Personhood was not an important pro-slavery argument

At the start of the month, Megan McArdle — who is, I think, pro-choice — wrote:

But in this case, I think the analogy to slavery is important, for two reasons. First of all, it was the last time we had an extended, society-wide debate about personhood. [...]

Listening to the debates about abortion, it seems to me that really broad swathes of the pro-choice movement seem to genuinely not understand that this is a debate about personhood, which is why you get moronic statements like “If you think abortions are wrong, don’t have one!” If you think a fetus is a person, it is not useful to be told that you, personally, are not required to commit murder, as long as you leave the neighbors alone while they do it.

Conversely, if Africans are not people, then slavery is not wrong.

Although Megan is (I think) pro-choice, I’ve certainly heard this argument made by pro-lifers any number of times. But “lack of personhood” was not, in fact, a major pro-slavery argument. I’d recommend listening to (or reading the transcript of) this lecture by Yale historian David Blight, in which he outlines the pre-civil-war pro-slavery arguments.

The entire lecture is worth your time, but here — heavily edited for space — is Blight’s outline of the important pro-slavery arguments.

Now, there are many ways to look at pro-slavery. Deep, deep in the pro-slavery argument–I’m going to give you categories here to hang your hats on–deep in the pro-slavery argument is a biblical argument. Almost all pro-slavery writers at one point or another will dip into the Old Testament, or dip into the New Testament–they especially would dip to the Old–to show how slavery is an ancient and venerable institution. [...] You can therefore assume it was divinely sanctioned. [...]

A second kind of set of arguments, I’ve already referred to, are the historical ones. Here it is not just the venerability of slavery, how old it is, but it’s the idea that it has been crucial to the development of all great civilizations. That slavery may have its bad aspects but it has been the engine of good, it has been the engine of empires, the engine of wealth, the engine of greatness. How would you have had Cicero? How would you have had the great Roman philosophers and thinkers? [...]

Pro-slavery ideology is also part of–at the same time it’s resistant to–the greatest product arguably of the Enlightenment, and that is the idea of natural rights; natural law, natural rights, rights by birth, rights from God, being born with certain capacities. Now pro-slavery writers were inspired by this to some extent, but many of them will simply convert it. They will convert it–they’ll take portions of John Locke that they like, and not the others–and they’ll say the real rule of the world is not natural equality, but it is natural inequality. Humans are not all born the same, with the same capacities, abilities.

Now, then there’s a whole array of economic arguments, and the cynic, the economic determinist, simply goes to the economic conclusions of pro-slavery and nowhere else. [...] “You will say that man cannot hold property in man. The answer is that he can, and actually does, hold property in his fellow, all over the world, in a variety of forms, and has always done so.” [...]

Some would get worried and they would discuss slavery as a necessary evil–this system entailed upon them. [...] “But the question is, in my present circumstances, with evil on my hands, entailed from my father, would the general interest of the slaves and community at large, with reference to the slaves, be promoted best by emancipation? Could I do more for the ultimate good of the slave population by holding or emancipating what I own?” [...] he develops a highly intricate theory of how he’s going to use slavery to save black people. He’s going to ameliorate their conditions, he’s going to make their slavery on his plantations so effective, so good, such a even joyous form of labor, that he will be doing God’s work by improving slavery.[...]

There are many pro-slavery writers who developed, like James Henry Hammond, what I would call the cynical or amoral form of pro-slavery argument; and this is a potent form of argument when you think about it. [...] “The only problem with slavery in America,” said James Henry Hammond, is that too damn many northerners didn’t understand it is the way of the world as it is, and they ought to stop talking about the world as it ought to be.” [...] “Is it not palpably nearer the truth to say that no man was ever born free and that no two men were ever born equal? Man is born in a state of the most helpless dependence on other people.”

And then there’s the whole vast category of racial defense and justification of slavery. [...] Probably the most prominent pro-slavery writer to make the racial case–and they all did–but probably the most prominent was George Fitzhugh. [...] “The Negro,” he said, “is but a grownup child and must be governed as a child. The master occupies toward him the place of parent or guardian. Like a wild horse he must be caught, tamed and domesticated.” [...]

And lastly, there was a kind of utopian pro-slavery. [...] In Hughes’s vision and Hughes’s worldview slavery was not only a positive good–it was the possibility of man finding a perfected society, with the perfect landowners fulfilling their obligations, supported by a government that taxed the hell out of them to do it, and perfect workers, would make the South into the agricultural utopian civilization of history.

It’s politically useful for pro-lifers to pretend that abortion and slavery were similar debates, and that the major argument for slavery was the claim that Africans were not people. But that’s simply not true.

(Note that in the lecture I’m quoting, Blight’s intent wasn’t making a case about abortion in either direction — Blight isn’t shading his arguments towards a pro-choice or pro-life outcome, he’s simply explaining the history of pro-slavery arguments. Can pro-lifers cite similarly non-biased sources to support their argument?)

See also: Ta-Nehisi.

* * *

P.S. I can’t resist pointing out that the first few arguments Blight lists — the institution goes back forever, it’s in the Bible, and it’s the foundation of civilization — are also the major arguments used in the present day to argue for banning same-sex couples from marriage.

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53 Responses to Personhood was not an important pro-slavery argument

  1. 1
    Liz W says:

    Hmm. I’m an English lawyer, not a US one, but here, the concept of legal personality encompasses arguments about whether there is a legally relevant distinction between adults and children, men and women, and so on. The course materials for the Open University course I tutor include the historical debate about racial distinctions as part of the legal personality materials. From that point of view, Fitzhugh’s abhorrent claim that Negros are children looks to me like a classic personhood argument. A better way to counter this line of argument from opponents of legal abortion, in my view, is to point out that legal personality is not a binary proposition; different classes of legal person have different legal rights, so merely extending legal personhood to fetuses would not automatically give fetuses a right to life at the expense of another person’s bodily autonomy, and thus the concept of personhood does not really advance the debate.

  2. 2
    Dianne says:

    It’s an odd argument for the “pro-life” movement to use, since they are objectively pro-slavery. Or at least indentured servitude. I can’t think of what else one can call forcing one person to support another without permission or compensation.

    If feti (and embryos, blastulocysts, etc) are to be considered people then it’s not really a question of whether abortion is right but rather which is more wrong: allowing someone to die or forcing someone to support another person’s life at risk to her own without her permission. If the latter, then we need to follow through and give all people the rights that we’re giving to fetuses: organ, blood, and bone marrow donation must be mandatory. Because it’s murder to allow someone to die when your kidney, blood, or hematopoietic stem cells could have saved them. By the pro-life definition of murder. (Incidentally, just in case the relative risk argument starts up here are some starter stats: Blood donation is close to risk free. I don’t know of any deaths that have occurred due to blood donation using current techniques. Bone marrow donation is at least an order of magnitude safer than completing a typical pregnancy. Kidney donation is about as dangerous as completing an average risk pregnancy: some studies show slightly more dangerous, some slightly less.)

  3. 3
    Manju says:

    very interesting. i never knew this. i’ve long assumed blacks as animals or perhaps sub-human or at a minimum a lesser form of human was a major justification for slavery.

    i can’t blame megan for assuming personhood, or lack thereoff, was once a serious debate. i recall this theme–that portrying blacks as animals was once (and perhaps still is) an intricate part of white supremacist ideology–popping up without correction on many progressive blogs…when discussing various attempts to associate obama with curious goerge or the lebron james/king kong cover, for ex.

  4. 4
    philfemgal says:

    I would have thought that two of the arguments Blight mentions–the argument that humans are born naturally unequal to one another (in opposition to Locke’s arguments) and the argument that blacks are essentially children–are forms of personhood arguments. And isn’t the Dred Scott case, in a sense, about personhood?

    Of course the word “personhood” may not have been mentioned in these arguments, but I don’t think that’s surprising. Other than those engaged in the abortion debate or the animal rights debate, the only people who are likely to speak of personhood are moral philosophers. But looking back historically many of the moral philosophers who are most influential in developing ideas essential to our contemporary philosophical understanding of personhood, didn’t use that concept themselves (e.g. Locke and Kant). Kant for instance clearly doesn’t think that animals are persons and so we have no moral duties toward animals. But if I recall, he never uses the term “personhood” to make this argument.

    Even within the abortion debate, in my experience, most of the debate is not carried out explicitly in terms of personhood. Many people who oppose abortion tend to talk about embryos/fetuses being “human” or “a life.” I would still group these arguments as personhood arguments–just ones which are not very good at using concepts clearly (since obviously merely being biologically human or being alive are not traits that give one a right to life since brain dead persons are human and bacteria are alive).

  5. 5
    Phlinn says:

    “..forcing one person to support another without permission …”

    This is a very misleading description of many ostensibly pro-life individuals. Most pro-lifers would accept legal abortion up to a certain point, but not afterwords. It does suit some of the vocal minority who believe abortion is wrong immediately after conception. Those who don’t object until, for instance, the halfway mark could reasonably believe that by not aborting until then, the mother gave her permission.

    On another note, they can’t be said to objectively support indefinite support for another without permission, which is a fairly important distinction between motherhood and slavery.

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  7. 6
    Adrian says:

    It looks to me like the definition of a “personhood” argument is not fixed very solidly. The whole set of arguments based on defining a category of “inferior people,” who deserve to be treated differently… is that denying “personhood,” by claiming they don’t have so much of it as [normal people/ubermenschen/the unmarked state]? Or is it acknowledging personhood, because an inferior person is different from not being a person at all? (Hath not a Jew eyes?)

  8. 7
    Lexie says:

    I always grant pro-lifers the personhood argument and then go on to argue all the things that Dianne brings up.

    Phlinn: As far as most people would grant abortions up to a point…huh? I think that is wishful thinking. Legally, abortions can be had, no questions asked up to 12 weeks in every state (and then after that point, it varies by state). This is when the majority of abortions occur, and when the reasons for said abortions are much more likely to be nonmedical. (i.e. unexpected pregnancy is inconvenient or financially burdensome or other such reasons). Nonmedical reasons are the reasons that pro-lifers seem to object to the most. After a certain point, say the halfway point, abortions are much, much rarer but also more likely to be caused by decisions related to the health of the mother or the fetus.

    If these are the abortions that “most people” object to, then they are exactly the ones that Dianne is talking about. The ones where you are putting the personhood of a fetus up against the personhood of the woman risking her own health and life to carry it.

    Unless, like McCain, you think that all women are just lying whores and only make up “health of the mother” excuses for their own convenience to have those oh-so-easy and convenient 18 week abortions.

  9. 8
    Sebastian says:

    I don’t really understand how you define a personhood argument. It looks to me like the “people are unequal” and the “Negros are like children” arguments are personhood arguments attacking the full personhood of slaves. I mean it is true that no one was calling it “personhood arguments” at the time, but it is tough square my understanding of pershood arguments with an exclusion of those two.

    Do you think of personhood as a fully binary category, maybe? Either wholly not a person or wholly a person? I don’t think it is usually looked that way, but I guess it would explain it.

  10. 9
    ed says:

    Megan McArdle — who is, I think, pro-choice

    Megan McArdle is–I am supremely confident–a poor thinker and a poor writer. It would be nice just to ignore her, although she is–inexplicably–somewhat prominent in the blogosphere, what with her position at The Atlantic and what have you.

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  12. 10
    Ampersand says:

    I guess I am defining the “personhood” argument differently than many others here. The “personhood” argument regarding abortion is not that a embryo is childlike; it is that the embryo does not have a functioning brain cerebral cortex at all, and in all important ways not like a person at all. (See, for example Robert Carrier’s arguments in this debate.)

    If I argue that my friend Sydney shouldn’t have the right to drive, because as a five-year-old she lacks the capacity to drive responsibly, I am in no way suggesting that she is not a person. That’s not even, in any way I can see, related to an argument that Sydney is not a person. It’s an entirely separate argument.

    Likewise, if someone else argues that Jews are childlike, and therefore I should not have the right to drive, that’s offensive and bigoted, and it casts me as less than gentiles; but it’s not the same as saying I’m not a person.

  13. 11
    Dianne says:

    On another note, they can’t be said to objectively support indefinite support for another without permission,

    Ok, I’m willing to back off of the claim. They’re objectively pro-indentured servitude for women. Indentured servitude, unlike slavery, ends after a set period of time. Heck, only 9 months is getting off light: it traditionally lasts 7 years! So women should be grateful to the generous men who treat them so kindly, right?

  14. 12
    Dianne says:

    Most pro-lifers would accept legal abortion up to a certain point, but not afterwords.

    It may be that most people who define themselves as “pro-life” accept abortion on demand up to a certain point and/or accept that medically necessary abortions may occur at any time during a pregnancy. However, the opinion leaders of the “pro-life” movement advocate complete illegalization and, in many cases, illegalization of birth control. So the “silent majority” would do well to rethink their support of people who claim to be representing them but are, in fact, proposing laws that they would not in the least support.

  15. 13
    Phlinn says:

    Dianne, I honestly think your comment on support of political leaders is true of a large number of mass movements. I could swear I had seen a blog post where someone pointed out that average american citizens have much more moderate beliefs than either pro-choice or pro-life activists, and used poll results to make the point. Just can’t find it off hand at the moment, so take that with a grain of salt. I wish more people would look at any given political group more carefully before supporting it.

    At what point can it be said that a mother has given permission for the child to grow in her womb and be delivered? I have no issue stating that a middle class single female, with access to any form of birth control she likes, has given permission by the halfway point by declining numerous chances to opt out. OTOH, an abused wife whose husband controls everything in her life hasn’t. The existence of a choice freely given is crucial to the validity of any sort of contract, and choosing pregnancy and seeing it through to validity should be treated as an implied contract. “Well, she made her choice” type arguments are extremely common components of the pro-life arguments I’ve encountered. Maybe the argument is better treated as an intersection of personhood and agency.

    As for “So women should be grateful to the generous men who treat them so kindly, right?” No, and I didn’t say otherwise. I was attacking your analogy, because your analogy was essential to your complaint that a personhood argument was odd for a pro-lifer. Analogies are generally a dangerous form of argument. For my own analogy, holding a ladder for someone so they can climb down it, then walking away while they are halfway down and letting them fall to their death, is a form of homicide.

  16. 14
    FurryCatHerder says:

    As with indentured servitude morphing into full-on slavery, prohibitions against all forms of birth control in many parts of the country (my mother nearly died while carrying me, and yet was denied a tubal ligation because she was 19 and white) has morphed into a full-on prohibition against abortion in many parts (and my 1st wife nearly died from a pregnancy in Plano because that city is so f’ing conservative still).

    Those people don’t care about others “personhood”, they only care about themselves and inflicting their values on others. Trying to make sense of either debate in a RATIONAL manner will never make sense if you try it on their terms. Indentured servitude turned into slavery in North America because land owners got tired of losing their cheap labor after 7 years, and then didn’t want to compete against the people they’d just freed. The justifications are all post-hoc. Abortion was known during biblical times and there were even legal structures in place for dealing with it. That fact was discussed during Roe V. Wade and both the biblical and “personhood” arguments are likewise post-hoc arguments.

  17. 15
    PG says:

    Re: McArdle’s post,

    The reason why pro-choicers don’t restrict the debate to the personhood/ is-it-human issue is that the pro-life side doesn’t consistently deem fetuses to be legal persons or even equally human. There’s not yet been a “pro-life” president who didn’t allow an exception for rape and incest. The criminal laws against abortion prior to Roe were in the public hygiene and morals sections of states’ statute books, not in the sections prohibiting homicide. Abortion was not categorized as a homicide crime but rather as an offense to public decency or a regulatory offense in the misuse of medical training. The idea that abortion prohibitionists always have founded their argument on the personhood/humanness of the fetus therefore is not historically plausible.

    McArdle provides no basis for her claim, “We expanded ‘persons’ to include fetuses in the 19th century, as we learned more about gestation.” She cites no statutes nor caselaw to back her contention. She also seems to believe that all people of African descent were not deemed persons under the law in the 1840s, when on the contrary the Dred Scot decision was revolutionary in its declaration that any black person descended of slaves was not a citizen. Even the famous 3/5 compromise was based on condition of servitude, not race. In some places, free blacks exercised all the rights of whites, and even owned slaves themselves.

    I don’t think McArdle has put much time into learning about personhood in the Anglo-American legal tradition. In a vague attempt to engage the pro-choice side, she makes some truly ridiculous comparisons, like “My parents significantly restrict my autonomy by continuing to be alive — if they died, I would inherit some money, which would increase my choices.” Of course, McArdle has no right to her parents’ money; they are free to will it to someone else, and the government could pass a confiscatory estate tax that makes her parents’ will irrelevant. A comparison of bodily autonomy with her having more consumerist choices indicates a very shallow concept of liberty that seems utterly bizarre in a self-proclaimed libertarian.

    A more intelligent question on which to turn the debate may be the rights that belong to different types of persons, except that I don’t think that actually has much precedent under our law. At most, our law has differentiated between citizens and non-citizens, but even that distinction has rarely been maintained when it comes to fundamental rights (e.g. the fact that my uncle is a permanent resident rather than a U.S. citizen does not allow the U.S. government to deprive him of the right to free speech, religion, against cruel & unusual punishment, etc.). And non-citizens also are not allowed to vote nor serve on juries, which I think are the only Constitutional rights of which Sydney is deprived (a driver’s license is a privilege); maybe also the right of gun ownership, though the extent of 2nd Amendment rights is definitely more limited than most others (e.g. felons and the mentally ill can be deprived of their 2nd Amendment rights, but not of freedom of speech, religion, right to privacy and a jury trial, etc.).

    Slaves generally had no enforceable rights: not to life, liberty, property, or anything else. They were regarded as a species of property under the law. If I were a slave mother and you killed my slave husband or son through gross negligence, I couldn’t bring any tort claim against you; only our owner could, and it would be the same tort claim he could bring if you killed his cattle. I think you can accurately compare the legal status of embryos and fetuses to that of slaves.

    What I doubt is that you will ever be able to convince even 50% of Americans that, say, a reproductive assistance clinic that negligently allows its generator to fail and thus renders non-viable a thousand embryos ought to be held liable in either criminal or tort law for the death of a thousand human beings. There are implications to declaring full legal personhood at the point of conception that go far beyond abortion, which is why legal personhood isn’t really a strong argument for the pro-life side unless they can keep people ignorant about what legal personhood actually entails.

  18. 16
    Sebastian says:

    “I guess I am defining the “personhood” argument differently than many others here. The “personhood” argument regarding abortion is not that a embryo is childlike; it is that the embryo does not have a functioning brain cerebral cortex at all, and in all important ways not like a person at all. ”

    Which leads pretty easily into the mushy middle position on abortion which is that it should be generally legal early (no personhood) and generally not late (much closer to personhood).

    “It may be that most people who define themselves as “pro-life” accept abortion on demand up to a certain point and/or accept that medically necessary abortions may occur at any time during a pregnancy. However, the opinion leaders of the “pro-life” movement advocate complete illegalization and, in many cases, illegalization of birth control. So the “silent majority” would do well to rethink their support of people who claim to be representing them but are, in fact, proposing laws that they would not in the least support.”

    This is a problem of alternatives. The opinion leaders of the pro-choice movement are extreme to the point of strongly resisting investigation or rule-making in late term abortions (where the personhood questions are strongest). It is virtually impossible that a pro-life leader will be able to pass laws deep into the worry zone (first trimester) so the better of the two bets for “most people who define themselves as “pro-life” accept abortion on demand up to a certain point and/or accept that medically necessary abortions may occur at any time during a pregnancy” is pro-life because the institutional structure is stacked against it going too far. If the opinion leaders of the pro-choice movement were more in line with the majority of people that might not happen, but since the current institutional hierarchy is in favor of the pro-choice side the leaders of the pro-choice movement don’t seem to feel the need to worry about them.

  19. 17
    Sebastian says:

    “There are implications to declaring full legal personhood at the point of conception that go far beyond abortion, which is why legal personhood isn’t really a strong argument for the pro-life side unless they can keep people ignorant about what legal personhood actually entails.”

    Who says that the full legal personhood question has to be resolved at the point of conception? What if it was at say 6 months gestation? And who said it had to be full legal personhood. People don’t get ‘full’ legal personhood until about age 21. But there might be personhood enough that you can’t choose to kill them except under extremely limited exceptions long before age 21.

  20. 18
    PG says:

    Sebastian,

    I am confused about what you consider to be “pro-life.” The current state of Constitutional law is that states can forbid abortions (with exceptions for the health and life of the mother) after viability, i.e. the point at which the fetus has a reasonable chance of surviving outside the uterus. I personally think that the ability to live without dependence on a particular individual is a reasonable standard for personhood; if your life is dependent on the life of a specific person, and no one else could volunteer to take over, you are not a person independent of your host.

    Pro-lifers position themselves in opposition to this legal rule. I have never read or discussed the issue with someone who considers herself pro-life yet is OK with the Roe-Casey standard. What do you consider the minimum bound for someone to be in the “pro life” camp?

  21. 19
    PG says:

    Sebastian,

    Also, I’m not sure what you consider full legal personhood if you don’t think it kick in until 21. If that’s meant to be a reference to drinking age, there’s no Constitutional right to consume alcohol.

  22. 20
    Lu says:

    I was reading up on Civil War history recently (with no specific end in mind, just for the fun of it), and I ended up rereading Gone With the Wind, or at any rate large chunks of it — since I was interested in it from a sociological/historical perspective I got to ignore the whole Scarlett-as-hypotenuse thing. GWTW pictures slaves as naturally gentle, hardworking (as long as someone keeps an eye on them), affectionate, loyal, not very brave or bright, and perfectly content with their lot until the Yankees come down and start messing with their heads and telling them they can have diamond rings and nice houses, not to mention white women, without ever having to work for anything (all of which most of them foolishly believe, see not very bright above). You know that bit from the presidential campaign about how Obama is going to take your hard-earned money away from you (hardworking, God-fearing, upstanding white people) and give it to someone else (shiftless, good-for-nothing n—–s)? That’s a direct descendant of the attitude of whites toward blacks in GWTW, and the longer I live and the more I see the more convinced I become that that attitude is alive and well today, especially in the South and in the Bible Belt. There were, and, I think, still are a ton of Christians who think black inferiority is divinely ordained, and that anyone who believes otherwise is flouting God’s will and perverting the natural order (see perfectly happy until heads messed with above; see also the infamous Cornerstone Speech).

    But none of that speaks to Amp’s main point. No pro-lifer I’ve ever met, including me in my youth, would ever condone abortion up until some point in a pregnancy; ime for a pro-lifer by the time a woman knows she’s pregnant, she’s morally bound to carry the pregnancy to term. The typical appeal is to maternal/chivalric instinct to protect the small and helpless.

    I consider myself pro-choice, but not a hard-liner: I take the view that by carrying a pregnancy past a certain point, I would put it about halfway or 20 weeks, a woman implicitly gives a fetus permission to occupy her body until birth or unless/until it threatens her health.

    I think it’s absolutely true that politicians and movement spokespeople on both sides take far more extreme and rigid positions than your average person-in-the-street. I know (online) at least one person who would be fine with a healthy woman’s aborting a healthy 35-week fetus just because she decided she didn’t want a baby after all; I also know people who think that a woman advised by her doctor that if she carries to term both she and the baby will die has to go through with it anyway, because it’s God’s will. I can’t express how abhorrent I find both of these positions.

  23. 21
    FurryCatHerder says:

    In my experience, pro-choice and pro-life are both graded on a sliding scale. I’ve known people who say they are pro-life, but who support very early term abortion. It might be “Plan B”, it might be “as soon as medically possible”, but there is some point when it was acceptable, followed by being unacceptable, with all but a few exceptions. Likewise, I’ve known many people who say they are pro-choice, but who oppose late term abortions for non-medical reasons, or political / ethical reasons, such as sex-selection.

    For me, if the fetus is healthy, the mother is healthy, the pregnancy is progressing normally and past the point of viability — real viability, not “heroic measures” viability — I’m sorry, but it’s too late. Where does that put me?

  24. 22
    Lu says:

    It puts you pretty close to me, FCH, for whatever that’s worth, although I would draw the line a bit earlier. I did make a mistake above: most pro-lifers (including me in my youth) would make an exception to save the woman’s life, and some would allow abortion after conception but before implantation (that would be Plan B, I think).

    On an abortion thread quite a while ago Mandolin and I (and someone else, can’t recall who) got into a discussion about the extreme pro-choice position (no state regulation of abortion, up to the woman and her doctor as long as the embryo/fetus is still inside), and she very patiently walked me through the logic of it, so that now while I still can’t get there, I can see it from here. I do realize that the idea is not to allow very late termination of a normal pregnancy but to leave the state out of rare cases where women have to make very painful decisions. Thanks, Mandolin.

  25. 23
    Dianne says:

    At what point can it be said that a mother has given permission for the child to grow in her womb and be delivered?

    An interesting question and one to which the answer is heavily context dependent. I would say that one could reasonably say that a woman had given implicit permission for the fetus to stay in her uterus if she hadn’t had an abortion by 20 weeks if and ONLY if the following conditions were met:
    1. Abortion in the first and early second trimester were readily available. Not blocked by half a dozen laws designed to scare women and/or make it more difficult for them to obtain abortions. Or by protestors physically blocking their access to clinics. Or by lack of clinics because no doctor is willing to live with the harassment and risk to their lives that would result from their providing abortions.
    2. Abortions were available at low or no cost. Not being able to raise the funds for an abortion earlier is the reason for a significant number of 2nd trimester abortions. Obviously, it would be better for all concerned if these abortions happened earlier.
    3. Exceptions are made for risk to mother’s life or health or for fetal anomolies. And health includes mental health. Depression and psychosis can kill and diseases of the brain are as debilitating, if not moreso, than diseases of any other organ. So no crap about “she’s just faking it”.

    If those criteria were met (as they are distinctly not in the US), I would be reasonably happy with laws restricting abortion after 20 weeks. As a practical matter, few abortions occur after 20 weeks anyway. However, one should remember that this is STILL giving the fetus privileges that we deny after birth.

    Suppose you decide to donate hematopoietic stem cells to someone who will otherwise die of a hematologic malignancy. You are the only matched donor so it has to be you or the person will die. As is currently standard practice, the cells will be withdrawn from your peripheral blood after stimulation with GCSF. You take the gCSF injections and start the leukopheresis. Half way through the procedure-long after you’ve taken the majority of the risk but before an adequate number of cells are obtained–you suddenly change your mind. What happens? Do the technicians say “don’t be a greedy explicative deleted, you agreed now go through with it?” and hold you down until the procedure is finished? No. That would be assault. They might say, “Are you sure?” They almost certainly would try to talk you out of stopping. But if you were emphatic they would have no choice but to stop. Despite the fact that the patient will die without the cells. Despite your prior consent. Despite the fact that the risk to you is minimal.

    So, why should we force women to continue a pregnancy-which is a far greater risk to her life even if it is a “low risk pregnancy”-if she decides against continuing at any point? Personally, the best answer I can come up with is “because people find the idea of a 39 week abortion icky and no one really wants one anyway.” Ok for practical purposes, but not really a morally consistent position.

  26. 24
    PG says:

    Dianne,

    I don’t think we ever should force a woman to continue a pregnancy, but I would be OK with laws that required women to choose, at the point of probable viability, between delivering the baby right then and going full term. I’d be willing to make exceptions in cases where delivering the baby is somehow more damaging to the mother’s health than having an abortion, but I would think that so late in the pregnancy, there wouldn’t be a significant difference between the two.

    FCH,

    If you’d only limit abortion after the point of fetal viability, I don’t think you can qualify as “pro-life” because at that point you’re no longer mandating that women continue carrying an unwanted pregnancy. At that point, a woman can opt to deliver the baby instead of continuing to full term. I’ve certainly never encountered a person who labeled herself as “pro-life” who didn’t want to limit abortion well before viability (which is a developmental point beyond Amp’s line for the cerebral cortex; the brain usually is sufficiently developed for life outside the uterus before the lungs are).

  27. 25
    Dianne says:

    I don’t think we ever should force a woman to continue a pregnancy, but I would be OK with laws that required women to choose, at the point of probable viability, between delivering the baby right then and going full term.

    Then would you also be ok with a law that said that after a certain point you can no longer back out of making a blood or organ donation? If so, at what point? If not, why are the two different? (Just to make clear, these are NOT gotcha questions. I really don’t have good answer to them and want to see if a consistent argument can be made about why pregnancy is different and there is a special obligation to continue it not implied in other situations.)

  28. 26
    PG says:

    Dianne,

    Since I just said that there is no special obligation to continue a pregnancy, only to terminate it in a way that does not kill the viable fetus (so long as that method poses no significantly greater risk to the mother’s health than so late an abortion would), I don’t think I understand your question. If my disconnecting from the blood or organ donation would kill the other person RIGHT THEN — not from lack of my donation, but because of how I terminated the process — then I don’t think I should be allowed to do that. For example, if I want to end the organ donation process after they’ve already opened each of us up while we’re lying in the same operating room, I don’t think I have a right to jump up and do anything that would have the known side effect of introducing an infectious agent into the room and killing the would-be organ recipient.

    That’s how I view having an abortion rather than a delivery at the point of fetal viability (again, so long as the delivery is not significantly higher-risk to the mother than the abortion would be). At that point, it begins to edge into the territory of having an abortion not to end the pregnancy, but to kill the fetus. And I absolutely do not believe in a right to kill the fetus. I consider the right to abortion to be a right of physical autonomy — the right to be free of pregnancy — not to be a right of genetic autonomy (to be free of descendants).

  29. 27
    Robert says:

    I read that McArdle piece. I don’t think she was arguing that personhood was a major argument historically other than implicitly (which seems obvious; depersonalization is the go-to tactic for everyone who oppresses someone else); I think she’s indicating that the personhood argument is powerful, and applying it to the slavery question to show how powerful it is.

  30. 28
    Dianne says:

    PG: Apologies. Poor reading on my part. Allowing early delivery (when technically practical) does leave some moral quandries, but does solve the problem of bodily autonomy versus the rights of the fetus.

    As an aside, I would consider it unethical to demand early delivery for no good reason. I would also consider it unethical to not follow through with a promise to donate hematopoietic stem cells to someone in need. However, that doesn’t mean either should be illegal.

  31. 29
    PG says:

    Robert,

    But McArdle doesn’t even seem to understand what the law was during the antebellum period. She makes claims like “now we know Africans are people.” Uh, white Americans knew that Africans could be people; it was slaves who lacked the legal status of personhood. Heck, Africans could own slaves themselves, and the Africans’ rights of property, contract, inheritance, etc. were all respected in the law. Dred Scott (1857) was not just a shitty decision on a moral basis; it completely lacks any originalist or other basis for asserting that people of a particular race cannot be U.S. citizens, and had a scathing dissent with regard to that absurd conclusion.

    McArdle also doesn’t seem to understand what the law in Western nations was prior to the 1960s, for that matter. She says, “Then in the late 1960s, for the first time I can think of, western civilization started to contract the group “persons” in order to exclude fetuses.” Whaa? When had Western nations EVER treated fetuses as legal persons? When were fetuses even able to inherit property? (Something minors and women generally could do.) She provides no basis for this ridiculous assertion; she just takes it as given.

    Honestly, she doesn’t know enough to have this discussion without making a fool of herself. I don’t mean she needs to go to law school, but she does need to have the in-depth understanding of the history of fetuses’ and abortion’s status in the law that most people who are seriously engaged in the abortion debate (whether they are pro-life or pro-choice, laymen or lawyers) end up picking up. Helicoptering into this debate and throwing around unsupported and false claims about legal history in an attempt to make a point doesn’t work.

  32. 30
    Phlinn says:

    There is an important distinction between ending a pregnancy, and not going through with an organ donation to end a terminal illness. In the first, it requires an intervention to end the pregnancy. Inaction would allow the pregnancy to continue to term. With the second scenario, the situation is reversed. It often seems to me that some people see no distinction between ‘choosing not to help’ and ‘causing harm’, but that distinction is necessary to reconcile banning abortion with not mandating blood donations.

    I may harp on that particular distinction more than is warranted, but it is a major part of why libertarian is a better political label for me than any other that I’ve found.

    All that said, I also support early delivery as an alternative to late term abortion.

  33. 31
    PG says:

    Phlinn,

    I don’t think something I do to my own body can be deemed an “intervention,” but then I suspect you believe more sincerely in the concept of what is “natural” than I do. And of course people have obligations for some interventions and not others; I am legally obliged to intervene to ensure a person in my custody doesn’t die for lack of necessities like food, shelter and basic medical care, but I am not at all legally obliged to intervene to provide blood, marrow or organs.

  34. 32
    Kyra says:

    I think the way personhood is relevant to the issue of abortion in a way comparable with its relevance to the issue of slavery, is not whether the fetus is a person, but whether the woman is a person.

    Pro-lifers compare the act of a woman terminating a pregnancy to that of a slaveholder either owning or killing slaves (I’m not sure which), and then present the logical theorem of “slavery is immoral because its victims are people; fetuses are people too, so abortion is immoral because its victims are people.”

    But the situation is different: a person who is a slave is burdened by forced association with his/her master, and it would be in his/her best interests to be freed of all obligation to, and generally, contact with, that other person. The nature of the relationship is an insult to the slave’s personhood, a rejection of it.

    With a fetus, on the other hand, it is the opposite: the relationship is necessary and valuable to them, and it would be in their worst interests to lose that contact with the other person, and there is no obligation on their part; there is nothing they do or can be forced to do, except leave early. The obligation, therefore, is almost entirely on the pregnant woman’s side, and for a pregnant woman who wants an abortion, it is in her best interests to be freed of both obligation and contact. Thus it is the woman, not the fetus, who is analogous to the slave in this metaphor.

    The salient question, therefore, is: in a country where slavery is illegal, is it justifiable for someone held in slavery to kill his/her master to escape it, when the situation has been made so that killing the master is the only possible way a slave can escape? Or, rather, is it justafiable for such a slave to escape while his/her master’s life depends on them remaining?

    This isn’t quite a perfect analogy, since slavekeepers have agency and choose to keep slaves, whereas fetuses don’t. So let’s ask another question. Suppose the law let slaves do that, or it was common practice for slaves to do that. Suppose there was a coalition of people, neither slaveholders nor slaves, who coordinated the trading of slaves. Suppose they made a habit of supressing any information about the (considerable) risks to a slaveholder of being killed by a slave who wants freedom, and pushed people to buy slaves who they knew were likely to kill them to escape. Would such people be considered a danger or a menace to the people they persuaded to purchase slaves? If they proclaimed themselves the supporters of slavekeepers’ safety, would they be lying?

    Somehow, much in the abortion debate for me always circles back to “why don’t pro-lifers support contraception? Why do they conspire for more “babies” to be placed in situations where they’re in danger of abortion?”

  35. 33
    Dianne says:

    There is an important distinction between ending a pregnancy, and not going through with an organ donation to end a terminal illness.

    You don’t transplant for terminal illnesses only for curable ones. No point in putting someone through a transplant if they aren’t going to get a good amount of time out of it.

    In the first, it requires an intervention to end the pregnancy. Inaction would allow the pregnancy to continue to term. With the second scenario, the situation is reversed.

    Not really. Refusing to donate an organ (using the term loosely to include marrow and blood), i.e. refusing to register or walk into a blood bank, is more like using birth control or not having sex. Not starting the process.

    But suppose you have started the process. Remember the scenario I gave above? A person registers with the bone marrow registry and is the unique match for a person with a disease curable only through transplant. (But that IS potentially curable through transplant…as in the person will likely go on to die of something else many years later if they have the transplant.)

    The potential donor is found to be healthy. He or she undergoes stem cell stimulation with neupogen*. The donor is then connected to a leukopheresis machine. Basically, this means that they have two large IVs in their arms, one of which is removing blood from the body and feeding it into the machine which removes a portion of the white blood cells and returns the blood to the donor via the other IV. Critically, this is NOT done under anesthesia (it’s not painful.) The donor is awake during the several hour process. Suppose he or she decides half way through the process–before an adequate number of cells have been collected–that he or she does not want to donate. Not for any particular reason: s/he is feeling fine. Maybe s/he just remembered that s/he has an appointment with the hairdresser just now.

    Active intervention is required to stop the donation–the machine must be turned off and the lines pulled. Should this be done or should he or she be held to his/her word and forced to continue the donation? Remember, the potential recipient–a person of unquestionable “personhood”, definite self-awareness and conscious thought, will die without the cells and will likely live if s/he gets them. Should s/he be legally forced to continue?

    *No reimbursement was received for the product placement…

  36. 34
    Sailorman says:

    Going in a bit of a circle:
    We treat adults as free to contract, and frankly I do not see why we should exclude bodily autonomy from this freedom to contract.*

    If we imagine that adults could contract for their own bodies, then provided that we made BC and early abortion both legally and functionally available to anyone who wanted them it might not seem unreasonable to treat the continued presence of a fetus after some viability date as an implied contract. Not for term birth, necessarily, but if there was some not-unreasonable method of providing for the survival of the fetus while freeing the mother from continued pregnancy, then one could suggest that the option to freely abort for non medical reasons (as opposed to delivering the child through c section or naturally) would not be available.

    But then what? Who gets the child? Who wants the child? Who carries the costs of the fact that generally speaking early term babies are less healthy? Who bears the risk and costs of said “not unreasonable” C section? Who judges whether people had sufficient BC and early abortion options? What’s the appeal method for mothers who feel they’re treated unfairly?

    The costs are huge. The confusion is high. The potential for harming the mothers is great. And it would be to prevent what, exactly? The late term abortions of healthy feti post-viability which are made for nonmedical reasons? How many of those are there every year, anyway–10? 2? 65? As far as anyone has suggested this hardly ever happens at all; from a governmental perspective we’d probably be better off spending our money to protect against random deaths from large hail.

    Fact is, the government doesn’t really have much motivation to get into this field. They should stay out of it.

    So I want mothers to have the unrestricted right to abort up to the moment of birth. Not because I like the thought (it squicks me out) but because it’s really just a thought, in most cases. I would rather prioritize real world problems of comparatively high frequency, than essentially theoretical issues.

    The person who has better motivation (and who incidentally also has a much better moral claim than does the government) is the father of the child. And though it may not be a good idea to bring this up here, I would suggest that if anyone has the moral claim to protect a theoretically viable fetus it would be the father.

    *”Bodily autonomy” is not a magic word which wins an argument. We do shit to people all the time which vastly exceeds the personal and societal cost of a variety of things we could do to their body. It has always seemed very odd to me that people can bankrupt each other, put each other in jail, put each other out on the street; disown each other, withhold money for medical care, fail to educate; and generally do things to each other which frankly matter a lot more long and short term than whether bodily autonomy is violated.

  37. 35
    Charles S says:

    Dianne,

    People should have the right to refuse medical treatment, including the right to end a medical procedure mid-way through (as quickly as can be done safely for the patient). I would count donating blood through an IV as a medical treatment, and I should be able to change my mind and end the procedure as quickly as safely possible.

    I don’t think I should be allowed to retract the donation as such. If I end the blood drawing half way through, but the half quantity is sufficient to be used as a donation, I should not be able to claim that quantity as mine.

    Yes, conceivably, someone will die as a result of allowing people to end medical procedures that are being done for a good cause, but far more harm results (less harm to many more people) if doctors are allowed to decide that they don’t have to stop a medical procedure at the request of a competent patient if it is for a good cause.

  38. 36
    Dianne says:

    Charles: I quite agree. But why does the same logic not apply to ending pregnancies prematurely?

    You do, BTW, have some limited rights over your body parts even after they leave your body. For example, genetic testing can not be done on a sample (blood or tissue) without the explicit permission of the person from whom it came. However, you can’t demand your hematopoietic stem cells back after they’ve been collected.

  39. 37
    Sailorman says:

    Charles S Writes:
    July 3rd, 2009 at 1:10 pm
    People should have the right to refuse medical treatment, including the right to end a medical procedure mid-way through (as quickly as can be done safely for the patient). I would count donating blood through an IV as a medical treatment, and I should be able to change my mind and end the procedure as quickly as safely possible.

    Yes, conceivably, someone will die as a result of allowing people to end medical procedures that are being done for a good cause, but far more harm results (less harm to many more people) if doctors are allowed to decide that they don’t have to stop a medical procedure at the request of a competent patient if it is for a good cause.

    Should that right be inviolate? Would you put that over their ability to contract for themselves?

    Say that the patient agrees “I may not stop the blood draw once it is started, unless the conditions of the blood draw have substantially changed.”

    Do you still think that they should be able to stop if, in the middle of it all, they simply change their minds?

    Now, with a blood draw it is theoretical, as no hospital is going to handcuff patients to a chair. (this is the problem with analogies.)

  40. 38
    Dianne says:

    Now, with a blood draw it is theoretical, as no hospital is going to handcuff patients to a chair. (this is the problem with analogies.)

    Actually, it’s not entirely theoretical, at least in medicine in general. For example, suppose you are undergoing surgery under local or epidural anesthesia. You can demand that the surgery stop, but you can’t demand the right to walk out with your intestines (or whatever) flapping in the breeze: you have to let the surgeons sew you up. And if you try to stand up before the wound is closed, the surgeons will yell at you and possibly physically lean on you until you stop trying it. So, yes, there are some situations in which you do not have bodily autonomy-like when you’re doing something suicidal. Not sure if this advances either argument.

  41. 39
    Charles S says:

    Sailorman,

    Don’t pretty much all contracts have conditions which apply if you choose to abrogate the contact? Also, if I am following your suggestion, you are suggesting that failure to terminate a pregnancy (given a world in which first and second trimester abortions and birth control were both readily and freely available) would be implied agreement to a contract to complete the pregnancy. While that is an interesting framing, that still doesn’t make the contract voluntary. You can’t declare that someone else taking a particular action means that they have agreed to your contract and then claim that they have voluntarily agreed to your contract.

    Dianne,

    So we are in agreement that women should have the right to abort as long as they are pregnant?

  42. 40
    Phlinn says:

    PG, I don’t place any particular value on ‘natural’. Natural is often bad. The natural state of human beings is extreme poverty with daily survival being a constant struggle. Voluntary cooperation is a wonderful thing. The key distinction that you missed is that if a fetus is a person, aborting it isn’t just something you do to your own body. It requires a third party to act to change the situation for an abortion to happen. Any act by a third party which changes the status quo is an intervention by defintion, and abortion qualifies on those grounds.

    Sailorman, You incorrectly listed “…fail to educate…” among a list of things people do to each other. This is exactly the sort of dinstinction I was talking about. If my failure to help someone leaves them in the exact same situation they would be in if I didn’t exist, then I’m not doing anything to them by not helping them. If I’m not causing them harm, then there is no justification to cause me harm. What is justified is failure to help me in return, by not providing me with an education, or medical care, or not selling me food, etc. This is almost certainly a difference in principle between you and I, and sometimes the only outcome of discussion is determining where those basic disagreements lie.

  43. 41
    PG says:

    “The key distinction that you missed is that if a fetus is a person, aborting it isn’t just something you do to your own body. It requires a third party to act to change the situation for an abortion to happen. Any act by a third party which changes the status quo is an intervention by defintion, and abortion qualifies on those grounds.”

    I assume I am the first party and the fetus is the second party, so what third party do you have in mind as “changing the situation” if I have an abortion without a physician’s assistance (e.g. use RU-486; or if you believe that personhood commences upon the union of ovum and sperm, use the “morning-after” pill)?

  44. 42
    Phlinn says:

    Well, I was thinking of late term abortion, at which point I was under the impression that RU-486 wouldn’t be an option (I could be mistaken about that), so the third party would be the doctor. I intended to focus more on the change to status quo… but I’d have to agree that if exactly one individual is involved then “intervention” is the wrong word. I really should have limited it to “abortions requiring a doctor’s assistance” when I first mentioned intervention.

    If it clarifies, I don’t think a fetus can be considered a person until it could probably live outside the womb without heroic efforts to keep it alive (yay, another hard to define phrase!). You can safely stop worrying that I would object to the morning after pill, or any other form of embryonic abortion. You can safely assume I would support loose legal restrictions (not unlimited bans) on abortions at say 7 months and later. I would treat most women as having made their choice when they chose to have sex in the first place, but if they want to change their minds later, that’s fine too.

  45. 43
    Jason L. says:

    A misinformed Megan McArdle post? How shocking. Ampersand, do the world a favor and just ignore her.

  46. 44
    Dianne says:

    Phinn: Not going to address #35 then?

  47. 45
    PG says:

    If it clarifies, I don’t think a fetus can be considered a person until it could probably live outside the womb without heroic efforts to keep it alive (yay, another hard to define phrase!).

    So we’re agreed. See my comments from #20 onward.

  48. 46
    Phlinn says:

    Yes, more or less. I have a bad habit of seeing an argument I disagree with, presenting the issues I see with it, without explicitly acknowledging that I agree with the persons conclusions. Specifically, I thought your postion in #26 was more or less mine, but thought you issues with my framing in #33 was flawed. It was also a perfect example of why a pro-lifer would want to bring personhood into the argument, since your framing depended on not treating them

    Sorry Dianne. I concede that ‘deadly but cureable’ would be more accurate than ‘terminal’. I hadn’t meant to avoid it, but I’m still mulling over the second point. You have hit on a point where it’s harder to distinguish between not helping and actively causing harm. Here’s my first stab at it though.

    Your hypothetical situation in #35 is interesting, although slightly different from #25. You have stipulated the following, if I understood it correctly. No other possible source of a cure exists because it’s a unique match, the process has started but not finished, no significant risk of harm to the donor exists. In such a case, I think it would be moral and ethical to choose not to intervene to stop the process early, but unethical to intervene to prevent the donor from doing so himself if that is possible. Unless having started the process has left the recipient in a state that is worse than they would have been had they never started the process at all, the recipient has no enforceable rights against the donor. OTOH, if the recipient stopped looking, or had begun the surgery and will die immediately instead of a few months from now, or had to stop taking some drug to alleviate symptons, then I might actually say that no, the donor can’t stop on a whim. I’m assuming there is no written contract involved specifying consequences for withdrawal of consent, since if there were the analogy would be useless.

    Does this make sense, or help? Anyone feel I’m threadjacking? We’ve wandered pretty far from the original post.

  49. 47
    PG says:

    Phlinn,

    But if what is at issue is fetal personhood, whether something is an “intervention” by a third-party, or whether the woman had sex consensually, is irrelevant. Personhood isn’t reliant on those factors.

  50. 48
    Phlinn says:

    Hmm… I was under moderation and couldn’t edit, and now can’t edit post 48 after approval. I would have continued with “as a person” in the first paragraph before. If edits aren’t allowed while awaiting moderation, is it possible to get a preview button?

    If we are solely discussing personhood, then those factors are indeed irrelevant. But as I indicated way up thread, personhood and freedom of choice are both factors in the rightness or wrongess of abortion. I then, to deal with Dianne’s analogy, had to explain how someone could support compulsory completion of a pregnancy but still object to compulsory blood donation. That was the sole point of bringing up intervention (you can ignore the third party portion of that). It’s a way to separate the two situations, although borderline cases certainly exist, and it’s part of why I treat them differently.

  51. 49
    Sailorman says:

    Charles S Writes:
    July 3rd, 2009 at 5:14 pm

    Sailorman,
    … Also, if I am following your suggestion, you are suggesting that failure to terminate a pregnancy (given a world in which first and second trimester abortions and birth control were both readily and freely available) would be implied agreement to a contract to complete the pregnancy.

    Would be? No, I’m an “abort at any time” kind of guy.
    Could be is more accurate, and even so it’s mostly because there don’t appear to be any prolifers hanging out at Alas and this has become a mostly theoretical discussion where it seems appropriate to discuss various issues including this one.

    While that is an interesting framing, that still doesn’t make the contract voluntary. You can’t declare that someone else taking a particular action means that they have agreed to your contract and then claim that they have voluntarily agreed to your contract.

    Sure you can. Actions are a perfectly valid method of forming a contract.* In a world like ours, where pregnancy is a predictable result of having a lot of sex if you are fertile, and where the law does not provide (as it should) for unlimited abortions, then arguably someone who becomes pregnant through voluntary actions has consented to be bound by the law: i.e., to carry the child to term if she does not abort early in the pregnancy.

    There are a lot of issues which can kill voluntary status, including duress. So I’m intentionally framing my hypothetical to try to set up a situation where duress doesn’t exist. It’s a hypothetical world of freely available BC, freely available abortion, and no social stigma resulting from any pregnancy related decision.

    *The trick is to give valid choices to avoid being bound by contract, i.e. to avoid duress.

  52. 50
    Sailorman says:

    The real question here seems to be whether people can agree in advance to be bound permanently by a contract.

    In other words, to use the organ donor example: Say that the recipient says “well, I want your organ. But I don’t want to worry. Either don’t donate and I’ll find someone else, or sign here. If you sign, though, you can’t back out unless you’re dead.”

    The patriarchal view says that adults should not have the freedom to enter into that sort of contract.

    The free contract view says that you should be able to make a choice to permanently commit yourself to something, so long as you are mentally sane, etc.

  53. 51
    PG says:

    Sailorman,

    I think you mean the paternalistic view.