Yesterday, I posted a rather doom-and-gloom post, arguing that if they get the chance, Republicans will not be content merely to allow the abortion decision to return to the states. Instead, as the nationwide “partial birth” abortion ban suggests, they will seek to chip away at abortion rights on the national level, stripping away the availability of abortion even in firmly “pro-choice” states like New York.
Nor do I expect Roe to be overturned, because they don’t need to overturn it. Especially if the Supreme Court decides that “the Salerno standard” should be used for abortion law, Roe could be turned into an empty, powerless decision without actually overturning it.
However, I should have also pointed out that even when Alito is confirmed, his anti-abortion views won’t dominate the Court. With Alito on the Court, the person replacing O’Connor as the swing vote will be Justice Kennedy. And although I think Kennedy is worse than O’Connor on abortion (most notably, he voted in favor of vague “partial birth” abortion bans), it doesn’t seem likely that Kennedy – who voted with O’Connor on the Casey decision – would want to eviscerate Roe.
So while it’s not impossible that my doomsday scenario will come about, I don’t expect it to come about just because Alito is confirmed. (But if Bush gets to replace a second pro-choice vote in the Court, and if Republicans keep control of Congress…)
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I’m so glad I can be included in this one. Yea!
OK, here is what I wanted to say in the doom and gloom post.
I actually think there is a far worse scenario for the pro-choice movement, (albiet more in line with Amanda’s blog post that you alluded to). But it involves not only striking down Roe but affirming the original argument in the Texas statute and making abortion really illegal except in cases of the mother’s life being endangered (rather than state-by-state restricted). And, I suspect that the Alito court (and even the O’Connor court) is sufficient to do it. Here goes.
Roe sidestepped the issue of personhood of the pre-natal life. But, buried in the opinion is the concession that if the pre-natal life is a person, it is entitled to 14th amendment protection. I believe the day is coming soon where the court can no longer bury it’s head in the sand about personhood and the reason is fetal protection laws. Sen. Kerry saw the writing on the wall when he said:
Clearly, a clash is coming and there is real potential that Roe could be vacated because the “personhood” issue is no longer in flux. It would not take an activist right wing court to do this because there is no reason to say Roe was decided wrong. It only requires one to deduce that the Roe court didn’t have enough factual information to decide otherwise. It was easy for Justice Blackmun to elicit from the defense at the time that…
“…the appellee conceded on reargument that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment. ”
…because it was true. Not anymore and the court might not be able to do a thing about it. That change in the legal landscape undermines the whole reasoning in Roe and shifts the whole emphasis of protection to the pre-natal life.
So, what does that mean for states. Well, abortion would become a homicide. Any allowance of abortion would therefore have to be outlined as a “justifiable homicide” in a state’s homicide laws.
Typically, homicide is justified in only 1 of 3 scenarios: police actions, self defense, incapacity of the killer to understand their crime (actually that might not affect the criminal aspect but only the punishment aspect). Although it is possible that a state could write a specific provision with abortion as a specific class of homicide, I think there are real equal protection issues with doing that. In the end, states may only be able to justify self-defense classed abortions (which is what Texas was trying to do in the first place).
So, I think the situation is even gloomier than either Amp or Amanda predict if you are a pro-choice person. I, of course, am not, so all the scenarios are just fine by me.
Hmm. Gengwall thinks it’s A-OK to bring women who have miscarriages into the criminal justice system, because they might have self-induced an abortion, might have smoked cigarettes during their reproductive lifetime, might have indulged in sex despite a known propensity to miscarry (and a known propensity to participate, even if unwillingly, in the death of a 14th amendment “person” ie negligent homicide). Because that’s what we are talking about. Communist Romania, pregnancy police on every block, mandatory pregnancy tests and state issued menstrual supplies.
gengwall:
One thing that an overturning Court will have to deal with is the 9th Amendment as stated in Roe to wit: That a woman has, by virtue of being a citizen, has control over her own body. That is the core of the issue.
I think that all a “fetal personhood” argument could legitimately do to abortion is require that the fetus/embryo not be killed in the process of the abortion, i.e. removed alive and kept in humane conditions until it dies. We have precedent in the form of organ and tissue donation rules that says a person cannot be forced to donate, even if the person who needs the donated tissue would die without it. That means that a) need does not equal entitlement, and b) denying someone what they’re not entitled to is not murder. A woman has the right to disconnect herself from a fetus or embryo, just as any person has the right to refuse to donate organs or tissues to another person, even if not getting those tissues is fatal to the other person. Pre-viability, however, a standard abortion would be (and is) effectively euthanesia to something which would quickly die anyway.
To put it bluntly, the fourteenth amendment, so interpreted, could prohibit the killing of an embryo or fetus. It cannot, however, prevent its removal from a woman who doesn’t want it inside her.
Fetal protection laws could be compatable with abortion rights simply by following the above precedent: they apply to the death of a fetus caused by someone with no legal say in the matter and against the mother’s wishes. Also, wanted pregnancies are often greatly valued by the family the baby would be born into—it is acceptable and right to have a law which acknowledges and protects this, and that can be done without limiting women’s autonomy by making it based on the specific woman’s feelings toward her pregnancy and fetus. It stands to reason that a woman who is attacked and miscarries will consider more harm done if she wanted the pregnancy and the baby, than she would if she were on her way to the abortion clinic. Other family members who felt emotionally attatched to the fetus also have a legitimate complaint against an attacker for causing a miscarriage, but not against a woman for having an abortion, because her bodily autonomy has ultimate veto power.
Seems to me that gengwall has it right in the sense that he or she has nailed the underlying ideological battleground: the personhood of the fetus. As well, I think Kyra underestimates the significance of call the fetus a person when she compares a fetus to any other organ inside a woman’s body, because if the fetus is a person then it is, by definition, not an organ. More to the point, if the fetus is a person, then the woman carrying that fetus can be understood to bear towards that fetus all the obligations of a parent towards a child, which would make the scenario Kyra lays out one that is difficult to justify at best.
It has always struck me that I haven’t heard a pro-choice argument that takes on the issue of the fetus’ personhood “face-to-face,” so to speak–though I am perfectly willing to admit that this is a matter of my own ignorance–because the fact is that if you believe it is permissible for a woman to kill a fetus simply because she wants to (and if you are pro-choice that is what you believe; and I suppose I should be clear here and state that I am pro-choice), and you also believe that this killing is not murder, then there is no way that you can believe that the fetus is a person. The only way a woman’s desires can always trump the fact of the fetus that is growing in her is if that fetus is not, and cannot be construed as, a person, and it seems to me that the only way to respond to the Christian assertion of the fetus’ personhood–and it is, at least in the context of the US debate over abortion, a Christian assertion, whether the assertee is Christian or not–is to assert, vigorously and without apology, the fetus’ nonpersonhood.
Now, I am not arguing that the fetus is no different from a woman’s spleen or kidney. Clearly it is different. And there is a religious tradition that argues quite forcefully for the nonpersonhood of the fetus without denying that difference. In Jewish law, abortion is not murder. More to the point, the reason abortion is not murder is that a fetus is not considered a fully individuated human being until it begins to emerge from its mother’s body. Up until that point, the mother’s life and needs always takes precedence over the life and needs of the fetus. And I stress that we are not talking here simply about life threatening medical problems. There have been cases in which a rabbi has ruled that an abortion is permissable because a woman could not afford to have any more children, or because of the mental anguish her pregnancy was causing her. (I am not suggesting that Jewish law on abortion is at all feminist, though it might be called proto-feminist; especially in the orthodox community, the rabbis, men, still maintain control over the interpretation of the laws I am talking about here.) At the same time, however, one is allowed to violate the laws of the Sabbath–which in the Torah is punishable by death–in order to keep a fetus from dying, even if its death would not mean the death of the woman carrying it. Two books that are worth reading on this subject: Women & Jewish Law, by Rachel Biale and Marital Relations, Birth Control and Abortion in Jewish Law, by David M. Feldman, both published by Schocken Books.
The argument of the anti-abortion movement is fundamentally a Christian one, even when it is put forth in secular terms. I wonder what would happen if, as part of a larger rhetorical strategy, the idea that there is a competing religious tradition, one that is at least as venerable and worthy of respect as Christianity, that sees the issue of abortion very differently.
Amp wrote:
…mainstream feminists will finally realize that abortion rights should do to the Democratic Party what abolition did to the Whigs ? They will finally realize that if you stroll amongst power-brokers with a great big “Welcome” tattooed across your ever-smiling, ever-undemanding mug, power-brokers will continue to wipe their feet on you ?
But I kid the mainstream feminists… :/
Magis – I suggest you read Roe more closely.
We now have a federal law that explicitly states that the fetus is a person as defined by the 14th amendment at every stage of pre-natal development fulfilling this requirement in the opinion. Be afraid, be very afraid.
Richard – one quibble. Although it is true that the personhood argument is carried by the Christian right and you also have pointed out that the court found, at best, significant ambiguity in culture and religion regarding this personhood, I believe it won’t matter. The biological evidence that the court ignored is objective and clear – based on biological definition the pre-natal life is indeed a person. I could outline this in detail but it would be off topic (as if I’m not off topic already). My point is that the Christian right is not necessary to prove this point and this proof will undercut Roe at it’s core. And, as I said before, I don’t believe the court will be able to ignore it regardless of who is on it.
gengwall,
The biological evidence that the court ignored is objective and clear – based on biological definition the pre-natal life is indeed a person.
You must alert ACOG, AMA, etc. immediately and impart your objective and clear biological evidence. And while you’re at it, perhaps you could also define “life” and “personhood”.
I would be more than happy to but this is not the proper thread to do so. For an extended thread on this topic, you can look here at the biology-online.org forum where we discussed it at length. It is important to note that the overwhelming opinion of the mostly secular pro-choice biology students and professionals there was that life does indeed begin at conception. There was no rebuttal of the biological facts there, just the same old tired justifications why abortion should be legal anyway.
Of course, that is a biology forum, not a legal one. Even though we got into it some the legality of abortion was not the proper topic there.
And finally, it doesn’t matter if I say it, the Unborn Victims of Violence Act says it. Blackmun’s missing piece is found and his profetic word’s will come true: “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”
Richard managed to completely miss the point of what Kyra was saying, in ways that I think were inadvertently VERY revealing. Anyway. She didn’t make the argument that a fetus was the same thing as an organ. She made the argument that a woman cannot be forced to donate her blood, her body, the calcium from her bones, her HEALTH, to a fetus, whether it’s a person or not. No person has the right to live off another person’s body. Because the right to bodily autonomy is the most important right there is– it’s the foundation of every other human right. It’s weird, I think, that you missed this point, which seemed very clear and explicit to me, and does address the issue of fetal personhood directly.
gengwall,
Thank you for the link; I’ll go take a look. Re the UVVA act, I should’ve made it clear that I was addressing the issue/asking for definitions from an absolute biological perspective. Legal/political pronouncements are irrelevant in the face of medical reality.
Richard, you’re misinterpreting my analogy. I was not comparing the fetus with an organ to be donated, I was comparing it with the recipient of donated tissue. I.e, I’m applying personhood and the attatched rights thereof to its situation, and seeing what results. My conclusion is that pro-lifers include under the banner of “right to life” something more than any born person’s right to life includes, and something that no born person is ever entitled to: the right to the use of another person’s body as a means of medical help or life support.
The point of abortion, the reason people get abortions, is not the killing of a fetus. This has managed to be the center of attention because it’s what the pro-lifers take issue with and what the anti-choicers have latched onto as a convenient excuse for attacking women’s autonomy. But the entire point of abortion is to get the fetus or embryo out of the woman’s body, and detatched from her, so that she is free from supporting it and carrying it around everywhere she goes.
The difference between abortion and murder is the difference between abortion and infanticide—after a baby is born, it makes no demands on a woman’s body that would be fatal if they were not met. The woman no longer has a pregnancy that she doesn’t want, and the baby, unlike the pregnancy, can be passed off to someone else to care for (adoption, hiring a nanny, whatever) if she doesn’t want it. Abortion exists because there’s no other way for a pregnant woman to cease having a pregnancy to deal with the way a birth mother can cease having a baby to deal with.
An early-term fetus needs a uterus and blood supply (and all the things that contribute to that blood supply, i.e. lungs, stomach, kidneys) to live, much as a cancer patient may need blood transfusions, bone marrow transplants, perhaps a new kidney, to live. The cancer patient, whose personhood is established, is not entitled to anyone’s blood, bone marrow, kidneys, or anything else without consent from the person who has them. No one can be forced to donate them, not even the mother of the person who needs them. And if the patient dies, the cause of death is their cancer, not murder by the person who did not donate.
Now, in abortion, generally, the fetus is killed. However, if it were removed alive, it would not survive—it would die for lack of the various things the woman donates during pregnancy. Thus removing it alive is pointless from a preserving-life perspective, so it is killed, and this killing, when it would die soon anyway, is basically euthanesia. Now if you consider euthanesia to be murder, that’s your perogative. However, the disconnection of a fetus from a woman’s body is simply her exercising her right to refuse to donate her body any longer. The death of a fetus is caused by its inability to survive in the outside world with any known medical technology, and is no more murder than the death of a cancer patient who is cannot find a willing donor.
By the way, I did say fetal protection laws could be justified by the woman’s emotional attatchment to the fetus (women who are pregnant because they want a child generally have an attatchment to what will become the child they want), and the fact that a person who causes the death of a wanted fetus has essentially forced the woman to have an abortion against her will. This would not be murder, but something different; still, it can be protected by law without assigning personhood.
Gengwall—Right to life does not include right to someone’s body. If the fetus can’t survive once the woman has removed her support, that’s its problem. She can offer her support, but it can’t be demanded or forced. Fetal personhood can establish a fetus’s right to not be killed, but it has no right not to be removed and disconnected from a woman who doesn’t wish to be pregnant. Basically, if a fetus is a person, she can’t have it killed, but she can have it kicked out.
In any case, you wanna prove it? I still think it becomes a person when it is born and draws breath.
gengwall,
OK, I looked but I wasn’t able to find any post offering biological facts that life begins at conception. (It appears there isn’t even a consensus among the participants as to what constitutes life/personhood.) In any case, there was one person (clarence, on page 5 I think) who did try to offer a biological definition (I paraphrase: life is defined based on certain shared characteristics like respiration, metabolism, waste elimination, etc.), but who, unfortunately, displays a lack of familiarity with basic anatomy/physiology when reaching his conclusion. (A fetus does not, and most importantly, cannot breath/eliminate waste/etc. Those are maternal/placental functions.)
Kyra, great post.
Gengwall, “life” and “personhood” are not the same thing. Of course “life,” in the biological sense you’re talking about, begins at conception. But to assume human life is the same as personhood is to assume what’s at issue.
Regarding this passage from Roe:
…The federal law you refer to in no way obliges the Supreme Court to overturn Roe. The “finding” referred to in Roe can be interpreted to refer to a medical and scientific finding – not a law passed by Congress. Otherwise, Congress could have simply passed a law the day after Roe was decided saying “congress has found that a fetus is a person,” and that would have overturned Roe. But of course Congress doesn’t have that power, because the Supreme Court is not required to accept Congress’ findings.
To quote Clarence Thomas:
So just because Congress passes a law, doesn’t require The Supreme Court to accept the “findings” of that law when judging cases or precident.
Finally, if you’re worried that a discussion of life and personhood is off-topic for this thread (and it is), you can go ahead and post in this thread instead.
It’s too bad, in Cali we can’t clone Boxer and use her clone to replace Feinstein….I am concerned about his conservative stance on abortion but I loooove his demeanor. Blech.
I just love our senators’ reverance for life, at least as long as it’s in a woman’s uterus. One minute, opposing abortion as the taking of life, the next defending a CIA led missile strike against another sovereign nation that took the life of 18 men, women and children, but apparently, not the intended target. Defending it and then saying they would do it again if given the opportunity. So, as we know, none of this rhetoric is about preserving human life, but exerting control over women’s bodies.
What strikes me as it always does whenever the Senate interviews judicial candidates who can make decisions that impact women, is that whether or not they are Republican or Democrat, those asking the questions are almost always men. Lines of usually White men, asking the questions and few of the people in the media are asking questions about that fact.
Roe’s already been so badly damaged, not by the USSC, but by the actions taken by anti-abortion movements outside the court system. Whether it’s violence, or intimidating landlords not to renew clinic leases, and many other ways. And as far as our political parties, we have one that is content in giving away all our rights at once, the other chooses to give them away piecemeal…while still demanding our loyalty at election time.
The point of abortion, the reason people get abortions, is not the killing of a fetus. This has managed to be the center of attention because it’s what the pro-lifers take issue with and what the anti-choicers have latched onto as a convenient excuse for attacking women’s autonomy.
So are you of the opinion, then, that opposition to the right to have an abortion is all about women’s autonomy and not about destruction of potential human lives? That voicing concern about the latter is simply a “convenient excuse” to restrict the rights of women in general?
Kyra, you make a case that abortion is legitimate because no person has a right to live through the use of another person’s body as a means of medical help or life support. It is a compelling argument. But if someone consents to initiate such a scenario in the first place, do they then have a right to withdraw that consent and allow that person to die?
Someone who engages in sex that can lead to pregnancy knows that there is a risk, even if they use birth control, that pregnancy can result, and that the above situation can result. If they voluntarily accept that risk, and the above situation does ensure, doesn’t their acceptance of that risk mean that they should accept the consequences? It seems to me that there is a level of consent here to initiate the creation of a life that is dependent on their body, and that therefore there is an obligation to carry though on it should it happen.
I look forward to your list of all the other behaviors for which one should accept the consequence if they knew the risks.
Maybe wounded soldiers who genuinely wanted to serve democracy (or even just earn a living) should not be tended to by medics when they are shot and bombed. They knew the risks.
Maybe if I have my pocket picked on my trip to an L.A. beach resort, I should decline reporting it to the cops because I knew the risks.
Maybe my parents should have aborted me and my two siblings. Any one of us could have inherited the congenital disease my father had– though only one of us actually did. For that matter, maybe I should forgo any medical care for this disease and just let it run its course. After all, once I was in my teens, I knew there was a risk that I could develop it. A truly consciencious and deserving person would have tracked down a healthy kidney to replace of her bad ones years ago. Right ? Sure, I have done what I can to be healthy and defer or avoid any problems, but I haven’t literally done EVERYTHING– so in your universe, I can only do the right thing by resigning myself to suffering, expense, disability and death.
Ron, that tack is beyond pathetic and I dearly wish that your camp would just let it go already.
OK – here is the scenario as I see it playing out. Amp, you’re right that the court wouldn’t have to revisit Roe just because some law got passed (I think that’s what you mean). But sooner or later somebody is going to get convicted of a violation of UVVA and not want to go to prison for life. So, they will appeal the conviction, as I see it, on one of two grounds.
1. They will try to claim that Roe decided the personhood issue (which it did not) and that the fetus is not a person and doesn’t have 14th amendment rights. The court will naturally have to explore Roe and they will determine that there is nothing wrong with UVVA. This will set up the paradox that Sen. Kerry alluded to. Emboldened, some red state will pass a law against abortion using the new personhood argument that was settle in the UVVA appeal and Roe will be undone once that state law is appealed and upheld.
2. They will try to claim that UVVA is an equal protection violation because it treats differently two classes of killers who commit the same identical killing. In doing that, either the court will strike down the abortion exemption or they will invalidate UVVA altogether. The first is a best case scenario for anti-abortion people but even the latter only delays the inevitable as again some really red state will pass a fetal protection law that does not have an abortion exception and the courts will have to uphold it.
The beauty of it all is the makeup of the court won’t matter.
So, by now you are saying “that gengwall is nuts!” That’s great. The more you ignore these possibilities the more caught by surprise you will be when they happen. On that day, a depressed Sen. Kerry will get up in front a shocked nation and say “I told you so”.
One of my favorite mystery writers, Jane Haddam, posts to rec.arts.mystery, and has her own website at http://www.janehaddam.com.
On r.a.m she has repeatedly said that abortion is a right because a man cannot be forced to give his living child one of his kidneys, both healthy, to save her life. The kid was eight years old and dying.
I can’t find her citing the case she got this from though I could ask her if anyone wants it.
RonF: That voicing concern about the latter is simply a “convenient excuse” to restrict the rights of women in general?
Yes.
Bacca and Kyra: You’re right: I read quickly and carelessly and so misunderstood Kyra’s analogy entirely. Kyra, my apologies. Obviously, this made what I wrote in response to what I thought was her comparison between a fetus and any other organ in a woman’s body beside the point (and also, Bacca, I think I understand what you mean when you say that my post was “inadvertently VERY revealing”). Nonetheless, I still think Kyra’s analogy is problematic, not because I disagree with it in principle; bodily autonomy is the fundamental human right on which all other human rights are based, and no woman who doesn’t want to should ever be compelled to support a fetus’ life with her body. Rather, the problem I have with Kyra’s application of “personhood and the attatched rights thereof to [the fetus’] situation” to see “what results” is one of strategy: her argument does not seem to take into account the fact that, precisely because a fetus is not yet born, precisely because a fetus by definition lacks not just bodily, but physiological autonomy in the way that a born person possesses it, its “situation” once personhood is applied can easily be represented as qualitatively different from the situation of a born person who needs an organ to live and is refused that organ by another born person. All it would take to undermine Kyra’s argument in court, I fear–and given the way the mother-child relationship is sentimentalized in this culture, I fear this would be too easy–is to make the case that a pregnant woman’s physiological/biological support of her fetus should be seen as analogous not to tissue/organ donation, but rather to the sustenance that parents owe children and for the withholding of which parents are liable. This counterargument, I imagine, would go something like this: because a fetus is not individuated, because it is wholly dependent for its life on its connection to its mother’s body, disconnecting it from that body and allowing it to die is not the same thing as a mother’s refusing to donate an organ to her child, whose body, even though it is failing, is not dependent on her body in the same way that a fetus is dependent on its mothers. In other words, this argument would go, it is one thing for one person to refuse to donate an organ to save another person whose body is already failing and is going to die anyway; it is quite another thing, culturally, politically and legally, to disconnect an otherwise healthy person from the source of its life and then allow that body to die, especially if that body is legally endowed with full personhood.
This issue of disconnecting the fetus from the source of its life brings up something else that troubles me strategically about Kyra’s analogy: the way in which antiabortionists romanticize the fetus-as-person’s essential innocence: it did not ask to be conceived; it has no idea what is happening to it; it has never done anything wrong, etc.–and how that innocence is then used to demonize women who choose to have abortions. Here, too, I think there are differences between removing a fetus and refusing to donate an organ that could be exploited by someone arguing against Kyra’s analogy. In the case of a refused organ donation, the person who is refusing has done nothing actively to bring about the death of the person who needs the organ; the potential donor simply has chosen not to act. A woman who aborts a pregnancy, on the other hand, has consciously, knowingly, committed an act that can have no other result for the fetus but death. Perhaps more to the point–again, I am imagining counterarguments to Kyra as a matter of strategy, not trying disprove the premise she is trying to argue–because a pregnant woman has already begun to support the fetus and is, in fact, withdrawing that support, it could be argued that the more appropriate analogy in terms of organ/tissue donation would be to someone who donated an organ and then took it back. Flesh this analogy out with the fact that the person taking organ back is the donor’s own mother and you have a perfect recipe for depicting women who have abortions as cold and heartless inhuman creatures essentially no different, in the eyes of the people making this argument, and perhaps even worse (remember the fetus’ essential innocence), than those mothers who kill children who are already born.
In other words, the problem I see in Kyra’s argument is that it does not take into account how assigning personhood to the fetus can bring into play the mother-child relationship in ways that could ultimately be used to undermine the argument she is trying to make, which is why I think it is important to argue from a pro-choice position against the fully individuated personhood of the fetus–and I should stress that I do not mean we should therefore see the fetus as no different from any other organ in a woman’s body. It seems to me we can see the fetus as a living thing that, because it is not yet individuated, does not yet possess the full rights of personhood. This is why I referred to the Jewish position on abortion: you do whatever is necessary to protect and sustain the fetus’ life, even violating laws that would otherwise carry the death penalty, but the fetus’ life never trumps the mother’s–because a person-to-be who is not yet in the world cannot have the same status as a person who is. It is this difference in status, in Jewish law, that makes the killing of a fetus in the process of aborting it something other than murder, and I have always understood it to be this difference in status–though I realize it was not derived from Jewish law–that makes it possible to argue that a woman’s decision to have an abortion should be a private one in which the state has no business interfering. I’m not talking here about what has been argued in the courts; I’m talking here about what I always understood was the underlying premise of the pro-choice position.
It is certainly true, as Kyra points out, that a pregnant woman who has an abortion is not interested in killing the fetus per se, but in removing it from her body, thus ending her support of it, but I did not write in my original post that killing the fetus was the point of an abortion. What I wrote was that if you think it is permissible for a woman to kill a fetus–and if you believe it is a woman’s right to remove a fetus from her body, you also believe it is permissible to kill the fetus in order to do so or as a result of doing so, or, to put it another way, you believe at the very least that it is permissible to arrange things such that there is no other result than that the fetus will die–if you believe this, then I don’t think you can also believe that the fetus is a person in the same sense that I am as I sit here typing this post. Indeed, I think Kyra’s equation of the killing of a fetus after it is removed from a woman’s body with euthenasia actually highlights the fetus’ second-class status in this regard, and it is another reason why I think that, strategically, her argument is problematic. The question of whether and under what circumstances a person who has not actively chosen euthenasia can be euthenized, and then the question of who has the authority to make that decision for him or her, is an extremely complex one, especially when the person who is sick has not indicated her or his perference about who should have that decision-making capability. However, once we allow that somebody else can make that decision, then we have defined the person who is sick as somehow less fully a person than the one by whom the decision to euthenize will be made. It does not mean the sick person is no better than a vegetable–even if he or she is in a permanently vegetative state–but it does mean his or her personhood no longer exists as it did when he or she was in full command of her or his faculties. The same thing, it seems to me, is true of the feuts in the scenario Kyra lays out. Killing it may in fact be the merciful thing to do, but the fact that it has no say in the matter, that it cannot have a say in the matter by definition, means that it cannot possess personhood in the same sense, say, that the woman does who decided to abort the fetus in the first place. In other words, I don’t think Kyra’s argument works strategically because it can be used to undermine the assumption she says she starts with, i.e., that the fetus is a person. I realize she started with this assumption to see if she could make the argument for fetal personhood work in favor of a pro-choice position, and I do think her argument is a forceful one. But I also think that, ultimately, for the reasons I have outlined here, her argument would do more harm to a pro-choice position than good.
It’s interesting in this context to consider the way in which the Talmud arrives at the position that non-therapeutic abortions are premissibile, because it posits a scenario in which the permissibility of the abortion rests not on the woman’s personal decision, but rather on the state’s interest in protecting and preserving the woman’s quality of life, but since this response has already gone on long enough, I am going to post the rest of what I have to say on my blog, http://itsallconnected.wordpress.com.
alsis39:
Maybe wounded soldiers who genuinely wanted to serve democracy (or even just earn a living) should not be tended to by medics when they are shot and bombed. They knew the risks.
They also knew that part of the deal was that if they were wounded, there were medics, doctors, etc. whose job it was that they would be tended to.
Maybe if I have my pocket picked on my trip to an L.A. beach resort, I should decline reporting it to the cops because I knew the risks.
Not a good analogy. Getting your picket picked when you are walking down the street is an extraordinary situation that is not something that is reasonable to expect; it is not connected to the act of walking down the street in the normal course of events. What we’re talking about is more like handing someone your wallet and then reporting it stolen.
Similarly, women who have sex know that part of the deal is that they live in a free country, in which the government does not force childbirth upon unwilling pregnant women.
And just as refusing to give soldiers medical care can’t be justified by saying “they’ll know that’s the deal when they choose to sign up,” refusing to allow women to control their own medical decisions can’t be justified by saying “they’ll know that’s the deal when they have sex.”
RonF:
They also knew that part of the deal was that if they were wounded, there were medics, doctors, etc. whose job it was that they would be tended to.
Is this not “part of the deal” for women also? Along with the risk that they may become pregnant through engaging in sex, they also know that there are medics and doctors whose job is to tend to the woman, either through the pregnancy to birth or through abortion.
Would you say that a woman should not expect to have medical attention throughout her pregnancy if she decides to continue it? I would assume you would agree that this medical support is both expected and required. Should her decision be to end her pregnancy, the same medical attention should be expected and required.
RonF wrote:
This line of argument always frustrates me because what it’s really about is not abortion per se, but rather the social and cultural meaning of heterosexual intercourse. The fact that pregnancy is a possible consequence of reproduction does not mean that a woman who becomes pregnant has consented to that pregnancy and must therefore accept that consequence as irrevocable. The assumption that she must, it seems to me, has a lot more to do with patriarchal ideas about intercourse as the way in which a man “possesses” a woman, as a form of colonization, than with the ostensibly inviolate sanctity of the life that has begun to grow inside her womb. Indeed, if it were really the sanctity of that life that was at stake and not the patriarchal, male dominant fear of women in control of their own sexuality, then there would be no need to invoke this kind of patriarchal moralizing about heterosexual intercourse to begin with. One could simply assert that the fetus is a person and that to abort it is therefore murder without passing judgment on the act of intercourse that led to the fetus’ conception. The fact that the antiabortion movement does not separate its opposition to abortion from the view of intercourse that RonF invokes only goes to show how much the opposition to abortion really is, in RonF’s own words, “simply a ‘convenient excuse’ to restrict the rights of women in general.”
The bottom line is if the court recognizes the personhood of the pre-natal life, they will have to afford it 14th amendment rights. All of these arguments will then fall under “justifiable homicide”. I think most courts will have a hard time with the justification when held up against the 14th amendment right to life of the fetus. At the very least, such justification would be quite novel and extraordinary.
I still see a lot of equal protection issues being brought up. How many other people who kill people because of the extreme burden placed on them will claim they should be exempt from criminal conviction.
Look at the Menendez brothers. Let’s assume for the sake of argument that everything they claimed about their parents was true. One could argue that the burden their parents placed on them over the years far exceeds any burden on any woman to carry a baby for 9 months. Couldn’t they claim an “excessive burden” defense? Specifically, since Eric alleged that his body was used against his will over many years by a sexually abusive father, couldn’t he claim a similar defense to a pregnant mother? He even claimed that there was no way for him to extricate himself from the situation and therefore the burden, according to him, was inescapable. Of course, that is the defense the brothers claimed but that defense did not fall under “justifiable homicide” and wouldn’t have even if everything were true. You simply can’t kill someone because they place an enormous physical, financial, or psychological burden on you.
There are quite a few cases of women who killed their kids because of this same kind of excess burden. Remember Andrea Yates, the post-partum depression mom who drowned her 5 kids in the bathtub. She certainly felt an enormous psychological and physical burden, but we all thought her actions were murder and I doubt anyone here would condone them.
At best, one might claim the pregnancy situation is unique in that there is no possible way to relieve yourself from the burden short of killing the fetus (sounds very Menedez like). Even then, I think that is a hard case to make. We are nowhere guaranteed by the Constitution to not have burdens placed on us from which there is no escape. Many claim that the burden of poverty is inescapable. Certainly, there are many physical defects and injuries which impose burdens on us that are inescapable. If you accidentally injure me to the extent that I become a quadriplegic, you have caused an extreme physical burden on me from which I have no escape. That still doesn’t justify me killing you. So, even the unique burdens of pregnancy in the end are not really that unique. And an escape from those burdens is not necessarily guaranteed by the Constitution. At best, it is a weighing of constitutional rights and the right to life of someone always trumps a right to liberty claim.
Absolutely. Name me a country in which if women made the rules abortion would be illegal. Then persuade me that women anywhere have less respect for the sanctity of actual human life than men do.
What Amp and Sharon said, RonF.
In addition, you give more insight than you know when you write:
Take a good look at the assumption you make when examining this –admitedly not real;I have never had my pocket picked in a strange town– situation, vs. the assumption you make when discussing a sexually active hetero female. In the former, you assume with no actual cues from me that I was in fact, taking reasonable precautions in my mythical trip to this mythical beach resort. I was carrying my wallet and making a good-faith effort to watch and hold onto it. Presumably, I was not consciously wandering into a strange/”bad” neighborhood and waving lots of “tempting” designer goods around.
OTOH, your view of a sexually active hetero female makes absolutely no assumption that she may have taken very reasonable precautions and STILL found herself pregnant with an unwanted child. This is a really, really important lack of symmetry, RonF. You might want to think for a spell about what that assumptions says about your own views of women and the rights we are mature and cognizant enough to deserve.
I think you’re right that Roe itself is not immediately threatened. But I do think that replacing Alito with O’Connor–and the further lessining of what teeth the “undue burden” standard has that come with it–is a perhaps a little more important than you do.
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