A probate judge in Alabama has made an unprecedented ruling that a six-week-old embryo has legal rights. The man pursuing the wrongful death lawsuit on behalf of “his deceased child” is suing the clinic at which his then girlfriend had an abortion and the pharmaceutical company that manufactured the abortifacient pill that she took there.

In 2016, Ryan Magers was 19 and unemployed, and his then girlfriend was 16 and a high school senior. According to the girl’s father, Magers pressured her into having sex. When she discovered she was pregnant, she let Magers know. He told her not to have an abortion. However, with the approval of her parents, she decided to have one. On February 10, 2017, six weeks into the pregnancy, she went to the Alabama Women’s Center, and took the abortifacient pill. Two years later, in January 2019, Magers, assisted by the anti-abortion organisation Personhood Alabama, filed his petition to serve as the representative of the estate of “his deceased child, BABY ROE”.

It is highly unlikely that Magers will succeed in his lawsuit. The current law in the United States is against him. In Conn v. Conn (1988), the Court of Appeals in Indiana reversed a lower court’s order granting a husband, Erin Andrew Conn, a temporary injunction against his wife, Jennifer Ann Conn, preventing her from having an abortion when she was six weeks pregnant. Appealing to the U.S. Supreme Court decision in Roe v Wade (1973), the appellate court ruled that “A married woman has an unconditional right to have an abortion in the first trimester” and “Erin has no right to veto Jennifer’s decision to obtain an abortion as such decision concerns only her.”

Nevertheless, the fact that Magers was able to get a judge to rule against a pregnant woman on behalf of a six-week old embryo is a sign of how far the anti-abortion movement in United States has come.

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"Even if Magers is right in thinking that the six-week-old embryo is as much his as his ex-girlfriend’s, the pregnancy is only hers"

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To be sure, Alabama is one of the most anti-abortion states in the United States. In November 2018, 59 per cent of voters approved amending the state constitution to “recognize and support the sanctity of unborn life and the rights of unborn children, most importantly the right to life in all manners and measures appropriate and lawful; and to provide that the constitution of this state does not protect the right to abortion or require the funding of abortion.” Pregnant women who wish to have an abortion in Alabama must now receive state-directed counselling, in which the embryo (up to eight weeks), and the foetus (after eight weeks), are both referred to as an ‘unborn child’, and women are told that a potential complication of having an abortion is that they may die – which isn’t the case for safe, hospitalised procedures. There are only three abortion clinics in all of Alabama, with its population of 4.8 million (compare that to California’s 152 clinics for its population of 39.5 million). The state has made it difficult for any of them to stay open, by imposing challenging requirements in terms of space and inventory, and it even passed a law requiring every abortion clinic to be at least 2,000 feet away from schools with pupils up to fourteen years old, reflecting laws for sex offenders (although this law was later declared unconstitutional).

SUGGESTED READING Why Sexual Morality Doesn't Exist By Alan Goldman Granted that Magers is destined to lose on the legal front, there is still the question of whether Magers has any moral ground to stand on. To determine this, it is worth considering the main arguments in defence of, and against, abortion.

Anti-abortion organisations argue that foetuses and embryos have a right to life, because they are babies – or, in less colloquial language, they are persons, and persons have a right to life.

Defenders of abortion agree that persons have a right to life. They just deny that embryos and foetuses are persons. Because they are not persons, they do not have a right to life. Anti-abortion organisations can object that newborn babies are indistinguishable from late-term foetuses, and that, short of denying that newborn babies are persons, some foetuses (at least) are persons and have a right to life. However, this objection would fail to help Magers. A six-week-old embryo lacks all of the qualities that make something a person. It lacks consciousness, for example. It is similar to the frozen fertilised eggs kept in fertility clinics, which, if not implanted, can be destroyed at the request of the women from whose eggs they were created. Magers has said that “I believe every child from conception is a baby and deserves to live.” But that implies that frozen fertilised eggs kept in fertility clinics are babies too, which is dramatically at odds with how they are treated.

But even if an embryo or a foetus has a right to life, having a right to life is not enough to prohibit abortion, according to its defenders. Their other argument is known as the bodily autonomy argument (or the feminist argument, or the Good Samaritan argument). If a person – with a right to life – uses my body for sustenance, then he or she must have my permission. It is my body, after all. I can refuse to allow someone to use my body for sustenance, even if the person will die as a result. If your child has a rare deadly blood disease that can only be cured by being attached to my body for nine months, I can still refuse, even if your child dies as a result. Your child’s right to life is not the same as the right to use my body to stay alive. The same is true of embryos and foetuses. If they use my body for sustenance, they must have my permission. I can refuse that permission, even if they die as a result. If I don’t wish to be pregnant, I don’t have to be pregnant, even if the only way to stop being pregnant is to have an abortion. Magers has said, “I'm here for the men who actually want to have their baby.” But this is about being pregnant. Men cannot be pregnant. Even if he is right in thinking that the six-week-old embryo is as much his as his ex-girlfriend’s, the pregnancy is hers. It is her decision, and her decision alone, to be pregnant or not. Hence, it is her decision, and her decision alone, to have an abortion or not.

Magers has no moral ground to stand on. His ex-girlfriend has the right to end or terminate her pregnancy, if she does not wish to remain pregnant. As the court stated in Conn v. Conn, “such decision concerns only her.” In addition, at six weeks, the embryo is not a person, and does not have a right to life. As the court also stated in Conn v. Conn, “in the first trimester” a woman “has an unconditional right to have an abortion.”