Rebuttal to "Abortion and Abolition"

Several weeks back, I posted a response to Diana Hsieh’s op-ed, “Abortion and Abolition” over at NoodleFood. I was struck by the title since I had also always thought of abortion and slavery as linked—albeit in the opposite way that Ms. Hsieh conceives. As the post and the responses that followed gave me an opportunity to flesh out some of the more amorphous points of the debate, I thought I would try to compile it for my own edification, and for that of whoever happens to stumble upon this post. [more...]

The primary similarity between the respective arguments for slavery and for “reproductive rights” is the focus on the “personhood” of the slave and embryo/fetus, respectively. Both arguments for slavery and abortion succeed or fail on this point. If slaves are something less than persons, we are morally permitted to enslave them. (It still may not be a good idea, or a wholesome idea, but at least Aristotle even defended the idea of grooming slaves to be good citizens who would eventually gain their freedom.) And if embryos or fetuses are less than persons, then whatever rights they may or may not have are eclipsed by the woman’s privacy rights. (Or “reproductive rights,” if we are given to such fashionable, albeit droll, terminology.)

Lincoln himself did not believe (as far as the historical record can support) that blacks were “equal” to whites in all respects. And in fact today we know that there are intrinsic inequalities between races. Some races are more predisposed to certain diseases. (My grasp of detailed examples is poor, but I believe the point is readily conceded.) In our personal lives, we need not pretend that we are each equal. We are not. We probably should have a good reason when doing so, but it is not legally required.

We do require our state to have a good reason, however. The state has to have a non-arbitrary basis for treating ANYONE differently. And the forcefulness of the reasoning required escalates depending on the importance of the right at stake. In the case of abortion, we are talking about the most important, most fundamental right that can possibly belong to anyone: the right to life.

But this is getting ahead of ourselves, of course, because we first must decide whether that issue is actually in play—that is, is the fetus a “person”? Can we draw a non-arbitrary line at which a fertilized egg becomes a “person”? No. It simply cannot be done. The best we can do is make approximations, or come up with other fictions that are not any better than the vague term “person” (e.g., “self-awareness” – good luck with that one; I know grown adults who fail this test). Specifically, the argument that personhood depends on self-containment and lack of dependence on the mother is rebutted by pointing to the “famous violinist” hypothetical: waking up and finding that a world-renowned violinist has been grafted to your organs in order to keep him alive brings up some problems of justice, privacy, and self-determination, but one is hard-pressed to argue that the violinist has lost his status as a “person.”

Another less imaginary example is Siamese twins. That these folks are most definitely persons I will take to be uncontroversial. (One reader pointed out that this point was indeed controversial because the twins do not possess “individual” rights. Even assuming, arguendo, that that were true, our Constitution guarantees rights of “persons,” not “individuals.” Thus, such a semantic shift is unwarranted in this context.) What might be controversial is the question of rights as asserted by one twin against the other. For example, if the twins could be separated, but one would certainly die where the other would not, does the latter have a “right” to separate, and thus kill, the other? What about if one had more control over the motor functions? Does the one with less control have any less right to life than the one with more?

These questions lend to solutions that are more pragmatic than rational. That is, they force us to define the meaning and purpose of the lives at stake, and thus make a determination that will best effectuate that purpose. This, of course, irreparably short changes the lives at stake, as their telos (purpose) is defined by the preliminary rule that guarantees their existence. Thus, in an abortion culture, all persons who are born have a right to their lives, but only to the extent of the telos that effectuated their being carried to term, i.e., being wanted by the mother. When it is no longer the case that the new person is wanted by any other living person, their rights terminate. This is the inevitable conclusion of defining the right to life teleologically (i.e., by whether or not the mother “wants” the child) rather than deontologically (i.e., by a society that defines the child’s life as unequivocal, inviolable, and inalienable—the same way it defines the life of any other person).

One of the differences between Siamese twins and a pregnant woman is the issue of timing: one Siamese twin generally cannot claim a superior right to life based on time, although the pregnant woman can. But can this have any bearing? Does a young man have less of a right to life than an old man? We sometimes talk about potential, etc., which might even suggest that the young man has more of a right than the old. But again, this would be a way of defining the right to life teleologically. At any rate, this is too sloppy a way of determining something so important.

Now that we have spent some time talking about the fetus’s right to life, we must discuss the countervailing right that is indisputably at issue, the mother’s right to her body. Abortion rights advocates suggest that requiring a woman to assume the risk of pregnancy and childbearing in order to be sexually active deprives her of liberty in sexual matters. (Although it always seems highly implausible that someone would make this gigglesome argument, I come across it again and again.) There are few areas in which we have perfect, unrestrained liberty. Any number of our actions mete out externalities, and we glean a better and better understanding of the nature and extent of these externalities as time and technology progress. To say that prohibiting one form of “birth control” (a horrifyingly benign expression for abortion, in my opinion) is a “deprivation of liberty” is pointless rationalism. “Pointless” because, yes, it admittedly is a deprivation of liberty; but because nearly all of our liberties are limited in certain ways in order to make political life possible, a mere “deprivation” is not the standard for determining whether it is appropriate or not. There are myriad ways to prevent getting pregnant. Abortion hardly seems a necessary precondition for a woman to enjoy her “sexual liberty” (whatever that means).

It has also been suggested that, even if we assume both the woman and unborn have rights, we don’t require one to sacrifice its rights for the life of another. This is not always the case. Although common law doesn’t impose a “Good Samaritan” duty to affirmatively provide help, the law provides the doctrine of private necessity as a defense to trespassing, for example. In other words, there is no affirmative duty, but there is a negative duty (you cannot recover against one who uses your property, without consent, for his health or safety). One will certainly point out that with pregnancy we are talking about one’s body, not merely property. And I will concede that the doctrine of private necessity certainly has not been construed to this extent. On the other hand, there is the issue of consent that is also different -- private necessity applies even where there is no consent on the part of the landowner, but with pregnancy, the woman has tacitly consented through the volitional act of intercourse. (Again, instances of rape notwithstanding.)

As far as the state is concerned, there are two beings with rights. Given that there is no non-arbitrary way that the state can take the position that the fetus is not a “person,” and given that the right to life is necessarily of greater weight than a right to “sexual liberty,” or to “reproductive liberty” (especially given that in the vast majority of cases, the mother had some say in the conception process), the balancing is a no-brainer—abortion is indefensible in a government that purports to defend life and forbid arbitrary enforcement of rights.

In the end, I believe the only reason people can stomach abortion is the simple pragmatic reason that, hey, I don’t care if the baby is born, and if the mother doesn’t even want it, then who gives a rip?? Abortion can only be “lawful” in the sense that it simply has not yet aroused enough passion in enough people do undo that unrigorous and approximated judicial fiat that now governs the matter.

But that is a debate for the touchy-feelies, not those of us who want a rational explanation. And if we’re being rational, we have to recognize there is no non-arbitrary line. Conception creates a “person.” We can strip away its rights because of the number of cells it has, or because it is located inside its mother’s womb, but we only get away with such justifications if we squint our eyes real hard and pretend they’re good answers. And this is the same way our nation stomached slavery for so long. We might always wonder whether, without Lincoln, we might still have slavery; but we now know that, with or without our current emotional disposition towards that vile institution, it is and always was intrinsically evil. It is my humble and hopeful prognostication that it will be just so with this issue.