to discard the trimester scheme and allow the statute requiring a viability determination to stand. "We have not refrained from reconsideration of a prior construction of the Constitution that has proved 'unsound in principle and unworkable in practice.'[citations omitted] We think the Roe trimester framework falls into that category."[47] While retaining the viability standard, Rehnquist's opinion questioned its logic. "[W]e do not see why the State's interest in protecting human life should come into existence only at the point of viability, and that there should therefore be a rigid line allowing state regulation after viability but prohibiting it before viability."[48]
110. Justice Blackmun in his dissent correctly sees that overruling the trimester scheme portends the end of Roe. He severely chastises the plurality for breaking the faith in trimesters and viability.
111. Finally the plurality asserts that the trimester framework cannot stand because the State's interest in potential life is compelling throughout pregnancy, not merely after viability. Ante at 519. The opinion contains not one word of rationale for its view of the State's interest. This "it-is-so-because-we-say-so" jurisprudence constitutes nothing other than an attempted exercise of brute force; reason, much less persuasion, has no place.[49]
112. Justice Blackmun is hoisting himself on his own petard. As discussed, the viability notion was invented in Roe without reasoned explanation, one can hardly complain when the spell is finally broken and an arbitrary notion is challenged.
113. In Planned Parenthood of Southeastern Pennsylvania v. Casey[50] the Court beats a retreat from Webster, perhaps sensing the magnitude of their predicament. What stands out in Casey is fragmentation of the Court, the syllabus alone takes up 19 pages, the entire opinion including dissents runs to 123 pages.
114. The plurality opinion is a curious one in that it goes to great lengths to explain why it won't overrule the central holding of Roe. "After considering the fundamental constitutional questions resolved by Roe, principles of institutional integrity, and the rule of stare decisis, we are led to conclude this: the essential holding of Roe v. Wade should be retained and once again affirmed."[51] However, the opinion then goes on to create a new standard of review, the "undue burden" test, and using this standard it upholds a series of state provisions regulating abortion similar to those it has struck down in the past.
115. In Casey the plurality reaffirms commitment to the viability standard, while at the same time acknowledging that viability is a flawed marker, "Liberty must not be extinguished for want of a line that is clear."[52] The opinion then offers reasons for this commitment. "First, as we have said, is the doctrine of stare decisis. Any judicial act of line-drawing may seem somewhat arbitrary, but Roe was a reasoned statement, elaborated with great care."[53] "The second reason is that the concept of viability, as we noted in Roe, is the time at which there is a reasonable possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can in reason and all fairness be the object of state protection that now overrides the rights of the woman.[...] And there is no line other than viability which is more workable."
116. Finally, the Court makes a re-newed declaration of faith in the viability standard. "The woman's right to terminate her pregnancy before viability is the most central principle of Roe v. Wade . It is a rule of law and a component of liberty we cannot renounce."[54]
117. Thus in Casey the court recognizes that viability is the central point in Roe and decides to uphold the notion of viability because they have done so in the past, because viability is a well-reasoned concept (which is not the case), and because no other dividing line exists ( which is not the case).
118. Clearly, in Casey the Court is most concerned about erosion of its own credibility and prestige if it overrules the case that has generated the most domestic controversy since abolition. And well it should be concerned, with the abortion line of cases the Court has painted itself into a corner.
119. An alternative exists that would retain the principle that women have personal autonomy rights in the area of reproductive choice that are constitutionally protected and would make moot many of the concerns of people who now oppose the Court's abortion rulings. A rule could be formulated to say that as regards embryos, women have a constitutional right to choose abortion free from coercion by the state. However, as regards fetuses, the compelling interest of the state in protecting developing life and preventing cruelty to human beings outweighs the autonomy rights of pregnant women.
120. Such a rule would make moot the issue of cruelty, it would make moot the issue of infanticide, the issue of live abortuses would drop out of the discussion, as would the issue of viability testing. The most significant issue left in the debate would be the pro-life assertion that embryos have a right to life that outweighs the autonomy rights of women. This assertion would be based on the idea that humanness or individuality begins at conception, an idea that lacks conclusive scientific proof and in fact where the scientific evidence points in the opposite direction. Moreover, claims for embryonic rights do not evoke as much empathy or stir the conscience as deeply as claims for fetal rights, embryos exist at a much more rudimentary state of development.
121. One could reason that just as the view of Earth from space changed our ecological consciousness, so the new imaging technologies have changed our consciousness about life in the womb. Whereas the viability notion might have been tenable in 1973, the new imaging technology has produced a heightened appreciation of fetal development on the part of both scientists and the general public. Fetal sonograms mean that baby books now routinely start with a fetal portrait. This new awareness has made it clear that Roe erred in drawing the line at viability, this is an expansive standard in a situation where a conservative approach is called for.

Overruling Roe

122. The second case would be where Roe was overruled, either by the Court or by constitutional amendment. In this scenario, the entire issue would revert to the state legislatures which would then become the battleground for the pent up energy of the stalemated pro-life and pro-choice forces. In this contingency it would be very useful, especially for the pro-choice faction, to have on hand a well reasoned, intermediate position firmly rooted in scientific fact.
123. After more than twenty years of being barred by Roe from legislative action, the battles in the legislatures would be fierce and the pressures on legislators enormous. Both sides would be able to rally large, active constituencies to lobby for their position. The nature of the legislative process is to try to find palatable compromises that will give each side half a loaf, but neither side total dominance. Distinguishing between the rights of embryos and the rights of fetuses would accomodate the most pressing needs of each of the contending parties and defuse the issue to some extent. Pro-life forces would be able to proscribe the late term abortions that are most repugnant to them,. while pro-choice forces would retain the option of safe and legal abortion as a medical option even though the time frame of availability would be shortened.

Conclusion

124. An alternative to the viability standard exists that would provide a well-reasoned solution to the abortion stalemate. The scientific distinction between embryos and fetuses was recognized long before Roe was decided and was proposed as a legal distinction by the plaintiff's attorney in that case. Making a legal distinction between embryos and fetuses has the potential to preserve as a constitutional principle a woman's right to choose to terminate a pregnancy while also addressing the most compelling concerns of those currently opposed to abortion.