Now that the Supreme Court has overturned Roe v. Wade, states have begun enforcing statutes that forbid abortion. The states with laws specifying that personhood begins at the moment of conception carry extra baggage: Paradoxically, death rates for their youngest citizens will spike. Statutes supposedly intended to protect the lives of the unborn will instead, at least on paper, produce a result that would ordinarily be reckoned as catastrophic and demand dramatic responses that have nothing to do with abortion.
Those enacting these statutes have failed to face squarely the fact that more than 30 percent of human embryos spontaneously self-abort. This occurs most often within weeks of conception, and without the knowledge of the pregnant woman, but there is no doubting that it does occur, day after day. Laws stipulating that human personhood begins at conception mean that each of these rejected embryos is the death of a young human being.
Deaths of the very youngest are conventionally recorded in health statistics as the “infant mortality rate,” defined as the number of deaths per 1,000 live births. These statistics have not traditionally included stillbirths. State statutes stipulating that human life begins at conception specifically negate the moral basis for defining the infant mortality rate in terms of live births, however, broadening the scope of society’s concerns to include the death of every fertilized egg. The intent of these statutes was, of course, to provide to these youngest the protection of the state against intentional termination of life, but by erasing birth as the starting point for the state’s protection, it simultaneously, if inadvertently, also removes birth as an event of any significance for public health. In effect, these laws reclassify stillbirths as deaths of the very young and record their passing not as shadows on the well-being of pregnant women but as losses of life on their own account.
Deaths of the very young are taken seriously by governments worldwide, both because any death of a child is a tragedy and because mortality rates are widely viewed as indicators of a population’s overall health. Reducing the rate of mortality of the youngest in the United States was among the first priorities of the federal Children’s Bureau when it was created by President William Howard Taft in 1912. It has long been a mark of shame that dozens of countries, including Bosnia and Belarus, have lower infant mortality rates than the United States.
States with laws tying human personhood to conception have shown great concern about their own infant mortality rates. In 2017, for example, Gov. Kay Ivey convened the Alabama Children’s Cabinet to hasten progress in lowering the state’s rate, which then was 9 per 1,000 live births — making it the last in the nation. The resulting State of Alabama Infant Mortality Reduction Plan of 2018 set a goal of achieving a 20 percent reduction in infant mortality in three targeted counties within five years.
Thanks to the Dobbs decision overturning Roe and Alabama’s Human Life Protection Act, adopted in 2019, every fertilized egg that self-aborts would count as the death of a young human being. By this reckoning, the mortality rates of the youngest people in Alabama increased from 9 per 1,000 (excluding stillbirths) before Dobbs to 319. By comparison, the (unadjusted) infant mortality rate in Afghanistan — the world’s highest and a cause for great concern in global health — is 105.
If Ivey felt impelled by an infant mortality rate of 9 per 1,000 to convene a meeting of her Children’s Cabinet, and then took credit for a plan to reduce this rate in three counties by 20 percent, what kind of response would be appropriate to address a mortality rate of 319? If these 319 were among those we conventionally view as infants, and they were dying each day in Alabama from, say, a horribly more lethal coronavirus variant that targeted the youngest among us, all of us would count it as a five-alarm public health emergency. Wouldn’t we call for a remedy to be developed at warp speed?
And if scientists told us that they were at a loss to save these children because too little was known about the causes of these deaths and that there was no clear pathway to develop a remedy, would we not call for a crash research program — something on the order of the Manhattan Project, or a moonshot, whatever it takes — rather than complacently accept the deaths of 319 per 1,000 of the youngest persons, day after day and year after year?
A week has passed since Dobbs was handed down, and yet there are no reports of woe and mourning in Alabama or the other states that have enacted these laws, such as Oklahoma, Arkansas and Missouri. State law has affirmed that the death of every embryo as a result of self-abortion is the moral equivalent of the death of an infant, but perhaps the citizenry has not yet become aware of the implication for the mortality rates among their youngest. If they don’t know that nearly a third of fertilized eggs perish spontaneously every day, that would be understandable. What will they think when they find out this inconvenient truth? Our guess is that for all but a few, the most common response will be a shrug. And what message about the beginning of human personhood is communicated in that shrug?
The obvious response is that the death of an embryo is not the kind of loss that upsets us the way the loss of children and infants does, nor indeed even a cause of the sorrow that we might feel when a late-term pregnancy is terminated in stillbirth. Yet Alabama’s Human Life Protection Act affirms the contrary. That has strange implications that extend beyond these nonsensical spikes in mortality rates.
No one knows whether those pregnancies could be prolonged by prompt medical intervention, because no one has thought it worthwhile to try. But transient pregnancies are detectable: The body produces hormones that increase during pregnancies and then, in a large number of cases, suddenly stop. That’s how we know that spontaneous abortion happened. If the lives of millions of babies are endangered, it follows, then, that the state would be justified in demanding that women be constantly tested for pregnancy. Under present law, a parent whose neglect endangers a child’s life can be criminally prosecuted, and child welfare authorities have the power to investigate whenever there is any likelihood of such danger. Those laws have sometimes been deployed against pregnant women. If every fertilized egg were a person, the state would be justified in carrying out constant, intrusive surveillance of all women of childbearing age.
It is unlikely that the fruits of this surveillance would be an increase in the number of live babies. The eggs that spontaneously abort are probably defective in some way. But abortion opponents already think that abortion is wrong, even if the embryo suffers birth defects so massive that it will live only a few days: Killing it is still wrong. The same logic easily applies to eggs that could be kept alive for a short time, dying in the fourth rather than the second week of pregnancy, for example.
It is not clear how, if one posits that an embryo is a person from the moment of conception, one avoids this totalitarian nightmare. In fairness to the antiabortion movement, almost none of them want that. But how do they avoid that conclusion? Note that some of these state laws make exceptions for pregnancies resulting from rape or incest, or cases in which abortion is needed to save the life of the pregnant woman. Though perhaps these exceptions are offered merely as accommodations to political necessity, anyone who favors them would seem not to believe that embryos and fetuses have the same moral status as adults and children.
We are not claiming that we can prove that a fertilized egg is not a person with rights. No one has come up with a definitive argument showing that either side of that debate is correct or mistaken. Advocates on each side have pointed to biological data that they find supportive of their view; in most cases, the other side acknowledges the biology but denies that it bears on the moral issue. Those whose position derives from faith cannot convince those who do not share that faith. Philosophers have in recent years introduced many novel arguments, but none has established a consensus. It seems unlikely that the debate will ever be resolved.
Yet a clear resolution is necessary to justify the crushing burden that an uncompromising abortion ban imposes on women. If you’re going to do this to people, you had best be sure that you’re right — but the fact of spontaneous abortion shows that opponents of abortion do not themselves believe what they are saying. If they don’t, why should we?