1. See Thomson, Judith Jarvis, A Defense of Abortion , 1 Phil. & Pub. Aff. 47–66 (1971)Google Scholar. There is more to Thomson's argument than GST alone suggests. For a detailed exposition and defense of Thomson's argument, see David Boonin, A Defense of Abortion (2003), ch. 4.

2. Both exceptions are, naturally, subject to proportionality requirements. Actions taken in self-defense must be not only necessary to resist the harm threatened by another person but also proportionate to that harm (one may not kill in self-defense to avoid sustaining a minor injury). Homicides performed out of necessity are also subject to at least the proportionality requirement that more of value—namely, human life—is preserved by the killing than is lost by it, and even then philosophers heavily dispute which side constraints on necessity killing still apply. I do not explore these problems here, but it ought to be acknowledged that in order to be convincing, JHT would need to show that abortion meets these conditions.

3. Ronald Dworkin, Life's Dominion: An Argument about Abortion and Euthanasia (1993).

4. Id. at 23.

5. Id. at 22.

6. Id. at 10.

7. Id. at 4.

8. Id. at 10.

9. Id. at 9–10.

10. Id. at 10.

11. Id.

12. Id. at 14.

13. Id.

14. Id. at 11–13.

15. Id. at 12.

16. Id. at 13.

17. Id. at 15.

18. Id. at 70.

19. Id. at 90.

20. See id., ch. 3 generally, especially 91.

21. Id. at 101.

22. Id. at 20.

23. Roe v. Wade, 410 U.S. 113 (1973).

24. Dworkin, supra note 3, at 159.

25. See, e.g., amendment SB 1391 to Tennessee's fetal homicide law (tenn. code. ann. §§39-13-107 & 39-13-214), allowing a woman to be prosecuted if her child is born addicted to or harmed by the narcotic drug and the addiction or harm is a result of her illegal use of a narcotic drug taken while pregnant. A similar bill (SB 559) was introduced into the Oklahoma Senate in 2015. The bill passed in the Senate but failed to pass in the House. For the full bill text, see http://webserver1.lsb.state.ok.us/cf_pdf/2015-16%20ENGR/SB/SB559%20ENGR.PDF. On April 3, 2015, Indiana resident Purvi Patel became the first pregnant woman found guilty of violating a fetal homicide law, and was sentenced to twenty years in jail, although the sentence was subsequently reduced; see Purvi Patel Has 20-Year Sentence for Inducing Own Abortion Reduced, Guardian, July 22, 2016, https://www.theguardian.com/us-news/2016/jul/22/purvi-patel-abortion-sentence-reduced. While feticide laws have long existed in many American states, reliance on one to convict a woman of her own fetus's homicide was an unprecedented development. It could be objected that fetal-harm laws such as the criminalization of drug use during pregnancy can be explained by appeal to harm threatened to the born child, and thus made compatible with the view that the fetus does not currently possess that same status. The same is clearly not true, however, of fetal homicide laws, since there is no born child that such laws seek to protect. Laws such as these clearly elevate the status of the fetus to that of a rights-bearing person.

26. Kamm, Frances, Abortion and the Value of Life: A Discussion of Life's Dominion , 95 Colum. L. Rev. 160–221 (1995)CrossRefGoogle ScholarPubMed.

27. Dworkin, supra note 3, at 20–21. On 21, he says:

28. In 2011 alone, fourteen state legislatures introduced twenty-six “personhood” measures. There have been failed attempts to pass such legislation by voter ballot in Colorado, Iowa and Mississippi and North Dakota. For a summary of these measures, see “Personhood” Measures: Extreme and Dangerous Attempts to Ban Abortion, NARAL, Jan. 1, 2017, https://www.prochoiceamerica.org/wp-content/uploads/2017/01/5.-Personhood-Measures-Extreme-and-Dangerous-Attempts-to-Ban-Abortion.pdf (last accessed April 13, 2017).

29. See Sara Dubow, Ourselves Unborn: A History of the Fetus in Modern America (2011), at 139–146. Dubow documents that between 1977 and 1998, at least two hundred women in thirty states were prosecuted for crimes of fetal abuse, which included prenatal narcotics exposure crimes.

30. The Partial-Birth Abortion Ban Act 2003, which prohibited almost absolutely a particularly controversial method of late abortion, cited “congressional findings” that “unborn infants” past a certain gestational age are caused pain by the procedure. The constitutionality of the 2003 Act was challenged but upheld in the Supreme Court in Gonzales v. Carhart, 550 U.S. 124 (2007). In May 2015, a bill called the Pain-Capable Unborn Child Protection Act also passed through House of Representatives. The bill seeks to ban all abortion after twenty weeks, explicitly on grounds of fetal pain, other than in exceptional circumstances. It has yet to pass in the Senate, however. Forty-one states already have bans on late-term abortions. In Nebraska, a statute banning abortion after twenty weeks on grounds of fetal pain was passed in 2010. Since the 2015 bill passed through the House of Representatives, twenty-five states have considered similar legislation related to fetal pain and/or fetal anesthesia. Eight states—Arkansas, Georgia, Louisiana, Minnesota, Oklahoma, Alaska, South Dakota, and Texas—have passed laws mandating the inclusion of information on fetal pain in their state-issued abortion-counseling literature. See State Policies on Later Abortions, Guttmacher Institute, https://www.guttmacher.org/state-policy/explore/state-policies-later-abortions (updated Apr. 15, 2017).

31. The plain objective of such regulations is to provoke revelation of what is thought by their proponents to be a self-evident truth: that the fetus is not just a burgeoning human life but a fully instantiated, rights-bearing person. For a good description of different state versions of the law, see Sanger, Carol, Seeing and Believing: Mandatory Ultrasound and the Path to a Protected Choice , 56 UCLA L. Rev. 351–408 (2008)Google Scholar. Some states require the provider to show and describe the image; others provide that the woman may decline to see or look away, though her decision to do so must be recorded. The Texas version of the law requires the practitioner to make the fetus's heartbeat audible to the pregnant woman.

32. Dworkin, supra note 3, at 15.

33. Id. at 16.

34. Kamm, supra note 26, at 167; emphasis added.

35. Don Marquis comments that Dworkin accompanies this “crucial assertion”—that interests require some form of consciousness—“with no argument whatsoever,” even though “his analysis of the ethics of abortion collapses if it is untrue”; see Marquis, Don, Life, Death and Dworkin , 22 Phil. & Soc. Criticism 127–131 (1996)CrossRefGoogle Scholar (book review).

36. Dworkin, supra note 3, at 110–112.

37. Dworkin, supra note 3, at 16.

38. Id. at 117.

39. Id. at 117.

40. See Roe, supra note 23, at 157–158.

41. Justice Blackmun stated specifically that “If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment”; id. at 157.

42. Dworkin, supra note 3, at 110.

43. Planned Parenthood v. Casey, 505 U.S. 833 (1992).

44. The adoption of a constitutional amendment to grant the fetus personhood status under the Fourteenth Amendment is (at the time of writing) a core tenet of the Republican National Committee's platform on abortion. See Republican Platform: A Rebirth of Constitutional Government, GOP, https://www.gop.com/platform/we-the-people/.

45. Brown v. Topeka Board of Education, 347 U.S. 483.

46. Dworkin, supra note 3, at 112.

47. Id. at 13.

48. Id. at 10.

49. This point can be reinforced merely by considering the multitude of hypothetical revelations about the fetus that would not obviously end argument about whether it meets the conditions for personhood. We might suppose it is discovered that the human fetus of a certain gestational age remembers things, feels pain, and has rudimentary desires. There will still be those who claim that the ability to breathe independently is a necessary condition for personhood. Likewise, we could image scientists assuring us that a fetus possesses no conscious life whatsoever, no matter how rudimentary, before birth. For many, this will make no difference to the fetus's personhood status, which owes to its membership in the human species, not any exercisable psychological capacity. There is, I think, no plain fact about the fetus that would end argument about prenatal personhood one way or the other. This is, of course, entirely what we should expect of a dispute that is fundamentally moral (having to do with the value and rights that ought to be ascribed to creatures possessing this or that quality) and not scientific.

50. Perhaps all moral questions are intractable past a point—the point at which their answer depends on yet more deep-seated philosophical commitments, argument about which is bound to be interminable.

51. Id. at 165.

52. The definition of religious belief to which Dworkin appeals seems, rightly, to look to the content of the belief rather than the fervency with which it is held, although the content requirement itself is a fairly loose one, capturing everything, he says, that “touches on” the “ultimate purpose and value of human life itself.” One might think that abortion beliefs are often religious in a different way, which is that they are mandated by the religious institutions to which many people are affiliated (as is surely true of American Christian evangelicalism, Catholicism, Irish Protestantism, and so on).

53. Marquis supra note 35, at 129.

54. Naturally, the debate about precisely what a “consciousness” criterion of personhood requires and the reductio ad absurdum examples it may throw up is wide and far-reaching. Human beings who are asleep, or under anesthesia, or in reversible comas are not currently conscious but are, it seems, persons nonetheless. As a response to these counterexamples, those who support a consciousness-based criterion of personhood are likely to refine that criterion to require that a human being has experienced conscious states or, perhaps, retains the current, immediately exercisable capacity to experience conscious states. It will no doubt be objected in response that these refinements do not adequately cater to all of the counterexamples or that they cannot do so without widening the net of personhood beyond born human beings. I am not going to pronounce on this debate here since I wish, as far as possible, to assess Dworkin's claims about the relevance of the personhood question without expressing commitment to any substantive conception of personhood.

55. This will not be the case where the fetus, due to some congenital or developmental defect or accident, will never come to possess the mental states that Dworkin associates with personhood, one of the many problems for potentiality-based theories of fetal moral status.

56. I do not mean to assume here that neonates possess philosophical personhood whereas late-term fetuses do not, or that birth is morally significant for personhood status, questions about which there is a good deal of writing. My point is only that the typical assignation of personhood to neonates is reason to examine seriously the moral status of late fetuses, which closely resemble neonates in physiological development (although there are also marked physiological differences) and are closely biologically continuous with them.

57. Warren, Mary Ann, On the Moral and Legal Status of Abortion , 57 Monist 43–61 (1973), at 43CrossRefGoogle ScholarPubMed.

58. Id. at 52.